40th Annual

BENCH BAR

The Conference

SEPTEMBER 1-4, 2016TOPS'L BEACH RESORT

DESTIN, FLORIDA

the magazine of the Memphis Bar Association Vol. 33, Issue 3

TheHIPAApotamusin the Room

Whats Yours? Whats Mine? Deciphering Tax Implications

in Divorce

2016 Legislative

Recap

The 2015 Federal Rule Changes New Tweaks to Federal Trial Practice

THIS ISSUE:

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3 Volume 33, Issue 3

FEATURES 8 Bench Bar: 40 Years and Counting

BY JUDGE CHILDERS AND KIRK CARAWAY

11 Portrait Unveiling: Judge Donald

12 The HIPAApotamus in the Room: When Lawyers and Law Firms are Subject to HIPAA Enforcement, And How to Comply with the LawBY LESLIE R. ISAACMAN

16 Whats Yours? Whats Mine? Deciphering Tax Implications in Divorce BY SUSAN M. LATTIMORE

18 What?! I Didnt Write that Letter: Avoiding the stealing of your letterhead and signature from emailed lettersBY SEAN HUNT

20 2016 Legislative RecapBY SENATOR MARK NORRIS

26 The 2015 Federal Rule Changes New Tweaks to Federal Trial Practice BY RICHARD CARTER

28 Stevenson: Creating Our Own Identity BY GIGI MCGOWN

COLUMNS 6 Presidents Column

BY SHEA SISK WELLFORD

30 CLC Pro Se Divorce Clinic Provides Fresh Starts, Brighter TomorrowsBY TINA PERRUSQUIA

32 My Journey and Winding Journey to MALSBY M. JEAN HOLBERT, STAFF ATTORNEY

DEPARTMENTS 10 Memphis Bar Happenings

15 Circuit Court ReportBY STEPHEN LEFFLER

22 The Court ReportBY DEAN DECANDIA

34 People in the News

38 Classified Advertisements

4MEMPHIS LAWYERthe magazine of the Memphis Bar Association

2016 MBA Officers

Shea Sisk WellfordPresident

Dean DeCandiaVice President

Earle SchwarzSecretary/Treasurer

Thomas L. ParkerPast President

2016 Board of DirectorsMike AdamsJeremy AlpertMegan ArthurLara ButlerBetsy ChanceAnnie ChristoffJennifer HagermanDoug HalijanJonathan HancockMaureen HollandEarl HoustonCarrie KerleyAndre Mathis

Gigi Gaerig McGownAsia Diggs MeadorElijah Noel, Jr.Lisa OverallJill Steinberg

Section RepresentativesImad AbdullahStuart CanaleMaggie CooperAnne DavisSean HuntToni Parker

ABA DelgateDanny Van Horn

AWA RepresentativeJodi Runger

NBA RepresentativeFelisa Cox

Law School RepresentativeElizabeth Rudolph

YLD PresidentJonathan May

MBA Publications Committee Stephen R. Leffler, Chair

Karen CampbellDean DeCandia

Nicole GridaSean Hunt

Gigi Gaerig McGownHarrison McIver

Jared RenfroeEllen Vergos

Mary WagnerMason Wilson

The Memphis Bar Association145 Court Ave.

Suite 301Memphis, TN 38103

Phone: (901) 527-3573Fax: (901) 527-3582

www.memphisbar.org

The Memphis Lawyer is a publication of the Memphis Bar Association, Inc. that publishes six times each year. The publication has a circulation of 2,200. If you are interested in submitting an article for publication or advertising in an upcoming issue, contact Anne Fritz at 527.3575; afritz@memphisbar.org

The MBA reserves the right to reject any advertisement or article submitted for publication.

MBA STAFF

Anne FritzExecutive Director

Lesia BeachCLE/Sections

Director

Charlotte GeanExecutive Assistant/

Membership Coordinator

Katherine NewsomCommunications and Membership

Director

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PRESIDENT'S

During the Law Week naturalization ceremony, over two hundred new citizens approached the microphone set before the stage at The Cannon Center where the United States District Court for the Western District of Tennessee was in session and stated their name and country of origin. Afterwards, some proudly added, And now, a U.S. citizen!

There was a lot of excitement surrounding their new status and the rights and privileges that accompany citizenship. Two of the privileges most often mentioned by the speakers at the ceremony were voting and jury duty I am going to hazard a guess that those would be unlikely candidates to top the list of privileges if a poll was taken of citizens born in this country. For most of us, our lives are distant from the troubles surrounding governments where voting and jury duty are not rights or are, at most, a sham.

My mother went through a ceremony very similar to the Law Week ceremony a number of years ago. Her story is one that I treasure and has undoubtedly shaped who I am. I will share a small part of it:

My mothers family left Russia during World War II, trying to make their way to France, but were captured by the Nazis and placed in concentration camps my grandmother (pregnant with my mother) in one and my grandfather and uncle in another. My mother was born in the camp and, likely because it was near the end of the war, her family survived. After liberation, the family was reunited. My grandfather was adamant that the only country where he would emigrate was the United States. His experience under Communist rule, then under the Third Reich, made him steadfast in his resolve to live in a country where the Rule of Law was paramount. I do not know if my grandfather would have used the phrase

Rule of Law in expressing what he wanted for his family, but what he saw in America was

A place where the government and individuals were accountable under the law;

A country where laws were applied evenly and fairly, and protected basic human rights; and

A place where justice was delivered timely and ethically.

In short, what he sought for his family was a place where the Rule of Law was observed.

Opportunities to settle elsewhere came and went. With the help of Eleanor Roosevelt, who tirelessly campaigned to open the country to those who had no home, my family was finally accepted and relocated to Snow Lake, Arkansas. It was not an easy transition, but it was one my grandfather embraced.

Immediately following the naturalization ceremony, Bryan Stevenson, the Executive Director of the Equal Justice Initiative in Montgomery, Alabama and a professor of law at New York University Law School, gave a moving speech at another Law Week event about failures in the application of the Rule of Law in America today. He implored us as citizens and attorneys to recognize our history and make a difference by doing four things: (1) getting proximate to problems of poverty and injustice so that they can be fully understood; (2) changing the narrative around issues of race and poverty; (3) having hope; and (4) engaging in activities and dialogue that might make us a little uncomfortable. I cannot begin to explore these points as eloquently as Mr. Stevenson, so if you were not able to attend the luncheon, I highly recommend listening to Mr. Stevensons talk about these four points at a speech given at NYU at bit.ly/bstevenson.

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I am thankful that Eleanor Roosevelt got proximate to the problems of bias, refugees, and immigration during and after World War II. As attorneys, we are trained to get proximate to and solve problems, especially when the Rule of Law is threatened. After Mr. Stevensons speech, I asked myself, what problems can I, and the bar association, get proximate to in our community? Our Access to Justice Committee is one place to start (meetings of the committee can be found at bit.ly/mbaaccesstojustice). I challenge each of us to consider what problems can we, as Memphis attorneys, get proximate to today? Where can we change the narrative and provide hope?

In closing, I will leave you with the words of Mr. Stevenson: The opposite of poverty is not wealth. The opposite of poverty is justice. t

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8I did not attend the very first Bench Bar Conference held at Pickwick Landing State Park in 1976. By all accounts it was a memorable kick off event that resulted in the MBA being invited NOT to return to Pickwick! The late Manuel Scarmoutsos told me about attending the inaugural Bench Bar Conference and encouraged me to attend the next Bench Bar, that it would be an excellent way for me to get to know the judges and other attorneys. I did attend the next Bench Bar held in Arkansas at the Red Apple Inn, and what I discovered is that what was MORE important than my getting to know the judges and other attorneys is that they got a chance to know ME!

Being a judge for many years, I know how difficult it is for the judges to get to know and remember all of the new attorneys who start practicing each year. The judges got to know me on an informal basis and that I did not have two heads (or other strange features) and was doing my best to learn about how to practice law and do a good job when appearing before them.

As I recall we met for at least two years at the Red Apple Inn. (Sidenote: I participated in a program on DUIs and the use of the Breathalyzer. I volunteered to have a few libations and was tested. For those interested in the details I may be persuaded to disclose them at this years conference.) We quickly outgrew the Red Apple Inn and met the next year at Greers Ferry Lake also in Arkansas. After that we settled into attending in Hot Springs, Arkansas, mostly at the historic Arlington Hotel, but a couple of years at hotels near the Arlington. Some years in Hot Springs the Bench Bar was held as early as March to accommodate attendance at the horse races at Oaklawn Park. Occasionally tales are still told of some of the adventures (or misadventures) of some members of

the Bench and Bar at these gatherings. There have been occasional tales regarding "The Worlds Largest Scotch and Water" and "The Jungle Jim Award", but my memory has faded regarding the actual events, (and the participants shall remain anonymous).

During the years we met in Arkansas a group of us would meet on Friday afternoon after court in front of the old MPD Headquarters at Second and Adams. We would all load up in Judge Ann Pughs van (with a trailer behind for luggage) and drive to the conference for the weekend. This group included, among others, Judge Pugh, Justice Janice Holder, Kathryn Hooksanson, Randy Walker and A.V. McDowell. I was always the designated driver. After a stop across the river to stock the ice chest with beverages, we would proceed on the nearly three hour trip to Hot Springs. Lots of great memories created during those excursions!

Bench Bar then moved from Hot Springs to its current venue in Sandestin, Florida, where attendance has continued to grow and reached a record turnout of almost 350 attorneys and judges in recent past. With the move to Sandestin the conference has become a much more family oriented event. The younger (and some not so young) lawyers bring spouses and children (and now grandchildren) to enjoy the Bench Bar entertainment activities. Since moving the venue to Sandestin, it has been held most years in May during Mothers Day weekend. Many people have suggested moving to another time of year to avoid the Mothers Day conflict. So this year the Bench Bar will be held on Labor Day weekend. The committee recognizes that this may create a conflict for some, but felt that that weekend would allow families

Bench Bar:countingyears and40

by ROBERT L. CHILDERS, CIRCUIT COURT JUDGE

9to attend with their children, who would be out of school for the holiday. And it is still warm enough to enjoy the beautiful beaches. It will also give us the opportunity to have new fun events, such as the football watch parties that are planned.

Since I started attending, I have given many young lawyers the same advice that my friend Manuel Scarmoutsos gave to me. I love the Bench Bar and Boardroom Conference. It has meant a great deal to me over the years, I have attended approximately 35 of the 40 conferences. (I love it so much that I have agreed to Co-Chair the committee three times now.) It is an excellent opportunity to get to know and fellowship with the judges and fellow attorneys and contribute to the improvement to the administration of justice in our local court system. The members of the committee have worked extremely diligently to put on another quality conference.

Do yourself, your career (and the profession) a favor and attend this years Bench Bar and Boardroom Conference to be held in Sandestin September 1 4, 2016.

My Bench Bar Experience: Kirk Caraway

Bench Bar, or as the Staff at my Firm calls it, Spring Break for Lawyers, is an event I have attended fifteen of the last sixteen years.

I first went to Bench Bar when I was still a Young Lawyer. My new bosses mandated that I attend, and they attended as well. The experiences and relationships from those fifteen Bench Bars have advanced my career greatly.

I have gotten to know many lawyers in different practice areas that I otherwise would not have met. The social interactions with the judges outside of the courtroom resulted in me feeling more comfortable approaching them in a professional setting. The ability to network at Bench Bar cannot be overstated.

I have also attended many informative and interesting CLEs. I watched Johnny Cochran in a mock trial, attended presentations where judges gave advice regarding practicing in their courts and participated in a voir dire.

I played in volleyball and golf tournaments, ate dinner with many lawyers and judges and cheered for the Grizzlies in the Hospitality Suite.

The personal interaction and camaraderie that is an integral part of Bench Bar only underscores why the

practice of law should be treated as a profession, and not just a business.

I strongly encourage all MBA members to consider attending this years Bench Bar. Hopefully, I will see many of you poolside at Topsl or playing in the Volleyball Tournament.

2016 MBA BENCH BAR CONFERENCE

REASONS TO ATTEND:

Come celebrate the 40th Anniversary of the Bench Bar Conference at Tops'l Beach Resort

September 1-4! You can get an entire year of CLE credit - 15 hours including 3 hours of ethics and professionalism credit - while interacting with

your colleagues at the beach or by the pool.

Meet and mingle with judges U.S. District Court Judge Sheryl Lipman and Chief Magistrate Judge Diane Vescovo; Criminal Court Judges Chris Craft, John Campbell & Mark Ward; General Sessions Judges Gerald Skahan and Loyce Lambert Ryan; Circuit Court Judges Robert Childers, Gina Higgins and Valerie Smith; Probate Court Judge Kathy Gomes; and Juvenile Court Magistrate Sheldon McCall

Interesting CLE programs on legal issues in collegiate athletics; the effect of Obergefell on family & employment issues; communicating with the media; how the courts address mental health issues; and gangs in our community

Fun social & sports events Kick-Off Reception, YLD Sunset CLE, Football Watch Party, Beach Carnival for Kids, Fun Run/Walk, Beach Volleyball Tournament

REGISTER NOW BY VISITING MEMPHISBAR.ORG OR CALLING US AT 901.527.3573

10

Theres lots going on in the legal community. Be sure and check our website, Facebook and Twitter, and Bar Bulletin to stay up-to-date on all MBA Happenings.

Bar Meet: Stay Tuned Bar Meet has been held at Wiseacre in April and Loflin Yard in May. It has been a great event with no agenda, no items of business, just the Memphis legal community getting together.

Check our website, social media and the Bar Bulletin for information on the next Bar Meet.

YLD Habitat for Humanity/ Levitt Shell Night

Saturday, July 16 Be on the lookout for more details to come.

Bar Feud (a Family Feud style event)

Thursday, July 215:00 6:00 pm Survey; 6:00 8:00 pm The Feud

Downtown Central BBQTeam Cost: $200 (includes admission for 5 people and

team participation) deadline for team submissions June 30

Individual Ticket: $30 in advance, $35 at door Admission includes two drink (beer and wine) tickets

and BBQ dinner.For more information, contact

Jennifer Hagerman, jhagerman@BPJLAW.com, or Nicole Grida, nicole.grida@me.com.

YLD Bowling Night: Motion to Strike

Fundraiser for MALSThursday, July 28 6:00 9:00 pmBilly Hardwicks

$10 for your bowling, food, and drinks (until the tab runs out)

40th Annual Bench Bar Conference

September 1-4Destin, FL

HAPPENINGS

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The Portrait Unveiling Ceremony for the Honorable Bernice Bouie Donald, Judge of the United States Court of Appeals for the Sixth Circuit was held April 22, 2016 in the Clifford Davis-Odell Horton Federal Building.

There were many dignitaries present, mayors, other elected officials, clergy, and Judge Donald's family. Many of Judge Donald's present and former colleagues on the bench, from her former and present law clerks, and the portraitist, Jamie Lee McMahan, spoke and shared their memories. Perhaps most remarkable was the pride of place given in the program to Judge Donald's law clerks, all the clerks who have worked for and with her over the years. Many are now in important positions in the legal profession, across the country. One attendee said, In some ways, the ceremony was a reunion of all the alumni, all the classes, of what could fairly be called The Judge Bernice B. Donald Graduate School of Law.

Judge Donald was nominated by President Barack Obama December 1, 2010 for a judgeship on the United States Court of Appeals for the Sixth Circuit to replace Judge Ronald Lee Gilman. The full Senate confirmed Judge Donald to the Sixth Circuit on September 6, 2011 in a 962 vote and she received her commission on September 8, 2011.

Prior to the United States Court of Appeals, Judge Donald received a Bachelor of the Arts degree from

Memphis State University (now University of Memphis) in 1974 and a Juris Doctor degree from Memphis State University School of Law (now University of Memphis Cecil C. Humphreys School of Law) in 1979. She was in private practice in from 1979 to 1980, and then became a staff attorney of the Employment Law & Economic Development Unit, Memphis Area Legal Services. Judge Donald went on to become an assistant public defender in the Shelby County Public Defender's Office from 1980-82.

Judge Donald was elected to Tennessee's General Sessions Criminal Court from 1982 to 1988 while teaching as an adjunct professor at Southwest Tennessee Community College from 1984 to 1989. From 1988-95, she was a U.S. Bankruptcy Judge in the Western District of Tennessee.

On December 7, 1995, Donald was nominated by President Bill Clinton to a seat on the United States District Court for the Western District of Tennessee vacated by Odell Horton. She was confirmed by the United States Senate on December 22, 1995, and received her commission on December 26, 1995. t

Portrait Unveiling

DonaldJudge

Portrait by Jamie Lee McMahan

12

by LESLIE R. ISAACMAN, J.D., M.B.A.

When Lawyers and Law Firms are Subject to HIPAA Enforcement, And How to Comply with the Law

The HIPAApotamus in the Room

The Omnibus Final Rule1 of the Health Information Portability and Accountability Act2 ("HIPAA") extended liability from covered entities3 ("CEs") to business associates4 ("BAs") for failing to safeguard protected health information5 ("PHI") pursuant to the HIPAA Privacy, Security, and Breach Notification Rules.

This change imposed, for the first time ever, direct accountability on business associates, with applicable civil and criminal liability, to comply with HIPAA rules. As a result, business associates are now required to protect PHI the same way that covered entities do.

In addition, the Health Information Technology for Economic and Clinical Health ("HITECH") Act6 regulations have expanded the definition of business associates to include patient safety organizations, health information organizations, and subcontractors. Under HITECH's definition, attorneys who provide services for covered entities (or other business associates) and handle PHI are considered business associates.7 Legal services fall squarely within the purview of HIPAA when a lawyer contracts directly with a covered entity.

Further, HITECH extended compliance obligations indefinitely to downstream subcontractors who provide services to business associates of covered entities. As a result, these so-called "subcontractor business associates" face the same obligations for compliance as first-tier business associates who contract directly with covered entities. Thus, even entities who may not realize it could face legal and enforcement risks and obligations under HIPAA and HITECH.8

Determining Whether You Are a Business Associate

Any person or entity, including any attorney or law firm, who receives PHI for purposes of doing something

on behalf of a covered entity, business associate, or subcontractor, such as providing legal advice, is a business associate. Thus, even attorneys who dont technically practice in the field of health care law may be subject to HIPAA obligations when they receive PHI from their covered entity, business associate, or subcontractor clients.9 Specifically, an attorney is considered a business associate when he or she, for example: Provides compliance support or defense to CEs, BAs,

or subcontractors (whether or not in response to an enforcement action);

Represents a CE, BA, or subcontractor in audits or governmental investigations;

Represents a CE, BA, or subcontractor in any case involving individual patient diagnosis, treatment, or health benefits;

Represents a CE, BA, or subcontractor in transactional work of any nature that involves access to any PHI (including, for instance, accounts receivable or payable information);

Provides representation regarding health care professional discipline, payment or billing disputes, compliance advice, peer review, guardianships, informed consent, end-of-life issues, accreditation, licensing, administrative matters, risk management issues, or the like;

Represents a CE, BA, or subcontractor in matters seeking to enforce restrictive covenants when PHI access is involved; and

Responds to a subpoena requesting PHI in any form.Notably, an attorney may unwittingly become a

business associate by virtue of being hired by an existing business associate of a covered entity. For example, if a hospital's printing vendor, which receives and stores PHI, hires an attorney to provide legal services and then provides the attorney with access to the hospital's PHI, the attorney for the vendor becomes a subcontractor business associate.

As an attorney or law firm, its your obligation to recognize when you are or could be considered a business

13

associate and to then comply with the HIPAA Privacy and Security Rule provisions applicable to business associates. Non-compliance can lead to hefty fines and intrusive governmental investigations, and it can also lead to additional liability by your covered entity or business associate clients.

Complying with the Law as a Business Associate

Because of the HITECH Act, business associates are now directly and specifically liable for complying with the HIPAA Privacy,10 Security,11 and Breach Notification12 Rules. To demonstrate compliance, lawyers and law firms must take specific actions under the law.

Lawyers must implement business associate agreements with their CE or BA clients and with their subcontractor BAs. Law firms must ensure that written policies and internal processes for compliance are established and reviewed, and firms should designate privacy and security officers who are responsible for compliance and training. In addition, lawyers and law firms are charged with actively protecting the confidentiality of any PHI they receive, create, or maintain electronically via encryption, and they must implement administrative, physical, and technical safeguards13 for handling PHI. Further, law firms must conduct risk analyses, along with follow-up implementation of policies and procedures, to ensure compliance and detect potential vulnerabilities. Finally, lawyers and law firms must comply with the requirements and procedures for breach notification.

Business Associate AgreementsBusiness Associate Agreements ("BAAs") are contracts

that specifically define how business associates can use and disclose PHI when performing services.14 In general, BAAs should, at a minimum, include the following:

A designation of permitted and prohibited uses of PHI by the BA;

A requirement for the BA to implement "appropriate safeguards" to protect PHI;

A requirement for reporting "security incidents" to the CE and for compliance with "breach notification" requirements;

An agreement for BAs to properly establish that any subcontractor BAs are in compliance and report as required;15

Allowances for access, amendments, and accounting of disclosures by the CE;

Assurances that a BA's "internal practices, books, and

records" are available for governmental review and audits;

A provision for the return or destruction of PHI upon termination;

Assurances that any PHI used or disclosed meets the "minimum necessary" standard of HITECH;16 and

An authorization for termination of the relationship upon any material breach of the BAA.In addition, due to the potential exposure for liability

under the Breach Notification Rule, CEs and BAs may want to consider including an indemnification provision in their BAAs.

Business associates have long been required to enter into BAAs with their covered entity clients. Under the law, covered entities are not allowed to disclose PHI to their lawyer business associates if there is no properly-executed BAA between them to ensure that PHI is appropriately safeguarded. Thus, as an initial step, attorneys and law firms representing covered entities must ensure that a proper BAA has been implemented.

Engaging Subcontractor Business Associates

In carrying out his or her duties as a business associate, an attorney may need to engage the services of a subcontractor business associate, such as software vendors, copy and printing services, document disposal services, expert witnesses, jury consultants, or billing services. These subcontractor BAs are equally subject to liability, and business associates should take active steps to ensure their subcontractor BAs are in compliance.

Under the HIPAA Omnibus Final Rule and the HITECH Act regulations, business associates must obtain "satisfactory assurances" that subcontractor BAs will safeguard any PHI in their possession. To do so, business associates must enter into BAAs with their downstream subcontractors to monitor compliance. Just as it does with covered entities, the BAA provides the business associate with "satisfactory assurances" that its subcontractors will safeguard and protect any PHI in their possession.

Specific Privacy and Security Safeguards

Business associates are required by the HIPAA Privacy Rule to establish written policies and procedures that address the permitted uses and disclosures of PHI. BAs are also required to designate a "privacy officer" who is responsible for compliance and for training employees on HIPAA as well as internal privacy policies.

Under the HIPAA Security Rule, business associates

14

must implement specific administrative, physical, and technical safeguards to protect against real and potential threats of disclosure or loss. BAs must also designate a "security officer" who is responsible for compliance and for training employees on HIPAA as well as the BAs internal security policies.

In addition, business associates must conduct an entity- and system-wide "risk analysis" to determine potential vulnerabilities to breaches, and they must effectuate policies to remediate risks. The law requires covered entities and business associates to conduct a risk analysis to assess "potential risks and vulnerabilities to the confidentiality, integrity, and availability" of electronic PHI ("ePHI").17 Risk analysis is the first step in identifying and implementing safeguards for compliance with applicable law. Notably, enforcement agencies look first to risk analyses conducted by CEs and BAs, and the failure to perform such risk analyses is the main reason that entities fail governmental audits. Upon completion of a risk analysis, the CE or BA must then put into effect policies and procedures to mitigate or remediate any identified or potential risks or vulnerabilities.

Through the HIPAA Omnibus Final Rule and the HITECH Act regulations, the government has provided a clear message to covered entities and business associates that ePHI (i.e., any PHI that exists or is stored in electronic media) should be encrypted.18 Encryption is "the use of an algorithmic process to transform data into a form in which there is a low probability of assigning meaning without use of a confidential process or key."19

While all privacy and security risks cannot ever be fully eliminated, attorneys should take steps to determine how to ensure that exposure is minimal and risks are reduced as much as possible. Some key areas for concern for business associates to consider include:

Encryption (or lack thereof); Unprotected internet, web browsing, and cookies; Network firewall protections; Hackers, phishing, ransomware, and other cybersecurity

risks and threats; Mobile devices and password protections; Data sharing; Lack of physical security with files and documents

containing PHI; and Staff training and compliance.

Business associates should consider all potential risks and then take steps to enact policies, procedures, and training with respect to any prospective vulnerabilities. For

instance, a law firm that serves as a BA should maintain and enforce a policy and procedure on password requirements for all employees who have smartphones and other mobile devices that may contain PHI.

Breach Notification RuleThe Breach Notification Rule requires business

associates to notify their covered entities following the discovery of any breach of unsecured PHI.20 When breaches occur, business associates must perform additional risk assessments to determine the probability of data compromise, the nature and extent of PHI involved, details of the disclosure, and the extent to which the risk has been mitigated.

"Unsecured PHI" is useable, readable, or decipherable to unauthorized persons; in comparison, "secured PHI" is unusable, unreadable, or undecipherable.21 PHI can become secured only through encryption or destruction; firewalls and access controls (such as passwords) are not sufficient for ensuring that PHI is secured.22 A "breach" is defined as the unauthorized acquisition, access, use, or disclosure of PHI that compromises the security and privacy of the information (except where an unauthorized person to whom the PHI is disclosed would not reasonably have been able to retain such information).23 Pursuant to the HIPAA Omnibus Final Rule, unauthorized disclosures are presumed to be a breach unless the covered entity or the business associate can demonstrate, through a risk assessment, that there is a "low probability that the PHI has been compromised."24

A covered entity must provide notification of any breach within 60 days of discovery (i.e., when the breach was discovered or reasonably should have been discovered). Notably, a covered entity or a business associate is presumed to have knowledge on the day that any employee or agent has knowledge of the breach.

Penalties Applicable to Business Associates for Violations of HIPAA

HIPAA, through the Omnibus Final Rule, adopted significant civil and criminal penalties for enforcement. Following HITECH, there has been an increased emphasis on enforcement and an increase in fines and penalties issued by the U.S. Department of Health and Human Services ("HHS") Office of Civil Rights ("OCR"). Based

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15

CIRCUIT COURT REPORTby STEPHEN LEFFLER

CIRCUIT, DIVISION I CORBIN-JOHNSONCT-001325-14, 3-29-16, 240 Poplar Avenue General Partnership v. Cheryl Gray d/b/a Gray Bail Bond Company and ASAP Bail Bond, Inc., Breach of Contract Landlord/Tenant, Non-Jury, Roger A. Stone for Plaintiff, Tim J. Thompson for ASAP Bail Bond, Inc. and Addie M. Burks for Gray Bail Bond Company, Plaintiff Verdict $28,556.17.

CT-004147-12, 4-14-16, Dees Oil Company v. Magness Oil Company v. Mutuhar Sharhan, Hasan Abdo Ali, Negi Express, Inc., d/b/a County Line Express a/k/a Sheba, Inc. d/b/a Getwell Express., Inducement of Breach of Contract, Jury, Melissa A. Harrison and Taylor A. Cates for Plaintiff, Samuel M. Fargotstein for Defendant, Magness Oil Company, Defense Verdict.

CT-000950-15, 3-21-16, Delilah F. Dabney v. Jonathan B. Strausser., Auto Accident Trial on Damages Only, Jury, Adam Johnson for Plaintiff, Nicholas J. Owens, Jr., for Defendant, Plaintiff Verdict for $11,464.31.

CIRCUIT, DIVISION II RUSSELLNo contested cases tried to verdict in this reporting period.

CIRCUIT, DIVISION III SMITHNo contested cases tried to verdict in this reporting period.

CIRCUIT, DIVISION IV HIGGINSCT-004031-13, 3-3-16, Antoinette Lee v. Memphis-Shelby County Airport Authority, GTLA Slip and Fall Trial on Liability Only, Non-Jury, Kenneth M. Margolis for Plaintiff, Hope Calabro for Defendant, Defense Verdict

CT-001050-15, 3-31-16, Alfonzia and Tonya Biles. v. Tiffany Roby., Breach of Contract Foreclosure, Non-Jury, Drayton Berkley for Homeowners, Brandon McNary for Mortgage Holder, Verdict for Mortgage Holder for $24,700.00.

CT-001561-15, 2-18-16, Commodore Realty, LLC v. Omar Al Rahmani d/b/a Big Daddys Meat Market and Produce, Breach of Contract Landlord/Tenant, Non-Jury, Bruce A. Feldbaum for Plaintiff, Kevin A. Snider for Defendant, Plaintiff Verdict for $24,999.99.

CT-000110-15, 3-3-16, Meagan Cross v. City of Memphis, GTLA Auto Accident Non-Jury, Peter Gee, Jr., for Plaintiff, Foster B. Freeman for Defendant, Plaintiff Verdict for $9,621.70.

CT-001171-16, 4-28-16, Marathon Management, LLC v. Lawrence King FED, Non-Jury, for Plaintiff, Lisa Zacharias, Defendant Pro Se, Plaintiff Verdict for possession only.

CT-002420-13, 2-22-16, Donna Powell, Individually and As Next Friend of Ashley Marie Powell, a Minor v. Charles

Murphy, Beverly Murphy and Hillary Hinkle Recreational Vehicle Accident, Jury, Danny Richardson for Plaintiff, Thomas D. Yeaglin for Defendant, Defense Verdict Charles Murphy: 0% Fault; Hillary Hinkle: 60% Fault; Ashley Powell: 40% fault. Damages for $17,500.00.

CIRCUIT, DIVISION V HURDCT-000295-15, 3-24-16, Poplar Crest Investment Company v. Marvell Williamson and Alishua Chapman Breach of Contract General Sessions Appeal, Non-Jury, T. Tarry Beasley for Plaintiff, Michael R. Working for Defendant, Plaintiff Verdict for $232.65.

CT-006113-10, 4-15-16, Marvin and Patricia Bernatsky v. Designer Baths and Kitchens, LLC. Breach of Contract Construction, Non-Jury, John P. Wade for Plaintiff, Robert A. Wampler for Defendant, Plaintiff Verdict for $6,455.00.

CT-002977-13, 2-25-16, Christy L. Bradley and J. Anthony Bradley v. Laura Bishop, M.D. and Ruch Clininc, PLLC. Med Mal, Jury, Richard Glassman and Lauran Stimac for Plaintiff, William H. Haltom, Jr., and Margaret F. Cooper for Defendant, Defense Verdict.

CIRCUIT, DIVISION VI STOKESCT-002503-14, 4-12-16, Angela Neeley v. Peter Ballenger, M.D., Memphis Obstetrics and Gynecological Association, P.C. and Methodist LeBonheur Healthcare d/b/a Methodist Germantown Med Mal, Jury, Louis P. Chiozza, Jr., for Plaintiff, Craig Conley for Defendant, Methodist LeBonheur Healthcare d/b/a Methodist Germantown, William H. Haltom, Jr., Marcy D. Magee and Naalie Bursi for Defendant, Peter Ballenger, M.D., and Memphis Obstetrics and Gynecological Association, P.C., Defense Verdict.

CIRCUIT, DIVISION VII FIELDSCT-002904-12, 2-22-16, Carol Williamson v. Stephen Pendley Landlord/Tenant, Non-Jury, Catherine Costict for Plaintiff, Paul J. Springer for Defendant, Defense Verdict.

CIRCUIT, DIVISION VIII WEISSNo contested cases tried to verdict in this reporting period.

CIRCUIT, DIVISION IX CHILDERSCT-000577-15, 3-1-16, EZR Management, LLC v. Paul J. Springer d/b/a Springer and Associates Breach of Contract Landlord/Tenant, Non-Jury, Derek E. Whitlock for Plaintiff, Paul Springer, pro se, Plaintiff Verdict for $23,077.81.

CT-002303-14, 12-16-15, Isaiah Hopps, Jr. v. Jacqueline F. Stinnes Med Mal, Jury, Bill M. Wade for Plaintiff, William H. Haltom, Jr., for Defendant, Defense Verdict.

16

As a financial and tax professional, I have a lot of respect for the attorneys who choose to practice in the area of family law. In an area of law so fraught and riddled with intense emotion, Im pleased to lend my services which are predominantly objective, quantifiable and definitive. Numbers and calculations are empirical and factual (although the assumptions for the numbers may not be). Therefore, with knowledge of the financial components and their corresponding tax effects, I endeavor to help assuage the fears that divorcing couples feel about the uncertainty of their respective financial futures. It can also help the attorneys manage the expectations of clients when you can present them with numbers, calculations and tax law.

Family law attorneys are well versed in the marital balance sheet used for determining the division of property between the spouses. In addition to splitting the assets (and liabilities) equitably, its also important to recognize the types of assets that produce income versus those that dont. This can be particularly important as it relates to each spouses current earnings, future potential earnings and then declining earnings (retirement). Types of assets that produce income are: investment accounts, rental real estate and cash (if there is sufficient cash to earn interest). Since each of these types of assets produce income, its necessary to understand the tax consequences of each.

Investment accounts typically generate capital gains from the sales of stocks and bonds, as well as dividend and interest income. Capital gains and qualified dividends are generally both taxed at 15%. However, if the couple is wealthy enough, the earnings on these investments could

subject one or both of them to the additional net investment tax of 3.8%. If adjusted gross income (AGI) is over a certain amount (depending on filing status), the capital gain tax rate could be 20%, plus the 3.8%, placing the overall tax rate at almost 24% (instead of 15%). For Tennessee residents, there could be an additional 5% tax on the dividends, capital gain distributions and interest earned on investments. The income produced by rental real estate is also included in the definition of investment income for the purposes of the 3.8% net investment tax.

Income-producing assets and the potential tax consequences are important because post-divorce tax filing status and dependent exemptions are not nearly as tax-favorable as they are for a married couple filing a joint tax return. The adjusted tax brackets, thresholds and limitations for filing single or head of household can have a significant adverse tax impact depending on the circumstances. The simple chart below illustrates how filing status and number of dependents affect tax rates and liability:

To further this discussion, couples may have a significant amount of wealth allocated

to non-income producing assets, including retirement accounts, a primary residence, vacation home(s) and vacant land. While retirement accounts grow tax-deferred, they are not considered to be liquid assets during pre-retirement age (before age 59 ) since early distributions are subject to a 10% penalty. After age 59 , the retirement accounts are available for distribution, but all distributions on these tax-deferred accounts (not including Roth IRAs) are taxed at ordinary income tax rates. Many people monitor the assets in their retirement accounts since the accounts are invested

Whats Yours? Whats Mine?Deciphering Tax Implications in Divorce

by SUSAN M. LATTIMORE, EA, CFP, The Marston Group, PLC

2015Filing Status

SingleMFJMFJMFSHOHSingle

Number ofDependents

124333

AGI

$150,000 $150,000 $150,000 $150,000 $150,000 $150,000

StandardDeduction

6,300 12,600 12,600 6,300 9,250 6,300

Exemption Deduction

4,000 8,000 16,000 12,000 12,000 12,000

Eective Tax Rate

23%18%18%25%21%23%

Tax Liability

$32,187 $23,938 $21,938 $33,409 $27,066 $29,947

DierenceYear over Year

$(8,249) $(2,000) $11,471 $(6,343) $2,881

17

in the stock market. However, even though the securities in the accounts are increasing or decreasing in value through capital gains or losses (whether realized or unrealized), there is no capital gain tax effect with respect to these accounts.

With all of this data compiled from the couples earnings, income producing assets, non-income producing assets, filing status, exemptions and tax rates, the financial and tax advisors can step in and run financial models for divorcing couples to more accurately project how the combination of assets and income (including alimony, whether received or paid) will sustain them for the remainder of their lives. The amount and term of alimony can be easily changed, prompting the model to re-calculate a new scenario. This process can also be applied to other items including living expenses, the onset of social security benefits and required minimum distributions from retirement accounts. All of these factors affect the couple over time and can be far more illuminating than focusing only on the near term and current economic position. Stated another way, a comprehensive financial analysis can provide some much needed perspective during a changing financial landscape.

Additionally, there is the matter of responsibility for a couples tax liability. As a rule, the IRS expects that if couples are filing a joint return, as certified by their signatures and joint filing status, then to the best of their knowledge they

are aware of what is being reported and that it is correct. Note: Preparation of a return by a qualified tax professional does not relieve the taxpayer of responsibility. Therefore, the IRS holds a couple jointly and severally responsible for the content and the tax liability, meaning that one spouse may be held liable for all of the tax even if all of the income was earned by the other spouse. There are options for abating or shifting liability as well as other possible methods of relief, depending upon the circumstances. If a spouse has any reason to believe the other spouse is being dishonest with their joint return filings, it would be prudent for the suspecting spouse to consider filing as married filing separately until the divorce is final. Filing this way generally satisfies the IRS that the individuals are reporting their separate income, deductions and tax liability, much the same way they would as if they were single.

When a couples world is turned upside-down during the process of divorce, it is reassuring to have a level of certainty with respect to each ones financial security for the foreseeable future, when so many other factors in their lives are vague and unknown. Attorneys armed with knowledge of the couples financial landscape and tax implications can make a big difference in facilitating the process to a reasonable conclusion. t

18

If you are one of the attorneys who still send out letters via email by attaching the document in Word, let this be a warning to you. Stop! There are many reasons why you should never send out Word document. Sending out a document in a word processor format not only gives access to metadata, which by now you might know, but it also gives access to your letterhead and signature.

Weve all heard about the concept of using the fact that Word keeps all of the changes to a document with the document, if you havent, then research metadata from Word and see all of the things that you are giving away when you send a letter via email. But, even if you dont have the metadata in your document, you do have two things that are very important to hackers, spammers and people who might spoof your name and information. In the background, a lot of us have our letterhead with logo and other information. But, when you send out this information in a Word document, it is easily lifted in native format from the document. Its as simple as opening up the header and copying it. The same is true for your signature. Many of us use a graphic image as our signature. But that, too, can be easily lifted from the document simply by copying the image or saving the image.

Instead, the best alternative is provided right in Word. Just click on the File menu and choose Email from the menu. Most of us are using that anyway to send the document via Word. But instead you should choose Send As Adobe PDF if you have Adobe Acrobat Standard on your computer or Send As PDF if you dont have Adobe Acrobat Standard on your computer. It is as simple as that.

Word will then convert the document into PDF format and attach it to an email. If you dont have email native on your computerfor example, you use an online email server such as Gmail, Yahoo, etc.you can still use this to create the PDF for you. When the email opens, you can simply save the PDF document to your computer for uploading to your email account (assuming you dont use Outlook or one of the other MAPI compliant email programs).

Now, you might indicate that you can still copy your signature and your letterhead, but it is not that easy in PDF. First, as the image is sent out it begins to degrade and it becomes easier to see that it is a copy rather than the original. PDFs can be specifically locked so that copying and editing cannot be accomplished. Also, you can easily remove all metadata and prevent any and all changes. Finally, PDFs are universal and therefore it is unlikely that the person or persons you send this document to will not be able to open it. Instead, it will look exactly like the version you have on your screen and can be opened by a host of free programs including Dropbox, Google Drive, iCloud and more. t

by SEAN ANTONE HUNT

Avoiding the stealing of your letterhead and signature from emailed letters

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20

The two-year 109th General Assembly adjourned sine die on April 22. Despite Twains foreboding, with 2535 bills filed during the 2016 session alone (5,363 over both years), and the fewest legislative days ever used in any two-year session, much was accomplished.

Job 1 is balancing the $35 billion annual budget. This was done while increasing reserves, cutting the Hall tax, providing more property tax relief for veterans and the elderly, and issuing no new debt.

Funding included 9 new drug courts and 2 new Veterans courts.

We increased funding for education by record amounts, increased funding for law enforcement including additional state troopers, forensic scientists at the TBI, and staff for District Attorneys.

The FOCUS Act restructured higher education including independent boards for the University of Memphis and five other state universities, and we enacted the Rural Economic Opportunity Act to spur economic development in Tennessees most economically distressed counties.

Transportation received increased funding of $142 million.

Public Chapter 528 codifies the new judicial confirmation plan for appellate courts. Roger A. Page

was confirmed as the first Supreme Court Justice to undergo confirmation by the General Assembly, and J. Ross Dyer was similarly confirmed to the Court of Criminal Appeals. The Senate Judiciary Committee and its House counterpart each meet to publicly interview appointees for approval to the full Senate and House. Then the two Chambers meet in Joint Session to either confirm or reject. If both Chambers vote to confirm, the appointee is confirmed. If both chambers vote to reject, the appointee is rejected. If one Chamber votes to reject by two-thirds, the appointee is rejected. In developing this system, we took great care to respect the doctrine of separation of powers, not only between the branches of government but also of the two Chambers of the General Assembly. Also included in the legislation was the establishment of a Trial Court Vacancy Commission for the purpose of recommending persons to fill trial court vacancies to the Governor.

The Public Safety Act of 2016, Public Chapter 906, came from the Governors Taskforce on Sentencing and Recidivism seeking to reduce crime and stem prison and jail population growth. The Act addresses the most serious offenses driving Tennessees violent crime rate by establishing mandatory minimum sentences for those convicted of three or more charges of aggravated burglary, especially aggravated burglary, or drug trafficking.

It also addresses domestic violence by allowing law enforcement to seek an order of protection on behalf of a domestic abuse victim. Additionally, if a law enforcement officer makes an arrest involving domestic abuse, then an automatic order of protection will be issued when there is probable cause to believe that the alleged assailant used or attempted to use deadly force against a domestic violence victim. A third and subsequent domestic violence conviction becomes a Class E felony under the new law. Third and subsequent domestic

violence convictions were previously a misdemeanor. This change maintains the current minimum 90-day sentence for a domestic violence conviction.

In addition, the measure retools community supervision to reduce the number of people returning

No man's life, liberty, or property (is) safe while the

legislature is in session. -- Mark Twain

Recapby SENATOR MARK NORRIS

Legislative2016

21

to prison for probation and parole violations when their noncompliance does not rise to the level of a new criminal offense. The move is expected to save the state $80 million. Of the 12,588 people entering state prison last year, 5,061, or 40 percent, were probationers or parolees sent to prison because they violated supervision conditions. This legislation authorizes the department to utilize a robust, structured matrix of both sanctions and incentives to facilitate compliance with the conditions of supervision by the more than 71,000 state probationers and parolees.

There were several updates to both the content and execution of wills and other testamentary documents. The Revised Uniform Fiduciary Access to Digital Assets Act, Public Chapter 570, provides protection to the majority of Tennesseans who store property or communications as data on a computer server and access it through the Internet, or as it is know more commonly the cloud. The Act, which has now been introduced or enacted in at least 30 states, allows individuals to designate a fiduciary to exercise control over their digital assets upon death in the same way a traditional fiduciary manages tangible property. As more people store pictures, financial records and other information solely online, a uniform, national system brings certainty both to those using photo storage sites, social media, on line banking and email accounts but also to the providers of those services.

Public Chapter 843, revises requirements for valid execution of wills. For wills executed prior to July 1, 2016, signatures affixed to the self-proving affidavit shall be considered signatures for the will if they were made at the same time the testator signs the will and the affidavit meets the other requirements for acknowledgement under the traditional requirements. Importantly, however, if the signatures of the affidavit are treated as signatures on the will, they will not also serve as a self-proving affidavit under present law.

Public Chapter 1034 was enacted late in the session in response to a Court of Appeals decision striking down a conviction under the gang enhancement law for lack of nexus. By requiring that, except in cases where there is already proof that the criminal act was committed in order to join a gang, the criminal offense must be committed at the direction of, in association with, or for the benefit of the defendant's gang or a member of

the defendant's gang.

Miscellaneous bills of interest include Public Chapter 329 allowing the state to make a timely objection, for good cause shown, to the defendants waiver of preliminary hearing. Public Chapter 755 allows the Supreme Court, upon its own motion, to assume jurisdiction over an undecided case when there has been notice of an appeal or application for interlocutory appeal. The Court must find a compelling public interest in order to assume jurisdiction. Public Chapter 582 allows sheriffs to collect the same full payment for unsuccessful service of process as they would for successful service if that service is attempted in accordance with current law.

Former Senator, now Chancellor, Jim Kyle used to say, If you dont have a special interest, you dont have an interest. Lawyers should be especially interested in the enactment of, or failure to enact, laws affecting our communities. When the 110th General Assembly convenes in January, I encourage you to take time out of your practice for engagement and advocacy in Nashville. t

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22

THECOURT REPORT

CRIMINAL COURTCovers the weeks of March 21, 2015 to May 9, 2016

COURT JUDGE VERDICT

DIV. I SKAHAN 1. STATE V. DARIN WOODS: Trial from Mar 28 to 31. Indicted for Criminal Attempt: 1st Degree Murder, Aggravated Robbery, Criminal Attempt: Aggravated Robbery, Employment of a Firearm During the Commission of a Dangerous Felony. Verdict: Guilty of Criminal Attempt: 2d Degree Murder and remainder of counts as indicted. Prosecution: Pam Stark, Sam Winnig. Defense: Billy Gilchrist.

2. STATE V. DAVID BLACK: Trial from Apr 19 to 22. Indicted for Criminal Attempt: Rape of a Child, Aggravated Sexual Battery. Verdict: Guilty as indicted. Prosecution: Abby Wallace. Defense: Nick Cloud.

3. STATE V. DEANDRY PETERSON: Trial from May 9 to 13. Indicted for Aggravated Rape, Aggravated Robbery, Aggravated Burglary, Possession of a Firearm During the Commission of a Dangerous Felony. Verdict: Guilty as indicted. Prosecution: Carrie Shelton, Abby Wallace. Defense: Billy Gilchrist.

DIV. II WRIGHT 1. STATE V. SHANERICK ABRAHAM: Trial from Mar 21 to 22. Indicted for Aggravated Robbery. Verdict: Guilty as indicted. Prosecution: Austin Scofield. Defense: John Scott.

2. STATE V. DEON ARNOLD, GENNAREO ODOM: Trial from Apr 11 to 13. Both defendants indicted for Aggravated Robbery; Odom indicted for additional count of Possession of Marijuana. Verdict: Arnold found guilty of Assault; Odom found guilty of Possession of Marijuana. Prosecution: Austin Scofield. Defense: Charles Mitchell for Arnold; Juni Ganguli for Odom.

3. STATE V. JULIUS HULL: Trial from May 9 to 11. Indicted for Possession of Marijuana with Intent to Sell, Possession of Marijuana with Intent to Deliver, Possession of Firearm During the Commission of a Dangerous Felony. Verdict: Not guilty. Prosecution: Bo Summers. Defense: Jeff Woods.

DIV. III CARTER 1. STATE V. RHONDA WARNER: Trial from Apr 4 to 7. Indicted for DUI, Reckless Driving. Verdict: Guilty as indicted. Prosecution: Billy Bond. Defense: Vicki Green.

2. STATE V. LATOYA BROWN: Trial from Apr 11 to 13. Indicted for 2 alternative counts of DUI, Reckless Driving, 3 counts of Leaving Scene of an Accident involving Bodily Injury, 1 count of Leaving Scene of an Accident Involving Property Damage. Verdict: Guilty of Reckless Driving, Leaving the Scene of an Accident Involving Property Damage. Prosecution: Billy Bond. Defense: Blake Ballin.

3. STATE V. TERRIOUS CRAFT: Trial from Apr 28 to 29. Indicted for Aggravated Robbery. Jury hung, then guilty plea to Theft of Property $501 to $999. Prosecution: Bridgett Stigger. Defense: Katherine Oberembt, Jim Hale.

4. STATE V. SEAN FARRIS, DARRYL GOODMAN: Trial from May 2 to 5. Both defendants indicted for Aggravated Robbery. Verdict: Farris found guilty as indicted; Goodman found guilty of Facilitation: Aggravated Robbery. Prosecution: Dru Carpenter, Gavin Smith. Defense: John Dolan for Farris; John Holton for Goodman.

DIV. IV BLACKETT NO JURY TRIALS TO COMPLETION THIS PERIOD.

DIV. V LAMMEY 1. STATE V. ROBERT PERKINS, MONTERRIO PIPKINS: Trial from Mar 28 to Apr 1. Both defendants indicted for 3 counts of Criminal Attempt: 2nd Degree Murder, 3 counts of Employment of a Firearm During the Commission of a Dangerous Felony, 3 counts of Aggravated Assault. Verdict: Both defendants found not guilty. Prosecution: Tyler Parks, Gavin Smith. Defendants: Charles Waldman for Perkins; Coleman Garrett for Pipkins.

2. STATE V. SHANIQUA ATKINS: Trial from Apr 11 to 13. Indicted for Vandalism $1,000 to $9,999. Verdict: Not guilty. Prosecution: Tyler Parks. Defense: Glover Wright.

3. STATE V. WILLIE MORGAN, ASHLEY PROCTOR: Trial from Apr 18 to 21. Both defendants indicted for Aggravated Robbery. Verdict: Both defendants found guilty as indicted. Prosecution: Tyler Parks, Gavin Smith. Defense: John Zastrow, John Stanton for Morgan; John Dolan for Proctor.

4. STATE V. QUANTEZ PERSON: Trial from May 2 to 5. Indicted for Aggravated Rape, Criminal Exposure to HIV. Verdict: Guilty of Criminal Exposure to HIV. Prosecution: Abby Wallace, Cavett Ostner. Defense: Claiborne Ferguson.

5. STATE V. DONNA BURNS: Trial from May 9 to 11. Indicted for Aggravated Robbery. Verdict: Guilty of Theft of Property $500. Prosecution: Gavin Smith. Defense: Coleman Garrett.

DIV. VI CAMPBELL 1. STATE V. KERRY GRANDERSON: Trial from Apr 4 to 8. Indicted for Aggravated Robbery. Verdict: Guilty as indicted. Prosecution: Bridgett Stigger. Defense: Mark Mesler.

2. STATE V. MARCELLUS WOODS: Trial from Apr 18 to 20. Indicted for Aggravated Robbery. Verdict: Guilty as indicted. Prosecution: Leslie Fouche, Olivia Brame. Defense: Genna Lutz.

by DEAN DECANDIA

23

CRIMINAL COURTCovers the weeks of March 21, 2015 to May 9, 2016

COURT JUDGE VERDICT

DIV. VII COFFEE 1. STATE V. MANDRELL SANDERS: Trial from Mar 21 to 23. Indicted for Aggravated Burglary. Verdict: Guilty as indicted. Prosecution: Stacy McEndree, Austin Nichols. Defense: Pro se (elbow counsel Mike Gatlin).

2. STATE V. JESSEE HUDSPETH: Trial from Mar 28 to 31. Indicted for Aggravated Robbery. Verdict: Not guilty. Prosecution: Jose Leon. Defense: Robert Amann.

3. STATE V. MARQUEL STEWART: Trial from May 9 to 12. Indicted for Aggravated Robbery. Verdict: Guilty as indicted. Prosecution: Steve Ragland. Defense: Hayden Lawyer.

DIV. VIII CRAFT 1. STATE V. BRYANT WILLIAMSON: Trial from Mar 21 to 26. Indicted for 1st Degree Premeditated Murder, Criminal Attempt: 1st Degree Murder, Employment of a Firearm During the Commission of a Dangerous Felony. Verdict: Guilty as indicted. Prosecution: Carla Taylor, Reggie Henderson. Defense: Charles Waldman.

2. STATE V. MARIO HUBBARD: Trial from Mar 28 to 29. Indicted for Burglary of a Motor Vehicle. Verdict: Guilty as indicted. Prosecution: Carla Taylor. Defense: John Holton.

3. STATE V. CORNELIUS PERRY, DANTRELL PICKETT: Trial from Apr 19 to 22. Both defendants indicted for 2 counts of Especially Aggravated Kidnapping, Aggravated Robbery, Aggravated Burgaryacting in concert, Employment of a Firearm During the Commission of a Dangerous Felony; Perry indicted for additional count of Felon in Possession of a Firearm. Hung Jury. Prosecution: Chris Lareau. Defense: Randall Rhea for Perry; Larry Sims for Pickett.

4. STATE V. MICHAEL RIMMER: Trial from Apr 25 to May 7. Indicted for 1st Degree Premeditated MurderCapital. Verdict: Guilty as indicted. Sentence: Death. Prosecution: Pam Anderson, Rachel Sobrero. Defense: Paul Bruno, Robert Parris.

DIV. IX WARD 1. STATE V. CEDRIC HENDERSON: Trial from Apr 4 to 6. Indicted for 2 counts of Domestic Assault. Verdict: Not guilty. Prosecution: Greg Gilbert, Sarah Poe. Defense: Andre Mathis.

2. STATE V. DANYELLE MCCULLOUGH: Trial from Apr 18 to 21. Indicted for Theft of Property $1,000 to $9,999, Forgery $1,000 to $9,999. Verdict: Guilty as indicted. Prosecution: Byron Winsett. Defense: John Scott.

DIV. X BEASLEY 1. STATE V. MAURICE BAXTER: Trial from Mar 28 to 31. Indicted for Aggravated Rape, Aggravated Burglary, Employment of a Firearm During the Commission of a Dangerous Felony, Theft of Property $1,000 to $9,999. Verdict: Guilty of Aggravated Rape, Aggravated Burglary, Theft of Property $1,000 to $9,999. Prosecution: Josh Corman. Defense: Eugene Belenitsky.

24

ALTERNATIVE SPRING BREAK

This year, the Public Action Law Societys Alternative Spring Break (ASB) program theme focused on a core principal of the ASB Program: help make Memphis a better place for all. This years program, Building Community: Removing Blight, Restoring Hope saw sixty-three law students from five different law schools assist over 150 clients needing legal services. Two new service tracks were introduced as well Veterans Benefits and Juvenile Law.

Both tracks saw heavy workloads. The Veterans Benefits track spent the week working with Support Services for Veterans Families project at Memphis Area Legal Services. Students on the Veterans Benefit Track assisted veterans by performing screenings, assisting with benefit claims and status changes, and helping low income Shelby County residents apply for low interest mortgages and avoid eviction. Concurrently, the Juvenile Law track students were working at the Shelby County Juvenile Court to clear a backlog of Foster Care Review hearings. Over the course of ASB, the two teams of the Juvenile Law track sat on review boards and saw 34 children for review hearings. During the hearings, the students spoke with Department of Children Services (DCS) workers, foster children, and any interested party.

Students also participated in our Civil Rights Restoration, Family Law, Immigration, Elder Law, and Research and Writing tracks. The Civil Rights Restoration track screened thirteen clients for eligibility and spoke with Just City about their work in Memphis and Shelby County. The Family Law track worked as a hybrid service track by focusing on pro-se divorces and assisting victims of domestic violence, in conjunction with MALS and the Family Safety Center. The Immigration track, under the supervision of attorneys from the Community Legal Center and Latino Memphis, completed sixteen Deferred Action for Childhood Arrival (DACA) applications.

The Elder law track worked under the supervision of David Cook of the Hardison Law Firm and Kerry Krauch of the Community Legal Center to assist sixty-nine senior

Memphis Bar Foundation

In Practice:by TUCKER K. MARSHBURN, President, Public Action Law Society

25

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citizens of Memphis with notarized advance directives, notarized medical power of attorney, and general legal questions. Under the supervision of Environmental Court Referee John Cameron, the Research and Writing track produced an Action Plan form to assist defendants sued under the Neighborhood Preservation Act. The students also drafted two city ordinances. One

ordinance, if adopted, will establish a local rental property and owner registry, to assist Code Enforcement locate neglectful property owners. The second ordinance drafted by the students will modify the language in the current housing code to allow the city to recoup the cost of multiple inspections by code enforcement due to noncompliance.

It is my hope, and that of PALS, that the services these dedicated law students, attorneys, and legal

service providers completed for the underserved and underrepresented members of the Memphis community will improve lives and assist in building a stronger Memphis. On behalf of PALS and everyone involved in bringing Alternative Spring Break to life each year, thank you for your support. t

26

On December 1, 2015, after more than five years of discussion, debate and hearings, several changes were made to the Federal Rules of Civil Procedure (Federal Rules). The changes are designed to reduce costs, prevent delay, promote cooperation among the parties, clarify the scope/breadth of discovery and encourage early and active judicial management. This discussion isnt an in depth analysis of the amendments, but an overview of only the changes to Rules 1, 4, 16, 26, 34, 37 and 84.[1]

RULE 1 The Scope and Purpose of the Federal Rules was changed to state [The Federal Rules] should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. Rule 1 (emphasis added to new wording). Rule 1 is very important but often overlooked. The change was made so the parties share the responsibility to employ the rules in the same way [as the court]. Rule 1, Advisory Committee Notes 2015 (Committee Notes). The Committee Notes go on to state that [e]ffective advocacy is consistent with and indeed depends upon cooperative and proportional use of procedure. Id. (emphasis added). Litigants should consider invoking Rule 1 for example, when their opponent in discovery is trying to kill a gnat with a bazooka. Also consider Rule 1 and its specific scope when requesting a limitation or procedure that would streamline the litigation process.

RULE 4 Changes to Rule 4 help to speed cases along by reducing from 120 days to 90 days, the time after filing a complaint by which a plaintiff must serve the defendant. Rule 4(m). If the service isnt timely made, the court must dismiss the action without prejudice against that defendant or order that service be made within a specified time. Id. Importantly, by shortening the time to serve a complaint under Rule 4(m), this also shortens the time for relation back. Committee Notes.

RULE 16 Four amendments were made to Rule 16. The first deletes the provision that allowed scheduling conferences to be conducted by telephone, mail, or other

means. Rule 16(b)(1)(B). The Committee Notes state that the deletion was made because direct and simultaneous communication with judges is most effective. This fosters early and active court participation in each case.

The second amendment requires the judge, absent a finding of good cause for delay, to issue a scheduling order within 90 days after a defendant has been served or 60 days after a defendant has appeared whichever comes first. Rule 16(b)(2). This is another effort to speed cases along.

The third change to Rule 16 adds that the scheduling order may also include, agreements reached under Federal Rule of Evidence 502. Rule 16(b)(3)(B)(iv). Rule 502 of the Federal Rules of Evidence describes the evidentiary treatment of privileges and work product material and the impact of waiver. Litigants could greatly simplify disputes in the event of subsequent, unintended disclosure of privileged material by making their agreements a part of their scheduling orders.

Fourth, Rule 16 now permits scheduling orders to include language that direct[s] that before moving for an order relating to discovery, the movant must request a conference with the court. Rule 16(b)(3)(B)(v). The Committee Notes observe that many courts that hold pre-motion conferences find them to be an efficient way to resolve most discovery disputes without the delay and burdens attending a formal motion[.] Id. Litigants should carefully consider requesting such conferences as part of scheduling orders to reduce litigation costs. Note, however, that this rule is permissive, not mandatory; courts are not obligated to adopt this procedure even if the parties request it.

RULE 26 The most significant changes made in 2015 are to the scope and standard for discovery. Anyone who has practiced in federal court for very long knows the phrase reasonably calculated to lead to the discovery of admissible evidence. Indeed, many litigants have made this their mantra when they object to production requests. These words have been removed from the scope and limits of discovery under Rule 26(b)(1). Now discovery is allowed regarding: any nonprivileged matter that is relevant . . . and proportional to the needs of the case, considering the importance of the issues at stake in the actions, the amount in controversy, the parties relative access to information, the parties resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible to be discoverable.

Rule 26(b)(1). The Committee Notes stress that this is not a change, but rather a rephrasing of what the Federal Rules have always stated. The present amendment restores the proportionality factors to their original place in defining the scope of discovery. Committee Notes. Also,

by RICHARD CARTER

The 2015 Federal Rule Changes

New Tweaks to Federal Trial

Practice

by reference to relative access to information, which the Committee refers to as asymmetric information, the court may give deference to the party that has far less access to information. These changes likely will alter the way litigants view the scope of discovery. When the claim is small but the costs of discovery are large, a litigant may argue that the discovery needs to be simplified and streamlined to make it proportional to the claim. On the other hand, if the social issue is substantial but the cost of discovery would be large, a litigant may argue that justice will be served by a quest for the truth whatever the cost.

Rule 26(c)(1) has been changed to add that protective orders may allocate the expenses for certain discovery. For example, if a party seeks a protective order because of the cost of e-discovery, the court is expressly allowed to permit the request, but allocate who pays the expense of that discovery.

Rule 26(d)(2) and Rule 34(b)(2) have been changed to permit early service of document requests rather than having to wait until the Rule 26(f ) conference. A party may serve Rule 34 requests for documents more than 21 days after service of the summons and complaint. The Responses, however, arent due until 30 days after the parties first Rule 26(f ) conference. Rule 34(b)(2)(A). By serving Rule 34 discovery requests early, youd give your opposition more time to respond, which should result in fewer requests for extension. Moreover, early Rule 34 requests will allow parties to meaningfully discuss any objections or concerns during the Rule 26(f ) conference.

Under new amendments to Rule 26(f ), the discovery plan submitted to the court must include the parties views on preservation of electronically stored information. Rule 26(f )(3)(C). Therefore, if you have any specific concerns about preservation of e-discovery, you should discuss them in the Rule 26(f ) conference and present them to the court as part of the discovery plan.

RULE 34 Rule 34, in addition to the change previously noted, has been amended to require a responding party to state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response. Rule 34(b)(2)(B). This change seeks to stop the practice by some litigants of responding to discovery and then delaying the production itself. Now documents must be produced by the date set in the request or a reasonable time specified in the response. And, under the amendment of Rule 37(a)(3)(B), if a party fails to produce documents in accordance with Rule 34, the requesting party can move to compel discovery.

A very significant change has been made to Rule 34(b)(2)(C) that increases the burden placed on a party that objects to document requests. Now [a]n objection must state whether any responsive materials are being withheld on the basis of that objection. Rule 34(b)(2)(C). This should stop parties who object to every request and force the requesting party to ferret out whether any responsive documents have been withheld. This will force attorneys to more carefully review their documents and to make more informed decisions before lodging objections.

RULE 37 One of the most difficult areas of modern litigation practice is e-discovery. The advent of computers, cell phones, iPods, personal digital assistants, thumb drives, portable hard drives and the like have created an almost infinite number of places to look for data. With those devices also come a multiplicity of ways data can be lost or corrupted. Rule 37(e) now provides guidance about what happens when electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery. The added language establishes several conditions: in the anticipation or conduct of litigation; lost because a party failed to take reasonable steps to preserve it,; and cannot be restored or replaced through additional discovery. If those conditions exist, and the court finds prejudice to the other party, the court may only order measures no greater than necessary to cure the prejudice[,] unless the court finds that the party acted with the intent to deprive another party of the informations use in the litigation[.] Rule 37(e)(1) & (2). If such intent is found, the court may presume that the lost information was unfavorable to the party, give an adverse jury instruction, or dismiss the action or enter a default judgment. Id. These changes provide the court and the parties with greater clarity about what may or must happen if data is lost.

RULE 84 This rule and the many forms that were included in the Appendix to the Federal Rules have all been removed. Parties no longer can argue that their complaint should not be dismissed simply because it was patterned after one of the form complaints. Rather, precedent contained in Iqbal and Twombly and other cases will control.

Anyone practicing in federal court should know that these amendments have been adopted and should carefully consider how these amendments and the Federal Rules themselves affect his or her matter.

[1] Rules 30, 31 and 33 were only changed to make reference of the new Rule 26 provisions.

28

On Monday, May 2 attorneys and friends of the Memphis Bar Association gathered at the Peabody Hotel for the Memphis Bar Foundations annual Law Week Luncheon honoring the luncheons keynote speaker, renowned public interest attorney Bryan Stevenson.

Paul Tuberville, President of the Memphis Bar Foundation, provided a welcome to attendees, who filled the ballroom at the sold-out event. Tuberville was followed by greetings from City of Memphis Mayor Jim Strickland and Congressman Steve Cohen. Honorary Luncheon Chairperson Judge Bernice Donalds then presented Bryan Stevenson with the Benjamin L. Hooks Award for his significant contributions to social justice.

Stevensons accomplishments in the public interest sphere are numerous and varied. Hes the founder and Executive Director of the Equal Justice Initiative (EJI) in Montgomery, Alabama. As an acclaimed public interest lawyer, Stevenson has dedicated his career to helping the poor, the incarcerated and the condemned. Under his leadership, EJI has won major legal challenges eliminating excessive and unfair sentencing, exonerating innocent death row prisoners, confronting abuse of the incarcerated and the mentally ill, and aiding children prosecuted as adults. Stevensons work fighting poverty and challenging racial discrimination in the criminal justice system has won him numerous awards including the MacArthur Foundation Genius Prize, the National Medal of Liberty from the ACLU and the Olaf Prame Prize in Stockholm, Sweden for international human rights. He is also the author of the New York Times bestseller Just Mercy. A 1985 graduate of Harvard, with both a Masters in Public Policy from the Kennedy School of Government and a J.D. from the School of Law, Stevenson is also a Professor of Law at the New York University School of Law.

Following an introduction by Connie Lensing, Senior Vice President, Legal of FedEx Express, Stevenson began his address acknowledging what a transformative time it is in Memphis. He discussed the importance of identity our identities as Memphians, Americans and as Southerners. Stevenson noted that there is a power in identity, and we have the choice to create identity in something stronger and more durable then the identities of the past. Although as a society we have challenges of poverty and high incarceration rates, there are many things Memphians can do to create our own identity. One is to be proximate to the things that challenge us. Instead of avoiding areas known for poverty or crime or drug abuse, we can choose to get closer to these communities. Another is to change the narrative. Were still burdened with the history of racial inequality and racial terrorism that occurred at the end of the 19th and beginning of the 20th centuries; however, Stevenson praised Memphiss ongoing project to identify and mark the sites of lynchings that occurred here. He stated the only way to treat the disease of slavery and racial inequality is to acknowledge it. Stevenson discussed the importance of staying hopeful that we will get to the place we want to be as a society, because hopelessness is the enemy of justice. Finally, Stevenson suggested that we commit to doing some things that are uncomfortable. When we do uncomfortable things, we are beating the drum for justice. Stevenson concluded his speech noting that hes excited and hopeful about whats happening in Memphis.

Proceeds from the luncheon went to the MBAs Summer Law Intern Program which places minority high school students with law firms, corporate legal departments and governmental agencies. t

by GIGI MCGOWN

Stevenson:Creating Our Own Identity

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30

The last year has been one of change for the Community Legal Center and for me. While Ive been working as a substitute attorney for the CLC since 2010, I formally came aboard as a staff attorney in November 2015 to transition and, ultimately, oversee the Pro Se Clinic.

On March 31, Irene Hallett, the staff attorney who managed the Pro Se Clinic for more than a decade, retired. She largely shaped its current incarnation, developing standard operating procedures and extending its presence by serving on a committee of the TN Supreme Courts Access to Justice Commission which developed standard forms for use by pro se litigants. Irene ran the clinic with efficiency and compassion, doing everything she could to get positive outcomes for her clients.

Irenes shoes are big ones to fill, but Im looking forward to continuing the Clinics work and exploring ways to increase the impact we can have on our clients lives.

The Pro Se Clinics primary function is to assist parents with minor children file uncontested divorces, with the goal to increase parenting time for, and support provided by, the non-primary residential parent. Although some potential pro se litigants become discouraged at first by a process that they find daunting, many are determined and successful in obtaining a final decree of divorce for the cost of the filing fee.

This year, through the end of April, of the 348 people who contacted the Pro Se Clinic, 27 were found to be qualified applicants; of those, with our assistance, 16 litigants filed for divorce and obtained a total of $48,946.68 annually in child support. Most of the remainder who

didnt qualify for the Pro Se Clinic program were referred elsewhere.

Potential pro se litigants start the process with an intake interview to determine eligibility for the Pro Se Clinics services based upon a households financial resources. Those who qualify must then attend three appointments at the clinic, during which they are assisted with drafting a Permanent Parenting Plan, Complaint for Divorce, Marital Dissolution Agreement and Final Decree. The pro se litigant must also contact the Court to set a date for the final hearing.

Establishing child support is an obstacle for many pro se litigants and assisting them with it is key to increasing those who are able to obtain a divorce. In the past, our clients were instructed to contact Shelby County Child Support Services to establish child support before being able to proceed through the clinic. Going forward, we hope to enlist pro bono attorneys to assist pro se litigants in obtaining child support orders and, under some circumstances, assist them with calculating their child support

obligation. Establishing child support more quickly will allow more pro se litigants to benefit from the help we offer at the Pro Se Clinic.

The goal of each of our Pro Se Clinic clients seeking a divorce is the same, to get a fresh start. Even with all the online assistance now available, those unfamiliar with legal process sometimes need hands-on help such as that provided by the Pro Se Clinic. Know that we are there, continuing the work that has been done for so long, but looking for ways to improve outcomes. t

by TINA PERRUSQUIA, CLC Staff Attorney

CLC Pro Se Divorce Clinic

Fresh Starts, Brighter TomorrowsProvides

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