Proposed changes to Rules of Professional Conduct released

The TBA Board of Governors has authorized release of a proposed set of refinements to the Rules of Professional Conduct for comment. The proposal is the first thorough examination of the rules since their adoption in March 2003 and represents a more than two-year effort by the Standing Committee on Ethics & Professional Responsibility. The proposal suggests that changes be adopted in some 20 significant areas, including client consent, confidentiality, conflicts, client file, and material and public statements by prosecutors. TBA President Buck Lewis has written all of the state's specialty and local bar associations soliciting input. Download a memo on the highlights of the proposed changes and a redline of the current rules with proposed changes.

In order for the committee to fully consider the comments before fall action, comments should be addressed to Committee Chair Lucian Pera by Aug. 15.
TODAY'S OPINIONS
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You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

BILL HEATH, AS ADMINISTRATOR OF THE ESTATE OF HAZEL CHRISTINE HEATH, DECEASED, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF HAZEL CHRISTINE HEATH v. NATIONAL HEALTH CORPORATION, ET AL.

Court: TCA

Attorneys:

Lisa E. Circeo, Deborah Truby Riordan, Lexington, Kentucky, for the appellants, Bill Heath, as Administrator of the Estate of Hazel Christine Heath, Deceased, and on Behalf of the Wrongful Death Beneficiaries of Hazel Christine Heath.

John B. Curtis, Jr., Bruce D. Gill, Chattanooga, Tennessee, for the appellees, National Health Corporation; National Healthcare Corporation; NHC Healthcare/Dickson, LLC d/b/a NHC Healthcare Dickson.

Judge: COTTRELL

This application for an interlocutory appeal concerns the enforceability of an arbitration agreement allegedly signed by the decedent upon her admission to the defendants' nursing facility. The trial court granted the defendants' motion to compel arbitration, but granted the plaintiff permission to appeal pursuant to Tenn. R. App. P. 9. We concur with the trial court that this is an appropriate case for an interlocutory appeal.1 We vacate the trial court's order and remand the case to the trial court to allow the parties to conduct discovery and for an evidentiary hearing on the issue of the validity and enforceability of the arbitration agreement.

http://www.tba2.org/tba_files/TCA/2008/heathh_070208.pdf


STATE OF TENNESSEE v. BOBBY R. BAGGETT

Court: TCCA

Attorneys:

Gary J. Hodges, Clarksville, Tennessee, for the Appellant, Bobby R. Baggett.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Lisa C. Donegan, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Bobby R. Baggett, by means of a Rule 9 interlocutory appeal, seeks review of the Dickson County Circuit Court's ruling that the assistant district attorney general did not abuse her discretion in denying his application for pretrial diversion. Following review of the record, we conclude that the relevant factors were properly considered by the assistant district attorney general and that no abuse of discretion occurred. Accordingly, we affirm the trial court's denial of Baggett's application for diversion.

http://www.tba2.org/tba_files/TCCA/2008/baggettb_070208.pdf


STATE OF TENNESSEE v. CHARLES MICHAEL BEAN

Court: TCCA

Attorneys:

Patrick G. Frogge, Nashville, Tennessee (on appeal and at trial); and Jack Butler, Nashville, Tennessee (at trial), for the Appellant, Charles Michael Bean.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Charles Michael Bean, appeals the sentencing decision of the Davidson County Criminal Court. A jury found Bean guilty of three counts of aggravated assault and two counts of reckless aggravated assault. The trial court merged the convictions for reckless aggravated assault with the three aggravated assault convictions, and a sentencing hearing was held. At the conclusion of the hearing, the trial court imposed the minimum sentence of three years for each of the Class C felonies and ordered that Bean serve nine months in incarceration followed by four years of probation. The sentences were ordered to run concurrently. On appeal, Bean argues that the trial court erred in denying him a sentence of total probation. After a thorough review of the record and the briefs of the parties, we affirm.

http://www.tba2.org/tba_files/TCCA/2008/beanc_070208.pdf


DANE LEE DUCKETT v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

F. Chris Cawood, Kingston, Tennessee, for the appellant, Dane Lee Duckett.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Bill Gibson, District Attorney General; and Mark E. Gore, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Dane Lee Duckett, was convicted by a Cumberland County Jury of attempt to manufacture methamphetamine, possession of marijuana, driving on a revoked license, and possession of drug paraphernalia. As a result, he was sentenced to an effective sentence of six years. His convictions and sentence were affirmed on direct appeal. See State v. Dane Lee Duckett, No. E2004-02321-CCA-R3-CD, 2005 WL 2777378, at *7 (Tenn. Crim. App., at Knoxville, Oct. 26, 2005). In this appeal from the denial of post-conviction relief, Petitioner asserts that the trial court improperly dismissed his petition because he received ineffective assistance of counsel at trial. We determine that Petitioner did not receive ineffective assistance of counsel and, therefore, affirm the judgments of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/duckettd_070208.pdf


MATTHEW R. HAKODA v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Matthew R. Hakoda.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Amy H. Eisenbeck, Assistant District Attorney General, for the appellee, State of Tennessee.

The petitioner, Matthew R. Hakoda, appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief from his nolo contendere plea to arson and resulting six-year sentence. On appeal, he contends that he received the ineffective assistance of counsel and that he did not enter his plea knowingly and voluntarily. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/hakodamr_070208.pdf


STATE OF TENNESSEE v. JAMES CARSON HONEYCUTT

Court: TCCA

Attorneys:

Wesley D. Stone, Franklin, Tennessee, for the appellant, James Carson Honeycutt.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William Paul Phillips, District Attorney General; Jared Effler, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

In August 2005, a Claiborne County jury convicted the defendant, James Carson Honeycutt, of two counts of aggravated burglary, two counts of theft of property over $1000, one count of forgery, and one count of possession of drug paraphernalia. The defendant received an effective sentence of thirty-four years in the Department of Correction. On appeal, the defendant argues that (1) the evidence produced at trial was insufficient to sustain his convictions for forgery against one victim and aggravated burglary and theft regarding another victim; (2) the trial court erred by refusing to redact certain irrelevant and prejudicial information from the defendant's pre-trial statement to police; (3) the trial court erred by denying the defendantís motion to sever the counts; (4) the trial court erred by allowing the state to use the defendantís previous forgery convictions for impeachment purposes where the defendant was being tried for forgery and the defendant's statement referenced his presence during other uncharged acts of forgery; and (5) the trial court improperly sentenced the defendant, both in imposing excessive sentences on certain counts and imposing consecutive sentences. After reviewing the record, we conclude that the trial court did commit error as to the defendantís second and third issues, but such errors were harmless. We also conclude that the trial court committed no error as to any of the other issues and therefore affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/honeycuttj_070208.pdf


STATE OF TENNESSEE v. THOMAS EDWARD NICHOLSON

Court: TCCA

Attorneys:

Emma Tennent and Aimee Solway (on appeal) and Mary Kathryn Harcombe and Amy D. Harwell (at trial), Nashville, Tennessee, for the appellant, Thomas Edward Nicholson.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Rachel M. Sobrero and Lori Hulin, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

A Davidson County Criminal Court jury convicted the appellant, Thomas Edward Nicholson, of theft of property valued one thousand dollars or more but less than ten thousand dollars, and the trial court sentenced him as a career offender to twelve years in confinement. On appeal, the appellant contends that (1) the trial court erred by ruling that his wife opened the door to cross-examination about his having prior felony theft-related convictions and (2) the evidence is insufficient to support the conviction. Based upon the record and the partiesí briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/nicholsont_070208.pdf


STATE OF TENNESSEE v. JENNIFER LYNN STINNETT

Court: TCCA

Attorneys:

Raymond W. Fraley, Jr., Fayetteville, Tennessee, for the appellant, Jennifer Lynn Stinnett.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Charles Crawford, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Jennifer Lynn Stinnett, appeals from the sentencing decision of the Marshall County Circuit Court. The Defendant was indicted for over two hundred offenses (Class D and E felonies and Class C misdemeanors) as a consequence of her scheme to unlawfully obtain prescription drugs. She subsequently pled guilty as charged. Following a sentencing hearing, the trial court imposed an effective twelve-year sentence and ordered the Defendant to serve 365 days in jail, followed by probation for the remainder of her sentence. On appeal, the Defendant argues that the trial court erred in denying her request for full probation. After a review of the record, we find no error in the denial of total probation. We remand for entry of corrected judgments.

http://www.tba2.org/tba_files/TCCA/2008/stinnettj_070208.pdf


HUBERT L. WALTON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Robert C. Richardson, Jr., Columbia, Tennessee, for the Petitioner, Hubert L. Walton.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; David H. Findley, Assistant Attorney General; T. Michael Bottoms, District Attorney General; John W. Castleman, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

A Maury County grand jury indicted the Petitioner, Hubert L. Walton, on five counts of rape of a child and five counts of incest. The Petitioner pled nolo contendere to five counts of aggravated sexual battery and five counts of incest. The trial court sentenced him to an effective ten year sentence with no eligibility for probation. The Petitioner brought a petition for post-conviction relief, claiming that he received the ineffective assistance of counsel. The post-conviction court denied him relief, and he now appeals. After a thorough review of the record and the applicable law, we affirm the post-conviction court's judgment.

http://www.tba2.org/tba_files/TCCA/2008/waltonh_070208.pdf


TODAY'S NEWS

Legal News
TBA Member Services

Legal News
House released after 22 years
Former death row inmate Paul House was freed today from a Nashville prison for the first time in nearly 23 years after an anonymous donor paid his bail. House's mother said she doesn't know who the donor is but was alerted to the donation by the Tennessee Coalition to Abolish State Killing. House spoke to reporters and posed for pictures upon release.
Read more in the News Sentinel
Special election to replace court clerk
A special election will be held Nov. 4 to replace Knox County Criminal Clerk Martha Phillips, who served from 1984 until her death Monday. The qualifying deadline for candidates is noon Aug. 21. Phillips also served as clerk of the Fourth Circuit Court. For that position, the county Democratic Party said its executive committee would nominate a candidate at its July 17 meeting. A spokesperson for the Republican Party was unsure how the local GOP would make its nomination. Phillips' chief deputy, Joy McCroskey, is running the clerk's office in the interim.
The News Sentinel reports
New labor firm opens in Memphis
Labor law firm Jackson Lewis LLP has opened an office in Memphis, which will be led by three lawyers from the law firm of Kiesewetter Wise Kaplan Prather PLC. James R. Mulroy II will be partner and resident manager of the new office. Kelly Gooch will be partner, and John Norris will be Of Counsel. According to the firm's web site, the new office will be located in Clark Tower, 5100 Poplar, Suite 2700. The Memphis Business Journal reported the move.

Felons want voting rights back
Tennessee is on track this year to double the number of felons who see their voting rights restored, a sign some say demonstrates an eagerness to vote in November's historic presidential election. And, if a pending voting rights lawsuit succeeds, the number of people banned from voting after serving their sentences could shrink even further. The suit challenges the constitutionality of Tennessee's felon voting rights law, which bars ex-offenders from voting if they owe child support or court-ordered restitution.
The Tennessean has the story
Cases moved after judge injured
Cases scheduled to be heard yesterday in Montgomery County Criminal Circuit Court by Judge Mike R. Jones were moved across the hall to Judge John H. Gasaway's courtroom after court clerks reported that Jones had suffered an ankle injury. Most cases were reset to be heard July 15. Jones plans to be back on the bench July 14, his next scheduled court date.
The Leaf Chronical has more
Colleagues reflect on Bogatin's life
Irvin Bogatin was a Memphis lawyer whose influence and interests extended beyond the courtroom. Colleagues and family reflect on his influence in a piece today by the Commercial Appeal. In related news, his family has requested that memorials be sent to the Memphis Bar Foundation, Baptist Trinity Hospice, Temple Israel or a charity of the donor's choice.
Read the article
TBA Member Services
Guide to pro bono assistance
The TBA YLD has released a new resource to help volunteer attorneys provide meaningful legal services to victims of natural disasters. The 83-page document addresses a wide range of legal and social service issues disaster victims most frequently face. And unlike other resources that have been used in the past, this manual is Tennessee specific.
Download a copy today

 
 
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

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