Hillbilly Homicides: The `Stringbean` Murder Trial Promissory

Transcription

Hillbilly Homicides: The ‘Stringbean’ Murder Trial
■ Promissory Estoppel ■ Humor: Don’t mess with Texas Justice
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Journal
Tennessee Bar
DECEMBER 2004
VOL. 40, NO. 12
www.tba.org
A R T I C L E S
12
FACING IDENTITY THEFT: NEW VICTIMS’ RIGHTS ACT
IMPOSES NEW RULES TO PROTECT YOU
By Kristin E. Solomon
20
HILLBILLY HOMICIDES: THE ‘STRINGBEAN’ MURDER TRIAL
By Donald F. Paine
24
PROMISSORY ESTOPPEL: THE ENFORCEMENT OF GRATUITOUS
PROMISES TO PREVENT INJUSTICE
By Steven Feldman
N E W S &
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I N F O R M A T I O N
New Child Support Guidelines to start in January
Rules changes affect confidentiality, how documents are handled
One-stop mock trial info now on web
Supreme Court Justice Birch resumes full responsibilities
Put your hat in the ring for TBA office
Board proposes bylaws changes
Actions from the Board of Professional Responsibility
D E P A R T M E N T S
On the Cover
Tennesee’s new Identity
Theft Victims’ Rights
Act requires more of
businesses in disposing of
documents with personal
identifying information
on them. Your clients
need to know what’s
expected and how to
keep from becoming
victims. Read about it,
beginning on page 12.
Cover illustration by
Landry Butler.
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President’s Perspective: Drivin’ Miss Pammy
By Charles Swanson
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Letter
5
Jest Is for All: by Arnie Glick
9
The Bulletin Board: News about TBA members
22
Where There’s a Will: Free money:
How insurance + annuity = big profit
By Dan W. Holbrook
29
But Seriously, Folks! Don’t mess with Texas justice
By Bill Haltom
31
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Journal
P R E S I D E N T ’ S P E R S P E C T I V E
Tennessee Bar
DECEMBER 2004
VOL. 40, NO. 12
Journal Staff
Suzanne Craig Robertson, Editor
[email protected]
Landry Butler, Publications &
Advertising Coordinator
[email protected]
Barry Kolar, Assistant Executive Director
[email protected]
Editorial Board
Andrée Sophia Blumstein, Nashville, Chair
Miles Mason Sr., Memphis
Donald F. Paine, Knoxville
Nathan D. Rowell, Knoxville
Jonathan O. Steen, Jackson
The Tennessee Bar Journal is listed in the
Index to Legal Periodicals. The Tennessee
Bar Journal, ISSN 0497-2325, is published by
the Tennessee Bar Association at 221 Fourth
Ave. N., Suite 400, Nashville, TN 372192198, (615) 383-7421, monthly. Periodicals
Postage Paid, Nashville, Tenn. Subscription
price: $60 per year. Members: $22 per year.
Individual issues: $10 per copy. Back issues
sold on an “as available” basis. Statements or
opinions expressed herein are those of the
authors and do not necessarily reflect those of
the Tennessee Bar Association, its officers,
board or staff. POSTMASTER: Send address
correction to Tennessee Bar Journal, 221
Fourth Ave. N., Suite 400, Nashville, TN
37219-2198.
© COPYRIGHT 2004
TENNESSEE BAR ASSOCIATION
Observations from the first “First Man”
Drivin’ Ms. Pammy
I
believe that the only unique aspect of my presidency
of the TBA is that I am the very first TBA president
to have served a term as “First Spouse.” Of course,
most of you already know that my lovely and over-achieving wife, Pam Reeves, served as the first female president of
our association in 1998-99. Not long after her term of office,
I had occasion to write an article in which I talked about a Charles W. Swanson
President
number of things I learned as a result of my experiences as
First Man. This article was first published in Dicta, the
newsletter of the Knoxville Bar Association, so if you are from Knoxville and are thinking you have already read the article that follows, you are probably correct!
Visit our web site at www.tba.org
One of the benefits of having a “celebrity spouse” is that, as she traveled
across the state and beyond to fulfill her various duties, often I was called upon
to serve as her driver, briefcase carrier and general factotum. Sometimes, when
you are merely the shadow to the
person who serves as the center
“Significant lessons about
of attention, you learn some
things that might go unappreciimportant things like
ated otherwise. So, with apologies to Morgan Freeman and that
barbecue, haircuts,
delightful movie “Driving Miss
Daisy,” I would like to share with
football and how
you some of the things I
observed while “Drivin’ Ms.
Pammy.” Significant lessons
insignificant we all
about important things like barbecue, haircuts, football and how
really are in the grand
insignificant we all really are in
the grand scheme of things.
scheme of things.”
During my tenure as “First
Man,” I learned that if you want
real, honest-to-gosh barbecue in this state, you need to go west of Jackson, to
places like Brownsville, Covington and Memphis. I must admit a bias toward a
somewhat dry, vinegar-based barbecue, probably owing to my youth in North
Carolina. Also, I will admit that I actually enjoy eating the soggy, ketchupy stuff
that generally passes for barbecue in east and middle Tennessee … I just wish they
would call it something else because it just ain’t barbecue. Barbecue is what you
can get at the Rendezvous Restaurant just across from the wonderful Peabody
Hotel in Memphis. Dry ribs. If you haven’t tried them, fly, drive or hitchhike to
Memphis without delay. You won’t be sorry.
Speaking of Brownsville, I discovered that if you walk in a barber shop on
Main Street in Brownsville and tell the guy you want just a regular haircut, be
prepared for a buzz cut because, in that part of the country, the “regular” haircut
will leave you with no hair anywhere on your head longer then one-quarter inch.
Printed on recycled paper.
(Continued on page 4)
ADVERTISING POLICY: While the
Tennessee Bar Journal attempts to confine its
advertising to legitimate business endeavors,
the statements and material appearing in the
advertisements are solely the responsibility of
the advertiser. The Journal and the Tennessee
Bar Association do not directly or impliedly
endorse, support or vouch for the authenticity of any representation made in any advertisement appearing herein. The Journal does
not intend to accept any advertising material
that is false and misleading. The Journal
reserves the right to refuse an advertisement
it deems inappropriate.
CHANGE OF ADDRESS: If your address
has changed, please notify the Tennessee Bar
Association at 221 Fourth Ave. N., Suite
400, Nashville, TN 37219-2198, so your
address will be updated for the Tennessee Bar
Journal and other TBA publications.
TENNESSEE BAR JOURNAL, DECEMBER 2004
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(Continued from page 3)
(Obviously, it helped to prepare me for
what was to come!)
Want to make new friends and
acquaintances? Wear an orange tie to
any dinner or reception in the entire
southeastern United States and guys will
come up to you from all over the room to
discuss recruiting, coaching, NCAA
sanctions, athletic strategy and horrible
war stories from the last time their
favorite team had to go to Gainesville.
When the primary topics of the day have
been legal conundrums or bar politics,
you can’t imagine how some folks almost
thirst for an opportunity to talk about
something else. An orange tie is like an
engraved invitation to talk about issues
we really do care about!
The orange tie trick will work in
Paris, Tennessee, but not so well in Paris,
France. As I mentioned, Pam was the
first woman president of the Tennessee
Bar Association. Coincidentally, that
same year for the first time, the leader of
the Paris bar (whom they call a “battonier”) also was a woman. Perhaps not
so coincidentally, Pam was invited to
“Want to make
new friends and
acquaintances? Wear
an orange tie.”
attend the grand ceremony which annually accompanies the opening of the bar
in Paris. Even though driving to Paris
was not an option (to Pam’s regret), she
did invite her driver to accompany her
on this occasion. We discovered that the
French spare no effort or expense in cre-
ating an awesome ceremony to celebrate
the opening of their court. At the ceremony itself (invitation only — no drivers allowed), the guests, decked out in
their finest, were packed into the Palais
de Justice like sardines to hear lengthy
speeches that were completely in French.
In addition to this type of excitement,
for three nights running there were grand
parties and balls to celebrate the occasion. The most magnificent of these was
held on the lower levels of the Palais de
Justice (their version of the Howard
Baker Courthouse, I presume). The
ladies were adorned in gorgeous ball
gowns and evening wear while the men
were in tuxedos. But those men who
really were somebody didn’t just wear a
tuxedo. They also had sashes and medals
and more decorations than most Christmas trees! I sort of felt like I had gone to
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L E T T E R
TENNESSEE BAR
A S S O C I A T I O N
BOARD OF GOVERNORS ■ Charles
Swanson, Knoxville, President; Bill
Haltom, Memphis, President-Elect; Larry
Wilks, Springfield, Vice President; John
Tarpley, Nashville, Immediate Past President; Paul Ney, Nashville, Treasurer;
Cecilia Barnes, Memphis, Secretary; Sam
Elliott, Signal Mountain, East Tennessee
Governor; Sue Van Sant Palmer,
Clarksville, Middle Tennessee Governor; Ed
Stanton, Memphis, West Tennessee Governor; Morris Hadden, Kingsport, Governor
— 1st District; Jim Moore, Knoxville, Governor — 2nd District; Marcia Eason, Chattanooga, Governor — 3rd District; Susan
Emery McGannon, Murfreesboro, Governor — 4th District; Barbara Moss,
Nashville, Governor — 5th District; Claudia Jack, Columbia, Governor — 6th District; Linda Warren Seely, Jackson, Governor — 7th District; Nancy Miller-Herron,
Dresden, Governor — 8th District; George
T. (Buck) Lewis III, Memphis, Governor
— 9th District; Ewing Sellers, Murfreesboro, Speaker, House of Delegates; Cindy
Richardson Wyrick, Sevierville, President,
TBA Young Lawyers Division; Danny Van
Horn, Memphis, President-Elect, TBA
Young Lawyers Division; John McLellan,
Kingsport, President, Tennessee Judicial
Conference; Greeley Wells Kingsport, President, District Attorneys General Conference;
Tom Marshall, Clinton, President, District
Public Defender’s Conference; Gail Ashworth, Nashville, General Counsel.
We have an obligation to provide needed medication for elderly
[This letter is in reference to “Grandma’s Pain: Should claims of under-medication
arise in new theories of elder abuse statutes or traditional medical malpractice negligence?” by Dr. Timothy McIntire, October 2004 TBJ]:
A few years ago, my mother, who was 94, was in a nursing home. She was
receiving excellent care. At least I thought so until I discovered that she had a
pressure wound on her foot. She was in a significant amount of pain. I discussed
with the nursing home director the need for her to be medicated to the point
where she was not experiencing great pain.
I was told that they had concerns about the overuse of narcotics. I explained
to them that my mother, who had not been ambulatory for several years, and
who had never driven a car, was not a risk to peddle the drugs they gave her, out
on the street; and if they did not want to meet me in court, I would suggest they
take care of my mother.
I made a few other suggestions concerning her care. When they started giving her physical therapy, the pressure wound went away. There is a crying need
on the part of families to monitor the way their loved ones are being taken care
of, and to politely ask if something needs to be changed. If polite doesn’t get the
job done, then you might make your suggestions on your own letterhead to get
their attention.
We as lawyers have an obligation to make sure that these people who have
given their lives in the way they raised us, educated us, and served our communities, are not simply warehoused somewhere and allowed to suffer unnecessary pain.
— John E. Acuff, Cookeville
WRITE TO THE JOURNAL! Letters to the editor are welcomed and considered for publication on the basis of timeliness, taste, clarity and space. They should be typed and
include the author’s name, address and phone number (for verification purposes). Please
send your comments to 221 Fourth Ave. N., Suite 400, Nashville, TN 37219-2198; FAX
(615) 297-8058; EMAIL: [email protected].
STAFF ■ Allan F. Ramsaur, Executive
Director; Barry Kolar, Assistant Executive
Director; Sharon Ballinger, Receptionist;
Landry Butler, Publications Coordinator;
Kathleen Caillouette, CLE Administrator;
Anjanette Eash, Youth Court Coordinator;
Sarah Hendrickson, CLE Assistant; Pam
Johnson, Financial Administrator; Byron
Morton, Information Systems Coordinator;
Jonathan Mott, Intern; Michelle K.
O’Neill, Executive Assistant; Lynn Pointer,
Programs Administrator and Sections &
Committees Coordinator; Becky Rhodes,
Access to Justice Coordinator; Megan Rizzo,
Membership Coordinator; Suzanne Craig
Robertson, Editor, Tennessee Bar Journal;
Stacey Shrader, Media Relations and YLD
Coordinator; Roger Spivey, Director of Continuing Legal Education; Katie Wilkinson,
Customer Service & Receivables Coordinator.
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NEWS
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New child support guidelines to start in January
T
he Tennessee Department of Human Services has received
approval from the state
attorney general and has
filed new child support
guidelines with the secretary
of state’s office. The new
guidelines are called an
income shares formula,
which requires that both
parents’ incomes and other
major expenditures, including child care costs and
medical insurance premiums, be considered when
calculating a child support
order. Income shares rules
are currently in use in 33
other states and will take
effect in Tennessee on Jan.
18, 2005.
The TBA is offering continuing legal education
courses throughout December to familiarize lawyers
with the changes. Read
more about the new guidelines and the courses at
http://www.tba.org/news/
Rules changes affect confidentiality,
how documents are handled
Court amends Rule 9 on
confidentiality
The Tennessee Supreme
Court has amended Rule 9
dealing with confidentiality
in disciplinary cases. The
changes came as a result of
the court’s holding last February, which invalidated the
court’s own rule prohibiting
complainants from going
public. The court found that
state and federal First
Amendment guarantees
demanded that clients be
permitted to voice their
concerns. The new rules
provide that once a formal
petition for discipline has
been filed by the Board of
Professional Responsibility
the matter becomes public.
Supreme Court Justice Birch resumes
full responsibilities
After a short period of recuperation, Tennessee
Supreme Court Justice Adolpho A. Birch Jr., has fully
resumed his judicial duties, according to the Administrative Office of the Courts.
Birch, who underwent surgery in July as well as
chemotherapy and radiation treatments, said he has
returned to his normal schedule of activities on and off
the bench.
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They largely follow the
recommendations of the
TBA, filed in August,
including a provision for
protective orders, requiring
written complaints and prohibiting disclosure of private
discipline. The order, issued
Nov. 2, can be seen at
http://www.tba.org/Rules/
rule9_11_2004.html
Documents will be
handled uniformly,
with Rule 15
Court of Appeals Rule 15
was issued Oct. 26, standardizing how records and
documents filed with the
court will be handled. See
the new rule at
http://www.tba.org/rules/
coa_rule15.html.
child_support_11_2004.html.
You’ll also find a link there
to the Department of
Human Services’ Income
Shares Tutorial.
One-stop mock
trial info now
on web
The Tennessee Bar
Association Young Lawyers
Division has made it easier
for anyone interested in
participating in the
statewide mock trial competition to find out more.
There is a new web site
wth this year’s information
as well as a number of general resources on mock trial
and historical data about
mock trial in Tennessee.
Mock Trial Committee
Chair Jordan Keller wrote
this year’s problem. Long
Range Planning Committee Chair David Johnson
spearheaded the push for a
new web site.
Check it out at
http://www.tba.org/
mocktrial and mark your
calendar for the state
competition on March 1819, 2005.
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Deadline to qualify is Feb. 15, 2005
Put your hat in the ring for TBA office
D
uring 2005, the following officers, governors and delegates of
the Tennessee Bar Association (TBA) will be elected
as set forth in the association’s bylaws:
TBA Officers and Board of
Governors Officers
• A vice president (from
the East Tennessee Grand
Division — elected by the
association’s membershipat-large). The vice president
automatically assumes the
office of president-elect in
2006 and president in 2007.
District Governors
• District Governors in
the second, fifth, and eighth
districts will be elected to
three-year terms. They are
elected by the members in
their respective districts.
Those who currently
hold those positions are:
Jim Moore (2nd); Barbara
Moss, who is ineligible for
re-election because of term
limits (5th); Nancy MillerHerron (8th).
Grand Division Governors
TBA Grand Division
Governors are elected
for one-year terms by the
membership in each
grand division.
• An East Tennessee
governor from the 1st, 2nd
or 3rd district.
• A Middle Tennessee
governor from the 4th, 5th
or 6th district.
• A West Tennessee
governor from the 7th, 8th
or 9th district.
Those who currently
Sam Elliott (E), N. Sue Van
Sant Palmer (M) and Ed
Stanton (W).
TBA Delegates to the ABA
House of Delegates
Two members to represent the TBA in the American Bar Association
(ABA) House of Delegates
will be elected for two-year
terms by the TBA membership in 2005. The two positions are designated positions 1 and 3. Position 3
must be held by a young
lawyer (under age 35 or 3
years of practice).
Those who currently
Randall Noel (1) and Cynthia Richardson Wyrick (3).
Special election
TBA Delegate to the
ABA House of Delegates
Position 5, currently held by
Paul Campbell III. The
members will elect for the
balance of a term ending
with the ABA annual meeting in 2006.
Qualifying, balloting &
elections
The officers, governors,
delegates are elected by the
membership as provided by
election procedures with
petitions due Feb. 15,
2005. Ballots will be dis-
tributed by April 1, 2005,
and ballots are due back
May 1, 2005.
To qualify for any of
these offices, a candidate
must file a nominating petition with the executive
director of the TBA. The
petition must contain the
names of 25 members of the
association in good standing. The petition must be
received at the TBA headquarters on or before Feb.
15, 2005.
A ballot containing the
names of all duly-qualified
candidates will be distributed to members on or
before April 1, 2005. To be
counted, all ballots must be
received at the office of the
TBA auditors by the close
of business, May 1, 2005.
Votes will be tallied by the
accounting firm selected by
the Board of Governors in
accordance with Section 44
of the bylaws. If there is
only one duly-qualified candidate for an office by Feb.
15, 2005, that candidate
will automatically be
declared elected.
Questions?
This notice is in accordance with bylaws of the
TBA §15 and 40 through
46. For more information
on running for any of these
offices, visit the TBA’s web
site at http://www.tba.org/
news/elexhandbook.html or
call 383-7421 in Nashville
or (800) 899-6993 for an
election handbook.
TBA House of Delegates
Members of the TBA
House of Delegates are elected in odd-numbered years.
One member of the TBA
House of Delegates from
each Judicial District and
one additional delegate from
the 6th (Knox County),
11th (Hamilton County),
20th (Davidson County) and
30th (Shelby County) are to
be elected in 2005. The following is a list of the current
members of the House from
each district (and one young
lawyer delegate from each
grand division) whose terms
expire this year:
• Deborah Yeomans, 1st
District
• Suzanne Cook, 2nd District
• Jimmie Miller, 2nd District
• Alfred Schmutzer, 4th
District
• Martha Meares, 5th
District
• Douglas Overbey, 6th
District
• Virginia Schwamm, 6th
District
• Neil McBride, 7th District
• James Romer, 8th District
• Loren Plemmons, 9th
District
• Marcia McMurray, 10th
District
• Randy Wilson, 11th
District
• William Killian, 12th
District
• M. Jane Powers, 13th
District
• Vanessa Jackson, 14th
District
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N
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Board proposes bylaws changes
T
wo amendments to the
Tennessee Bar Association bylaws will be
voted on at the January 15
meeting of the Board of
Governors.
The first, a change to
section 19, permits the president of the three state
organizations with voting
seats on the TBA Board of
Governors to designate a
substitute to attend and
vote in his or her absence.
Recent experience shows
that duties of the office of
the president of the Judicial
Conference, the Distict
Attorneys General Conference and the Public
Defenders’ Conference
sometimes lead to conflicts,
making attendance at TBA
board meetings impossible.
Following is the
new wording:
19. Meetings. The Board of
Governors shall meet at least
three times each year, at a time
and place to be designated by
the President. Special meetings
may be called by the President
or by eight members of the
Board. The Board members
designated by virtue of being
President of the Tennessee Judicial Conference, District Attorneys General Conference
and/or the District Public
Defenders Conference may designate,in writing, a member of
their conference to attend and
vote in their absence at any
meeting of the Board of Governors or a committee thereof, but
only for that meeting or portion
thereof.
The second bylaws
amendment, to section 49,
would realign the timing of
the election of Position 5,
the TBA Delegate to the
ABA House of Delegates, to
conform with the term set
in the ABA constitution.
This position, currently
held by Paul Campbell III,
will be subject to a special
election in Spring 2005. See
page 7 for more information
on that election. Following
is the new wording:
49. Election of TBA Delegate, ABA House of Delegates.
The TBA Delegates to the ABA
House of Delegates shall be
elected by a vote of the membership of the TBA. The notice of
election, deadline for filing nominating petitions, ballot preparation, mailing and counting of
ballots, deadline for receipt of
ballots and provisions for contest
of elections shall be the same as
provided for in sections 40
through 46 for the election of
vice president of the TBA.
There shall be no requirement as
to the grand division from which
the candidate shall be nominated
or elected.
The delegate positions shall
be designated by numbers. The
delegate positions with terms
expiring in 2005 and each subsequent two-year period, shall be
designated seats one and three.
The positions with terms expiring
in 2006 and each subsequent
two-year period, shall be designated as positions two, four, and
five. The position to be held by a
young lawyer delegate shall be
designated position three.
Comments on the proposals may be directed to
TBA Executive Director
Allan F. Ramsaur. To read
the complete Tennessee Bar
Association bylaws, go to
http://www.tba.org/
bylaws.html
TBA elections
• Jody Aulds, 15th District
• Ewing Sellers, 16th
District
• Ginger Shofner, 17th
District
• Bryce Ruth, 18th District
• Robert Ross, 19th District
• Gif Thornton, 20th
District
• Neal McBrayer,
20th District
• David Peluso, 21st
District
• Tony Edwards, 22nd
District
• John Lee Williams, 23rd
District
• Charlie Trotter, 24th
District
• Bill Cole, 25th District
8
• Jim Butler, 26th District
• Max Speight, 27th District
• Jerry Flippin, 28th District
• Karen Burns, 29th District
• Jim Bland, 30th. District
• Randy Womack, 30th
District
• Keith Smartt, 31st District
• Michelle Sellers, (young
lawyer) West Tennessee
• David Johnson, (young
lawyer) Middle Tennessee
• Tasha Blakney, (young
lawyer) East Tennessee
Qualifying, Balloting
& Elections
To qualify as a candidate
for the TBA House of Delegates a TBA member must
file a declaration of candidacy with the executive
director of the TBA on or
before Feb. 15, 2005.
A ballot containing the
names of all duly-qualified
candidates will be distributed to members on or
before April 1, 2005. To be
counted, all ballots must be
received at the office of the
TBA auditors by the close
of business, May 1, 2005.
Votes will be tallied by the
accounting firm selected by
the Board of Governors in
accordance with Section 44
of the bylaws. If there is
only one duly-qualified can-
didate for an office by Feb.
15, 2005, that candidate
will automatically be
declared elected.
Questions?
This notice is in accordance with bylaws of the
TBA §15 and 40 through
46. For more information
on running for any of these
offices, visit the TBA’s web
site at www.tba.org/electbook.html or call 383-7421
in Nashville or (800) 8996993 for an election
handbook.
N E W S A B O U T T B A M E M B E R S
The
Bulletin Board
Tennessee Bar Association members may send information about job changes,
awards and work-related news. Send it to The Bulletin Board, c/o The Journal
at 221 Fourth Ave. N., Suite 400, Nashville, TN 37219-2198, or email to
[email protected]. Submissions are subject to editing. Pictures are
used on a space-available basis and cannot be returned.
The firm also announced that Darlene T. Marsh, a
member of the environmental and natural resources
group, has been elected to a three-year term on the Board
of Regents for the American College of Mortgage Attorneys. Marsh, who practices in the firm’s Nashville office,
concentrates her practice in environmental, commercial
real estate, banking, public finance and municipal law.
She was honored recently in August 2004 issue of the
Nashville Business Journal’s “Best of the Bar.”
■
Amy Wood Malone has joined Colbert
& Winstead PC of Nashville where she
focuses her practice in civil and commercial litigation, transportation law, contracts, commercial real estate transactions,
labor and employment law, workers’ compensation and creditors’ rights. A Memphis
native, Malone received her law degree
Malone
from the University of Memphis in 2001.
She is admitted to practice in all state and federal courts
in Tennessee and in the United States Court of Appeals
for the Sixth Circuit.
■
Counsel On Call, a company founded
in 2000 in Nashville and headed by attorney Jane H. Allen recently was ranked 133
of the 500 fastest growing
privately held companies
WYETH CHANDLER, former Memphis mayor and Circuit Court
in the United States as
judge, died Nov. 11 at St. Francis Hospital in Bartlett after suffering a
compiled by Inc. Magazine.
massive heart attack four days earlier. He was 74. He was interred at
Counsel On Call places
Allen
Forest Hill Cemetary Midtown. Chandler was a 1955 graduate of the
attorneys in part-time or
University of Tennessee College of Law.
project positions in law firms and corporate legal departments. The company has
G. NELSON FORRESTER, a well-known community leader and
doubled in size since its inception. It now
retired attorney, died Oct. 31 at his home in Tullahoma after a brief illhas offices in Nashville, Memphis and
ness. He was 75. Forrester was in private law practice for 28 years, after
Atlanta. Allen also is part of an elite
which he headed the Coffee County District Attorney General’s Child
group within the Inc. 500 list: only 8 perSupport Division for eight years. He earned his law degree from the
cent of the companies cited were founded
University of Tennessee, Knoxville. His brother, William Howell Forby women.
rester, is a lawyer in Pulaski.
ewis, King, Krieg & Waldrop PC
recently announced that Isaac T.
Conner joined the firm’s
Nashville office as an associate.
Conner, a native of Knoxville, will concentrate in litigation and sports law. He
earned his law degree from the University of Tennessee with a concentration in
Conner
trial advocacy. Most recently, Conner
served as law clerk for state trial court Judge Thomas W.
Brothers in Davidson County.
■
The law firm of Greenebaum Doll & McDonald has
announced that Lewis Bell has joined its Nashville office
as a member in the tax and employee benefits practice
and a secondary member in the trusts and estates practice.
Bell has 13 years of tax, estate planning, probate, tax
exempt organization and municipal bond experience, and
has spent time as in-house counsel with a hospital holding company. In 2003 and 2004, he was honored in the
Nashville Business Journal’s “Best of the Bar” edition for his
outstanding work in taxation law. Prior to joining
Greenebaum, Bell was a partner with Miller & Martin
PLLC. Bell received his law degree from Cumberland
School of Law in 1980 and his LL.M. in taxation from
the Georgetown University Law Center in 1995.
PA S S A G E S
L
9
N E W S A B O U T T B A M E M B E R S
Chambliss, Bahner &
Stophel PC announced
that five new attorneys
have joined its Chattanooga office, all of
whom previously served
at the law firm of Strang,
Fletcher, Carriger, WalkCarriger
Hudson
er, Hodge & Smith
PLLC. William C. Carriger joined the firm’s
business, real estate and
taxation and estate
preservation sections as
a shareholder where he
will focus on banking
Hitchcock
Willett
law, business organizations and planning, commercial lending,
credit union law, real estate law and tax
exempt organizations. He earned his law
degree from the University of Tennessee
in 1967. Richard T. Hudson also joined
as a shareholder in the firm’s business
section. He received his law degree from
Barham
the University of Tennessee in 1975 and
practices in the areas of real estate acquisitions and
financing, M&A, business organizations and health care.
Frederick L. Hitchcock joined as a shareholder in the
firm’s business and litigation
sections, concentrating his
practice in energy and utilities
Welcome!
as well as environmental
MEGAN RIZZO is the TBA’s
counseling and litigation for
new membership coorditechnology companies and
local governments. He earned
nator. Before coming to
his law degree from the UniNashville, she was develversity of Tennessee in 1977.
opment director for the
Gregory D. Willett joined as
Delaware Chapter of the
a shareholder in the taxation
Alzheimer Association,
and estate preservation secassistant communications
tion, concentrating his praccoordinator for Saturn
tice in estate planning, proCorporation and developbate and estate administration,
ment director for a group
taxation and corporate law.
that provided services for
He received his law degree
adults with disabilities.
from Washington & Lee UniShe has been a court
versity in 1992. Stephen D.
Barham joined the firm as an
appointed special advoassociate in the litigation seccate. She received her
tion, focusing on general litibachelor’s degree in
gation, medical malpractice
psychology from the
defense, bankruptcy and crediUniversity of Delaware
tors’ rights. In 1998, he earned
10
his law degree from the University of Virginia.
■
Kevin C. Kennedy, senior attorney with The Kennedy
Law Firm PLLC of Clarksville, recently received the 2004
Ed Atkinson Individual Volunteer of the Year Award.
This award is given annually to a Clarksvillian who
demonstrates exemplary community service.
■
The Florida-based law firm of Ruden McClosky has
announced that William Sutton Jr., a
partner in its Orlando Health Practice
Group, has been certified in health law by
The Florida Bar. Board certification
acknowledges lawyers who demonstrate
special knowledge, skills, experience and
proficiency in health law and successfully
complete a certification exam. Sutton
Sutton
received his law degree from Florida State
University in 1987. His practice focuses on trial work for
clients in criminal, civil and administrative disputes, as
well as actions involving government agencies and
enforcement authorities. He is a member of the Florida
and Tennessee bars.
■
In the listing last month for John Taylor Moses on the
recent publication of his novel, No Ceremony, his law
school was incorrectly listed. He is a graduate of Ole Miss.
■
The law firm of Burch, Porter & Johnson PLLC celebrated its 100 anniversary this year with a birthday party
on Oct. 27. The firm, founded in 1904 by Charles N.
Burch, Clinton H. McKay and H. Dent Minor, has been
located on Memphis’s Court Square for most of its history
and several of its buildings are listed on the National
Register of Historic Places. From its roots as a law firm
serving railroads and oil companies, Burch, Porter &
Johnson has grown into 48-lawyer firm that provides legal
representation not only to business clients and individuals
but also to governments, educational institutions, and
charitable organizations in Memphis and nationally. In
addition, the firm recently announced that it has opened
a new office in London, England. Serving as representative there is Ralph Lake, a member of the firm who lived
in London for seven years as European counsel with the
Holiday Inn hotel chain. Lake holds an advanced law
degree from the London School of Economics.
■
Julian Bibb, a member of Stites & Harbison PLLC, was
named to the “Williamson 25” list by the Nashville Business Journal and Williamson Works.
N
E
W
S
&
I
N
F
O
R
M
A
T
I
O
N
Reinstated
Howard Brownlow
Barnwell, Chattanooga, was
suspended June 11 for failure
to respond to a complaint of
misconduct. A hearing
panel of the Board of Professional Responsibility recommended the suspension
be dissolved, and he was
reinstated Sept. 17.
•••
Stanley D. Darnell,
Clarksville, was reinstated on
the condition that he conduct his law practice from
one location and enter into a
practice monitoring agreement with another attorney
for two years. He was suspended in 1992 and again in
1995. On Oct. 11 a hearing
panel recommended he be
reinstated, with conditions.
•••
D. Michael Van Sant,
Nashville, was suspended
Jan. 14 for failure to respond
to a complaint of misconduct. A hearing panel recommended the suspension be
dissolved, and he was reinstated Oct. 12, on the condition he have a law practice
management consultation, at
his expense, within six
months of the order.
Suspended
By order of the Supreme
Court of Tennessee, Hixson
attorney Shannon Leigh
Clark was suspended from
the practice of law on Sept.
17. The suspension followed Clark’s entering of a
guilty plea and conviction
on one count of bankruptcy
fraud in the United States
District Court for the Eastern District of Tennessee at
Chattanooga. The district
court ordered that a formal
disciplinary proceeding be
instituted to determine the
extent of final discipline.
Clark will remain suspended pending resolution of
that proceeding.
•••
On Oct.11, the Tennessee Supreme Court
imposed a two-year suspension against attorney David
Randolph Ray, formerly of
Memphis and now residing
in Tampa, Fla. The two-year
period will follow a fiveyear disbarment imposed in
an unrelated proceeding.
Ray will not be able to petition for reinstatement of his
license until January 2011.
At that time, he must prove
by clear and convincing evidence that his reinstatement will not be detrimental to the integrity and
standing of the bar and the
administration of justice or
be subversive to the public
interest. The Board of Professional Responsibility filed
a petition for discipline
against Ray in January
2003, for neglecting a
client’s real estate matter
causing the client to suffer
actual damages. The board
subsequently convened a
hearing panel to review the
case and recommend appropriate action. The panel
recommended a two-year
suspension in March 2004.
In deciding to impose a suspension, the panel cited five
aggravating factors: (1)
Ray’s pattern of neglect in
his real estate practice, (2)
prior disciplinary offenses,
(3) multiple offenses in this
case and the case that led to
Ray’s disbarment, (4) Ray’s
bad faith obstruction of the
disciplinary process and
intentional failure to comply with the rules of the
board, and (5) Ray’s substantial experience in the
practice of law. Ray did not
respond to the board’s petition, did not appear at his
disciplinary hearing and
filed no motions for reconsideration or appeal. The
Tennessee Supreme Court
approved the hearing
panel’s judgment and
assessed the costs of the proceedings against Ray.
•••
Thomas Keith
McAlexander, a Memphis
lawyer, was suspended for
two years by the Tennessee
Supreme Court on Oct. 12.
In 2002 McAlexander was
handling two separate matters for a client and in both
cases he falsified the status of
the proceedings. In the first
case, he prepared a fictitious
order from the Shelby County Circuit Court purporting
to award his client $170,000
in an employment discrimination action. In the second
case, he falsely informed his
client that he had filed a
motion to set aside a dismissal order in an action
pending in the Dyer County
Circuit Court. He prepared
and mailed this fictitious
motion to the client with a
false certification of service
Attorneys reinstated after Rule 21 violation
The following attorneys
have been reinstated, as of
press time, to the practice
of law after complying
with Rule 21, the rule for
mandatory CLE as required
by the Board of Professional Responsibility. They
were all suspended on
Sept. 7, 2004:
Mark Edward Adkins,
Murfreesboro; Arthur
James Andrews,
Knoxville; T. Martin
Browder Jr., Kingsport;
Craig J. Donaldson,
Sevierville; Ernest Lee
Edwards III, Nashville;
Joe Mike Felknor,
Knoxville; Willie Rena
Harper, Knoxville;
Matthew Peter Huggins,
Orlando, Fla.; Richard
Kantor, Jerusalem, Israel;
Martha Haren McCampbell, Knoxville; Clay
Spencer Nails, Corinth,
Miss.; Michael A.
Pietrangelo, Memphis;
Heidi L. Simmons, Mt.
Pleasant, S.C.
11
C O V E R S T O R Y
By Kristin E. Solomon
12
Know the Tennessee Identity Theft Victims’ Rights Act of 2004
our client was recently denied a mortgage even though he pays
every bill on time. Collection agencies have begun leaving urgent
messages on his answering machine. Suspicious, he requested a
copy of his credit report, only to find numerous past due accounts
listed that he never opened. He has fallen prey to an identity thief.
He frantically calls you, seeking advice. What do you tell him?
Y
According to Federal Trade Commission (FTC) data,
2,782 Tennessee residents filed identity theft complaints
with the FTC in 2003.1 Thousands more Tennesseans are
victimized each year, and the numbers are only expected to
increase. To address this growing problem, the Tennessee
legislature recently passed the Identity Theft Victims’
Rights Act of 2004.2 The Victims’ Rights Act, which
replaced Tennessee Code Annotated Section 39-14-150,
went into effect on July 1, 2004. In addition to expanding
the existing criminal identity theft statute, the Victims’
Rights Act places certain obligations on businesses and
other private entities with respect to the disposal of materials containing customers’ personal information. Because
attorneys and law firms themselves routinely deal with the
type of information covered by the statute, they must take
care to comply with the requirements of the Victims’
Rights Act or face potentially onerous penalties. This article discusses obligations placed on Tennessee businesses by
the Victims’ Rights Act; what recourse a client may have;
and what an attorney should counsel a client to do if the
client is victimized.
Duties imposed on Tennessee businesses,
including attorneys and law firms
The Victims’ Rights Act imposes certain duties on private entities and businesses that discard materials containing customers’ personal identifying information. Tennessee
attorneys should not only educate their clients about the
new law, they should also take steps to ensure that their own
business practices are in compliance with the requirements.
The new law requires a business (or other private entity)
to take measures to safeguard customers’ personal identifying information when disposing of records. For purposes of
the duties imposed on businesses, “personal identifying
information” means a customer’s:
• social security number
• driver’s license number
• savings account number
• checking account number
• personal identification number or password
• complete credit or debit card number
• demand deposit account number
• health insurance identification number, or
• unique biometric data.3
13
Tennessee Identity Theft Victims’ Rights Act
Any record that contains a customer’s
personal identifying information may not
be discarded unless, at a minimum, the
business first shreds or burns the record,
erases the personal identifying information, or modifies the record to make the
personal identifying information unreadable. Alternatively, the business may take
action to destroy the customer’s personal
identifying information in a manner that
it reasonably believes will ensure that no
unauthorized persons have access to the
information contained in the record during the time between the record’s disposal and its destruction.
Any private entity or business that
fails to comply with these requirements
may be held civilly liable under the Tennessee Consumer Protection Act, and
subjected to a civil penalty of $500 for
each record that is wrongfully disposed of
or discarded. However, no such penalty
may exceed a total of $10,000 for any one
customer. Additionally, it is an affirmative defense to any civil penalty that the
business used due diligence in its attempt
to properly dispose of customers’ records.
The crime of identity theft
What exactly is the crime of identity
theft under Tennessee law? The Victims’
Rights Act provides that a person commits the offense of identity theft who
knowingly obtains, possesses, buys or uses
the personal identifying information of
another, with the intent to commit any
unlawful act, and without the consent of
the other person or without the lawful
authority to obtain, possess, buy or use
such identifying information. “Personal
identifying information” for purposes of
the crime of identity theft means any
name or number that may be used, alone
or in conjunction with any other information, to identify a specific individual.4
Such information includes the more
obvious, such as a person’s name or taxpayer identification number, date of birth
and address. Also included are items that
come less quickly to mind, such as fingerprints, retina or iris images, and telecommunication access devices.
Under Tennessee law, identity theft is
a Class D felony, which carries a sentence of two to 12 years and a fine of up
to $5,000. Prosecution must begin within four years of commission of the
offense. The Victims’ Rights Act confers
on victims of identity theft all rights
afforded to crime victims under the Tennessee Constitution and the Tennessee
Victims’ Bill of Rights,5 including the
right to receive restitution.
Civil redress for victims
The Tennessee Consumer Protection
Act of 19776 (TCPA) permits a victim of
identity theft to bring a private civil
action against the thief. The victim must
file suit within two years of the date liability arises, or within two years of the
discovery of the liability, if concealed. A
successful plaintiff may recover damages
and reasonable attorneys’ fees and costs.
Although your client may be eager to
haul the perpetrator into court, the
unfortunate fact is that many victims of
identity theft have no idea who stole
their identity. The thief’s name? Your
client’s. The thief’s address? Fake. Even if
the perpetrator is discovered, your client
may very well find that the thief has
Kristin E. Solomon is an associate attorney with Sherrard
& Roe PLC, in Nashville. She is a 2002 graduate of Vanderbilt University Law School, where she was an associate editor of the Vanderbilt Law Review. Solomon's practice is focused primarily on business law. She is actively
involved in pro bono work, most recently incorporating a
nonprofit dog rescue and handling its application for federal tax-exempt status.
Solomon
14
rather shallow pockets.
Some victims have looked to parties
other than the thief for restitution by
bringing civil actions against the financial institutions that issued credit to the
thieves. The majority of these actions
have been brought for failure to comply
with the federal Fair Credit Reporting
Act,7 which imposes certain duties on
credit issuers insofar as they are “furnishers of information” to consumer credit
reporting agencies.8 Specifically, the Fair
Credit Reporting Act requires furnishers
of information to provide accurate information to consumer reporting agencies,
conduct investigations and promptly
report any inaccurate or incomplete
information to the agencies upon notice
of dispute by a consumer.9 But the Fair
Credit Reporting Act does not impose
liability on issuers of credit for negligence
in connection with the original extension
of credit to the imposter.
Identity theft victims sometimes try to
devise creative common law negligence
claims when suing over the issuance of
credit to imposters. Surprisingly few cases
based on state common law theories have
been reported, and none in Tennessee. Of
the reported state law cases, most were
dismissed for procedural reasons without
discussion of the merits.10 Given the lack
of reported cases in Tennessee, Tennessee
courts may look to the decisions of other
state courts when considering a victim’s
common law claim against a credit issuer.
In one of the few reported state law
cases not dismissed on procedural
grounds, an identity theft victim sued
various credit card issuers for the tort of
“negligent enablement of imposter fraud”
under South Carolina law.11 The defendants extended credit to an unknown
identity thief, who proceeded to incur
charges in the plaintiff’s name without
paying the bills. The plaintiff alleged that
the credit card issuers failed to verify or
corroborate the imposter’s identity before
issuing credit in the plaintiff’s name, and
failed to adopt policies that would prevent the issuance of credit to imposters.
Unfortunately for the plaintiff, the
Supreme Court of South Carolina refused
to recognize the tort of negligent enable-
ment of imposter fraud under South Carolina law, stating that issuers of credit
cards do not have a duty to protect victims of identity theft.
It remains to be seen whether the Tennessee courts would entertain a suit
against a credit issuer for, say, negligence
in connection with the issuance of credit
to an imposter. A successful plaintiff
would have to show that the credit issuer
owed a duty of care to the plaintiff, a burden that may prove difficult to meet.
The identity theft victim may
encounter additional difficulties in bringing suit in state court if the address used
by the identity thief is outside Tennessee.
In a 1997 case involving an identity theft
victim in Missouri who sued a credit card
issuer, the Eighth Circuit Court of
Appeals affirmed a lower court ruling that
Missouri lacked personal jurisdiction over
the defendant.12 The defendant, a New
York bank, issued credit cards to an
imposter in the plaintiff’s name, but at a
“Any private entity or business that fails to comply
with these requirements
may be held civilly liable under the
Tennessee Consumer Protection Act.”
New York address. The defendant bank
argued that it did not have the requisite
minimum contacts necessary for a finding
of personal jurisdiction under Missouri
law. The court noted that the bank had
not purposely availed itself of the privilege of conducting activities in Missouri
when it issued credit to a person who supposedly resided in New York.
To further dampen the spirits of a
would-be plaintiff, it remains to be seen
whether an identity theft victim may
bring a private cause of action in Ten-
nessee against an issuer of credit for violation of the Fair Credit Reporting Act.
Several courts, including the Ninth Circuit Court of Appeals, have held that a
consumer may bring a private action
against a furnisher of information (such
as an issuer of credit) for any willful noncompliance or negligent noncompliance
with the Fair Credit Reporting Act.13
However, the United States District
Court for the Western District of Tennessee held in 1999 that a consumer has
15
no such private right of action.14 The
court dismissed the identity theft victim’s
suit against a credit issuer because in the
court’s opinion: (1) enforcement of the
portions of the Fair Credit Reporting Act
that pertain to furnishers of information
is limited to certain federal or state officers, and (2) the provisions setting forth
civil liability do not apply to violations by
furnishers of information. Several courts
in a variety of jurisdictions have vehemently criticized this opinion, emphasizing that it was decided without the benefit of the position of all parties because
the plaintiff apparently failed to prosecute his case and did not file an opposition to the defendants’ motion to dismiss.15 The court adjudicated the motion
to dismiss based exclusively on the defendants’ legal memorandum for dismissal,
and without the benefit of full briefing on
the issue. Given the continued strong
criticism of the case’s outcome, a victim
of identity theft with a claim against an
issuer of credit for violation of the Fair
Find out more
The Tennessee Department of Safety and the Federal Trade Commission
maintain thorough online guides for victims of identity theft, available at
www.tennessee.gov/safety/idtheft.htm and www.consumer.gov/idtheft.
Major credit reporting agencies offer comprehensive guides to repairing credit
and preventing future theft. These guides can be found at the reporting agencies’ web sites:
Equifax
www.equifax.com
Experian
www.experian.com
Trans Union
www.transunion.com
Credit Reporting Act may be successful
in convincing a Tennessee court to revisit the issue.
Counseling the client
Numerous resources are available to
help victims with the often frustratingly
slow process of repairing damaged or
destroyed credit. See the box at right for
a list of helpful web sites.
The attorney should counsel the client
to file a police report immediately upon
discovering the identity theft, and to
obtain an official copy of the report.
Additionally, the client should complete
a fraud affidavit, such as the one provided
by the FTC (available online at
www.consumer.gov/idtheft/index.html).
Credit issuers and the credit reporting
agencies frequently request copies of the
police report and the fraud affidavit as
part of their investigation of the fraud
claim. The client should immediately
contact the credit issuer and the three
major credit reporting agencies to report
the fraud and request that a fraud alert be
placed in his or her credit report. The
client should follow up with written
notice of the fraud. It is important to
emphasize to the client from the beginning to record the name and phone number of every representative with whom
the client speaks, and to retain copies of
all correspondence.
Finally, the attorney should encourage
the client to file a complaint with the
FTC, which acts as a national clearinghouse for identity theft information. An
online complaint form is available at
www.consumer.gov/idtheft/filing_
complaintwftc.html#45.
Dealing with identity theft is a stressful, frustrating process. Attorneys find
themselves in a unique position to combat and prevent identity theft – both as a
resource for the victim and as an advisor
16
What’s new at TennBarU?
TENNBARU ONLINE
The TennBarU online CLE program
continues to grow, with the addition
of several new courses added just in
time to help you meet your 2004 continuing legal education requirements.
Management consultant Suzanne
Rose has two new ethics programs
on TennBarU. One offers guidance
for helping you and your firm avoid
ethics complaints and malpractice claims. A second takes a look at some
of the ethical issues tied to new technologies that are sweeping the legal
profession. Also new is a second course from Virginia Mayo, editor of the
Tennessee Attorneys Memo. Her latest course is titled Recent Developments in Products Liability Law in Tennessee.
TBA ETHICS EXPERTS RETURN WITH
ANNUAL ETHICS ROADSHOW AND MORE
Tennessee Bar Association members continue to play key roles in shaping the
state’s ethics rules, and this month they are again bringing that expertise to CLE
programs that will help you in your practice.
The TBA Ethics Roadshow will travel across the state for the third straight
year with a highly useful program on the Tennessee Rules of Professional Conduct.
This year, the seminar is “Just Sign Here … Conflict Waivers and Engagement Letters Under Tennessee's New Rules.”
Leading the discussion in each location will be either Lucian T. Pera or Brian
S. Faughnan, both of Armstrong Allen, PLLC in Memphis. Lucian is chair of the
TBA Standing Committee on Ethics and Professional Responsibility, and Brian
practices law with Lucian in the area of ethics and professional responsibility and
is a frequent CLE speaker.
The Ethics Roadshow begins Dec. 8 in Memphis, followed by a Dec. 16 stop in
Knoxville, a Dec. 9 session in Nashville and a concluding program on Dec. 17 in Chattanooga. You can find out more or register for any of these programs online at
www.tba.org/onsiteinfo/ethics2004.html or by contacting the TBA at (800) 899-6993.
Of course that’s not your only opportunity to earn ethics hours from TennBarU.
Coming up earlier in December is the Corporate Ethics Update program and a
program on Understanding the new Child Support Guidelines that includes a
one-hour ethics component. In addition, the TBA Environmental Law Section is
presenting a video conference on Environmental Ethics on Dec. 14, the
TennBarU TeleSeminar program presents Ethical Issues for Estate Planners on
Dec. 17 and the TennBarU Online program offers eight hours of interactive programming available 24/7 at www.tennbaru.com.
A SERVICE OF THE TENNESSEE BAR A SSOCIATION
SEMINAR OFFERS HELP
UNDERSTANDING NEW
CHILD SUPPORT GUIDELINES
Learn what the new Child Support
Guidelines will mean to your clients and
your practice in this seminar presented
by some of the most knowledgeable
people in the field.
This program offers the most current
information on the guidelines, and will
teach how you and your clients can get
child support obligations calculated under
the new guidelines for free, online, 24
hours a day. Don’t miss this one-time
opportunity to attend the seminar in person and to have your questions answered
directly by the experts.
December programs will take place
in Memphis, Jackson, Nashville,
Chattanooga, Knoxville and Johnson
City. Register or find out
more at www.tba.org/onsiteinfo/
child_support_2004.html
CLE SKI
To celebrate the 20th year of this popular
program, TennBarU’s CLE Ski returns
to Park City, Utah, on Feb. 13 -19, 2005,
for a week of great programs and great
skiing. Reserve your lodging by Jan. 12.
FIND OUT MORE
www.tennbaru.com • www.tba.org
(615) 383-7421 • (800) 899-6993
TENNBARU: CLE FOR TENNESSEE
to businesses that may otherwise unwittingly provide easy access to discarded
sensitive personal information. And
remember that professionals are favorite
targets of identity thieves: check your
own credit report at least once a year to
ensure that you do not join the growing
numbers of people who fall victim to
identity theft.
Notes
1. Identity Theft Victim Complaint Data:
Figures and Trends in Tennessee, Jan. 1 – Dec.
31, 2003. Federal Trade Commission Report,
Jan. 22, 2004. The author was the victim of
identity theft in Tennessee in 2001 despite having taken all of the recommended precautions.
2. 2004 Tenn. Pub. Acts 911; 2003 Tenn.
HB 3404.
3. Tenn. Code Ann. §39-14-150(g)(2).
Note that the definition of “personal identifying information” for purposes of the crime
of identity theft is much broader. See Tenn.
Code Ann. §39-14-150(e).
4. Tenn. Code Ann. §39-14-150(e). Note
18
that the definition of “personal identifying
information” is narrower with respect to the
requirements placed on businesses. See Tenn.
Code Ann. §39-14-150(g).
5. Tenn. Code Ann. §40-38-101 (2004)
et seq.
6. Tenn. Code Ann. §47-18-2104 (2004).
7. 15 U.S.C. §§1681 et seq.
8. The term “furnisher of information” is
not defined in the Fair Credit Reporting
Act, but has been defined by a Tennessee
court as an entity “which transmits information concerning a particular debt owed by a
particular consumer to consumer reporting
agencies such as Experian, Equifax, MCCA
and Trans Union.” Carney v. Experian Information Solutions Inc., 57 F. Supp. 2d 496
(W.D. Tenn. 1999).
9. 15 U.S.C. §1682s-2(a-b).
10. For example, an identity theft victim
brought an unsuccessful pro se action against a
credit card issuer in the United States District
Court for the Eastern District of New York.
Garay v. U.S. Bancorp, 303 F. Supp.2d 299
(E.D.N.Y. 2004). The identity theft victim
asserted seven causes of action, including aid-
ing and abetting identity theft under the federal Identity Theft and Assumption Deterrence Act of 1998 and state law claims for
negligence (including “failure to provide due
diligence,” “aiding and abetting in a conspiracy to commit conversion,” and “invasion of
privacy”). The court dismissed all the federal
claims because the statutes involved were
criminal and did not provide for a private
right of action. The court declined to exercise
jurisdiction over the state law claims and dismissed those as well.
11. Huggins v. Citibank N.A., Capital One
Services Inc. and Premier Bankcard Inc., 585
S.E.2d 275 (S.C. 2003).
12. Aylward v. Fleet Bank et al., 122 F.3d
616, 619 (8th Cir. 1997). The victim sued on
a theory of tortious communication of
“derogatory credit references.” Id.
13. See Nelson v. Chase Manhattan Mortgage Corp., 282 F.3d 1057, 1059-60 (9th Cir.
2002) (holding that consumer has private
right of action); Vasquez-Garcia v. TransUnion
de Puerto Rico, 222 F. Supp. 2d 150, 157-58
(D.P.R. 2002) (holding that Congress expressly provided consumers with a private cause of
action for willful or negligent violations by
furnishers of information); Dornhecker v.
Ameritech Corp., 99 F. Supp. 2d 918 (N.D. Ill.
2000) (holding that consumer has private
right of action); Campbell v. Baldwin, 90 F.
Supp. 2d 754 (E.D. Tex. 2000) (holding that
consumer has private right of action). See also
15 U.S.C. §§1681n and 1681o.
14. Carney v. Experian Information Solutions
Inc., 57 F. Supp. 2d 496 (W.D. Tenn. 1999).
15. Stafford v. Cross Country Bank, 262 F.
Supp. 2d 776, 783 (D. Ky. 2003); Ayers v.
Equifax Info. Servs., 2003 U.S. Dist. LEXIS
23271 (D. Va. 2003) (noting that Carney’s
holding is “contrary to virtually all holdings by
courts that have considered this issue”);
Vazquez-Garcia, 222 F. Supp. 2d at 156;
McMillan v. Experian Info. Servs., 119 F. Supp.
2d 84, 86 (D. Conn. 2000); Dimezza v. First
USA Bank Inc., 103 F. Supp. 2d 1296, 1301
(D.N.M. 2000) (calling the Carney court’s
conclusion “baffling”); Gordon v. Greenpoint
Credit, 266 F. Supp. 2d 1007 (D. Iowa 2003);
Johnson v. United States-DOD, 2000 U.S. Dist.
LEXIS 21087 (D. Minn. 2000) (noting that
the Carney decision “stands, apparently alone,
against a significant number of decisions
finding that both the plain language of the
FCRA and its legislative history compel the
opposite conclusion”).
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Differences that matter.
19
A R T I C L E
Hillbilly Homicides
The ‘Stringbean’ Murder Trial
By Donald F. Paine
f we had been listening to WSM
between 10:15 and 10:30 p.m.
on Saturday, Nov. 10, 1973, we
would have heard David “Stringbean” Akeman’s final performance on the Grand Ole Opry. Before
midnight he and wife Estelle were
dead — murdered upon return to their
farmhouse in northwest Davidson
County, Tenn.
Motive? Stringbean was reared in
Depression Kentucky and didn’t
believe in banks. Word got around
that he had some $20,000 cash at
home from “Hee Haw” earnings.
Here’s what happened. Cousins
John and Doug Brown drove to the
small Akeman dwelling while the
owners were at the Opry. They didn’t
realize that they had triggered Stringbean’s “burglar system,” a length of
fishing line he had stretched across the
driveway. They ransacked the house
looking for the rumored cash. Finding
none, they lay in wait.
At around 11:30 p.m., Stringbean
and Estelle returned and noticed the
broken fishing line. Stringbean put
down his banjo case on the porch,
drew a pistol and entered the darkened
house. He fired toward a human form
(Doug Brown), a struggle ensued, and
John Brown killed him with a single
fatal shot. Then John chased the
screaming Estelle across the yard,
felled her with one shot, and then
I
20
pumped two more into her as she
begged for life. The killer was later
quoted: “I didn’t mind shooting
Stringbean, but I kinda hated shooting
his wife.” Please …
Grandpa Jones, Stringbean’s best
friend and neighbor, discovered the
bodies early the next morning. Suspicion quickly focused on the Brown
boys, largely because Doug ran his
mouth to a coworker at American
Marine. After they were jailed and
Stringbean and Estelle Akeman,
taken in Kansas City, Kan. 1962.
PHOTO COURTESY OF COUNTRY MUSIC HALL
FAME® AND MUSEUM
OF
charged with murder, each gave selfserving confessions that blamed the
other cousin. These statements were
published in the newspaper.
The trial of State v. Brown opened
on Oct. 28, 1974. Judge Allen Cornelius presided, General Tom Shriver
prosecuted, Arnold Peebles defended
John Brown, and Joe Binkley Sr.
defended Doug Brown. For constitutional reasons the death penalty was
not available as punishment.1
On Nov. 2 the jury returned double guilty verdicts against each defendant. The court ordered the 99-year
sentences to run consecutively. Doug
died at Brushy Mountain in 2003;
John remains imprisoned at Nashville.
Where was the $20,000 cache of
cash? Lt. Tommy Jacobs, one of the
lead investigators,2 told me that in late
1996 he was alerted by the thenoccupant of the farmhouse to drive out
for a look-see at “confetti” falling from
the chimney in the fireplace. During
two decades mice had used the hidden
treasure trove as building material!
One final fact I owe to Steve Gibson of the Wilson County Bar, whose
father Curt Gibson was Stringbean’s
guitar player at the Opry. After the
final show that fatal Saturday evening,
Stringbean and Mr. Gibson went backstage alone to sing the old hymn,
“I didn’t mind
shooting
Stringbean, but
I kinda hated
shooting
his wife.”
ABOVE: Murderer John
Brown on “perp” walk with
Detective Tommy Jacobs, left,
and Sherman Nickens, right.
PHOTO
COURTESY
THE TENNESSEAN.
RIGHT: Farmhouse where the
Akemans were murdered.
PHOTO
BY
DON PAINE
Stringbean Akeman performs at the Grand Ole Opry on
the stage of the Ryman Auditorium, Nov. 2, 1973. He
and his wife were murdered after his Opry performance
just eight days later.
PHOTO
COURTESY OF
COUNTRY MUSIC HALL OF FAME® AND MUSEUM
21
W H E R E
T H E R E ‘ S
A
W I L L
Free Money:
How insurance + annuity = big profit
By Dan W. Holbrook
n recent years, insurance advisors
have figured out a marvelous way
for certain clients to get money out
of the insurance industry, completely
above board and legal. As attorneys,
we may be asked whether it really
works. The answer so far is yes, and it’s
been done many times successfully. In
fact, it seems to require a rephrasing of
tax attorneys’ usual refrain: “If it’s too
good to be true, it ain’t … unless, of
course, it is.”
Consider a client between ages 75
and 90, with above average health and
wealth, who will never need any more
life insurance. That client might well
have a valuable unutilized asset, namely, his insurability. Here’s how to convert that asset into cold cash.
I
STEP 1: Your client agrees to submit to an insurance medical examination. Because his health is generally
good for his age, he is likely to qualify
for standard rates. Because his wealth
is significant, he can qualify for a lot of
life insurance. [Insurance companies
limit the amount of insurance they
will underwrite on any one person,
typically around 11/2 times net worth.]
STEP 2: Your client’s insurance
agent shops around for the best deal on
life insurance. The life insurance contract will generally be guaranteed, that
is, a fixed annual premium for the
insured’s entire life, with a guaranteed
death benefit no matter how long he
lives. The insurance company should
be top-rated.
STEP 3: The agent then takes the
same medical exam information and
shops around for the best deal on a life
annuity contract. A single premium
insured annuity (often referred to as a
SPIA) is a contract issued by an insurance company, in exchange for one
lump sum, to pay a guaranteed annual
annuity for the life of a person, no
matter how long that person lives.
Again, the company should be toprated. This is where the fun begins.
Companies issuing annuities look
at the underwriting data differently
than do companies issuing life insurance policies. Almost anyone over age
75 has had some medical history that
may shorten his life expectancy, justifying a larger annuity payment. This is
typically referred to as an “age-rated
SPIA.” In other words, while a life
Dan W. Holbrook practices estate law with Holbrook & Peterson PLLC, in
Knoxville. He is certified as an Estate Planning Specialist by the Tennessee
Commission on Continuing Legal Education and Specialization, is a Fellow of
the American College of Trust and Estate Counsel, and serves on the TBA Probate Study Group reviewing and recommending legislation involving trusts
and estates in Tennessee. He can be reached at [email protected].
22
insurance company competes in a market that values living beyond life
expectancy, the annuity company
competes in a market that values dying
sooner. Both companies review the
same data, but they calculate their
expected profits on different products
in different markets. The difference
creates a financial spread and therefore
an opportunity. [Current rule-ofthumb is that for every three clients
who submit to this medical underwriting, only one will obtain a “spread” on
the numbers sufficient to create
enough profit to justify closing on this
transaction. For the other two, the
numbers just don’t work well enough.]
Example 1: Based on her medical
information, Doris, age 75, can qualify
for $10 million of life insurance, for an
annual premium of $600,000 per year,
first payment due immediately. She
can also qualify for an annuity contract that pays $1,200,000 per year for
a lump sum payment of $8 million,
first payment to begin a year from now.
STEP 4: Your client goes to a bank
and borrows to finance the deal. Your
client may be wealthy, but he is not
interested in contributing cash to
make this happen. A bank loan,
secured by the life insurance policy
and the annuity contract, closes the
deal without any money invested by
your client.
Example 2: Doris finds that her
local bank is happy to loan her $9 million, at 4 percent annual interest
W H E R E
payable during her life, with principal
due only at her death. She closes on
the bank loan, the insurance policy,
and the annuity contract all on the
same day. She uses $600,000 of the
loan to pay the first year’s insurance
premium and $8 million to buy a
SPIA that will pay $1,200,000 per
year starting a year later. She can
pocket the remaining $400,000
immediately, free of income tax. This
also covers any “transaction costs” in
setting up the whole deal.
STEP 5: As the years go by, the
annual annuity payment will be sufficient to pay both the annual insurance premium and the interest on the
note. During the years of the client’s
life expectancy, some of the annual
annuity payment will be taxable
income, but most will be tax-free
return of principal. After the end of
the life expectancy, all of the annuity
income every year will be ordinary
income. This is the one place where
the client is exposed to potential liability. Usually at least some of the
prior positive cash flow should be
invested as a reserve to cover this contingency. A modest return on the reinvested cash flow should more than
cover any late-year potential negative
cash flow through the maximum
insurance age of 110.
Example 3: At the end of each year,
Doris receives an annuity payment of
$1,200,000. She writes a check to the
life insurance company for $600,000
to pay the annual premium and a
check to the bank for $360,000 to pay
the 4 percent annual interest on the
$9 million loan. That leaves her with
pre-tax cash flow of $240,000.
Doris’s life expectancy is 12 years,
so 1/12 of $8 million, or $667,000 per
year, is tax-free to her as a return of
basis, and the rest of the annuity,
$533,000, is taxable income. After
T H E R E ‘ S
A
paying incremental income taxes of
about $178,000, she will have an
after-tax net annual cash flow of about
$62,000 for the first 12 years. The
total positive cash flow for the first 12
years, including the first $400,000 at
the closing, and disregarding any
earnings from re-investing, will be
about $1,144,000.
Beginning in the 13th year, or
starting at Doris’s age 88, the annuity
payment of $1,200,000 will be
entirely ordinary income, on which
the income taxes may be about
“Free money indeed.
The client has not
invested a cent, yet
can reap a huge
benefit regardless of
whether he
dies sooner or later.”
$400,000. So beginning at age 88,
Doris’s annual after-tax cash flow
may be negative $160,000. Whether
or not this would be a problem for
Doris depends on whether or not she
has invested her prior positive cash
flow as a reserve for this purpose or
else has other liquid assets.
STEP 6: Upon the client’s death,
the life insurance death benefit will
pay off the loan and any accrued interest. The death benefit will exceed the
payoff, creating a windfall for the
client’s testamentary beneficiaries.
Example 4: Doris dies in mid-year.
W I L L
The life insurance company pays her
estate $10 million. Her executor pays
off the bank debt of $9 million, along
with $180,000 of accrued interest.
The difference of $820,000 passes to
the beneficiaries under her will.
Summary of net benefits to Doris
or her estate:
$400,000 upon closing the deal.
After-tax positive cash flow of
about $62,000 per year for 12 years,
totaling $744,000.
After-tax negative cash flow of
about $160,000 per year thereafter.
$820,000 upon her death.
Free money indeed. The client has
not invested a cent, yet can reap a
huge benefit regardless of whether he
dies sooner or later.
Arbitrage
This technique is known as “arbitrage,” a term often carrying a negative connotation. Arbitrage is merely
profiting from a spread, which for
example is exactly how banks make
all their money. The insurance industry is all about allocation and assumption of risk. So long as the insurance
arbitrage is legal and fully disclosed to
all participating parties, the fact that
two different insurance companies are
willing to enter into two separate contracts that create profit for the client
is their risk, not the client’s.
Note that the arbitrage comes in
three phases: first, a possible immediate profit upon closing; second, a possible positive after-tax cash flow during the client’s life; and third, a death
benefit. Any specific transaction may
be designed to include all three, or
only one or two in any combination.
This depends on the client’s goals and
can be determined after the underwriting by selecting the relative
amounts of insurance, SPIA, and
23
A R T I C L E
Promissory Estoppel
The enforcement of gratuitous promises
to prevent injustice
By Steven W. Feldman
party seeking to prove
the existence of a contract must show the
agreement was supported
by adequate consideration, and that the parties have a mutuality of obligation. “Consideration” in this
sense means either a benefit to the maker
of the promise or a detriment to, or obligation upon, the promise. Calabro v. Calabro, 15 S.W.3d 873, 876 (Tenn. Ct.
App. 1999); Dobbs v. Guenther, 846
S.W.2d 270, 276 (Tenn. Ct. App. 1992).
Suppose, however, that A makes a gratuitous representation or other promise to
B, and there is no express contract.
Thereafter B relies upon that representation or promise by taking some substantial action or making some significant
forbearance, but A refuses to make good
on the commitment. For example, in
Engenius Entertainment Inc. v. Herenton ,
971 S.W.2d 12 (Tenn. Ct. App. 1997),
the plaintiff, a real estate developer,
alleged that the defendant, a city agency,
had induced the plaintiff to incur more
than $1 million in costs for developing a
feasibility study and related efforts at the
city’s request when city officials represented that they would soon be entering
into a long-term property development
agreement with the plaintiff, but the city
reneged on the promise. Does the lack of
consideration in this situation flowing
from the real estate developer/promisee
A
24
to the city/promisor necessarily deprive
the promisee of a remedy?
The answer in Tennessee is that such
a gratuitous promise can be binding in
the interests of justice, through the theory of promissory estoppel. Alden v.
Presley, 637 S.W.2d 862, 864 (Tenn.
1982). Accordingly, the Engenius court
reversed and remanded the trial court’s
determination that the plaintiff had
failed to state a claim upon which relief
could be granted.
Promissory estoppel explained
“Promissory estoppel” — also known
as “detrimental reliance” — is defined as
a promise that the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a
third person and that does induce such
action or forbearance. The promise will
be binding if injustice can be avoided
only by its enforcement. The remedy
granted for the breach may be limited as
justice requires. Calabro, 15 S.W.3d at
878. The doctrine takes its name because
a promisor that induces a promisee in
these circumstances to change its position substantially is “estopped” — precluded — from denying the binding
nature of the promise because of the
absence of consideration from the
promisee. Id. In applying this remedy,
several Tennessee decisions have adopt-
ed the influential definition of promissory
estoppel in the Restatement (Second) of
Contracts, Section 90. E.g., Amacher v.
Brown-Forman Corporation, 826 SW.2d
480, 482 (Tenn. Ct. App. 1991).
Promissory estoppel is a substitute for
consideration, or a sufficient reason for
enforcement of the promise without consideration. Smith v. Harriman Utility Board,
26 S.W.3d 879, 886 (Tenn. Ct. App.
2000). The traditional elements of a claim
for promissory estoppel are: (a) a promise,
clear and unambiguous in its terms; (b) the
claimant’s reliance on the promise; (c) the
reliance was reasonable and foreseeable;
and (d) injury stemming from the reliance.
Anderson, Inc. v. Consol, Inc., 348 F.3d
496, 503 (6th Cir. 2003). Tennessee decisions follow a similar standard: (a) the
detriment suffered in reliance must be substantial in an economic sense; (b) the substantial loss to the promisee in acting in
reliance must have been foreseeable by the
promisor; and (c) the promisee must have
acted reasonably in justifiable reliance on
the promise as made. Calabro, 15 S.W.3d
at 879.
The promise:
the key element
The doctrine’s key element is the promise or representation, because a court must
know what induced the plaintiff’s action
or forbearance and whether justice
requires a remedy. Amacher, 826 S.W.2d at
482. As the Restatement (Second) of Contracts, Section 2(1), explains, a “promise”
manifests an intention to act or to refrain
from acting in a specified way, so made as
to justify a promisee in understanding that
a commitment has been made. A “representation” is a presentation of fact made to
induce someone to act. Shoshone Indian
Tribe of Wind River v. United States, 58 Fed.
Cl. 542, 546 (2003). Promissory estoppel
can apply to all varieties of representations
or promises, including sales transactions
governed by the Uniform Commercial
Code. Amacher, 826 S.W.2d at 482.
The Tennessee Court of Appeals has
commented that American jurisdictions
have not employed a uniform approach in
deciding when a defendant’s words or
actions will justify the defendant’s reliance
for promissory estoppel. Some courts hold
that the promise must be definite and
unequivocal. Other decisions state that
the court may infer the promise from the
general statements of the promisee. Id.
The Tennessee Court of Appeals has
strongly indicated that the second view is
more persuasive, based on the second
approach’s closer adherence to the Restatement (Second) of Contracts’ definition of a
“promise,” referenced above. Id. In this
regard, the “inference” standard better
tracks the Restatement (Second) formulation, because a “promise” under the
Restatement (Second) may be inferred from
a person’s manifestation of an intention
that will justify a promisee in understanding that a promisor has made a commitment. Id. Furthermore, the “inference”
standard is preferable because a promise is
not an offer; the traditional theory of
promissory estoppel differentiates between
a promise, an offer, and a bargain. Neuhoff
v. Marvin Lumber and Cedar Co., 370 F.3d
197, 203 (1st Cir. 2004). On the other
hand, a person’s mere statement of an
opinion or a future intent is not a “promise,” and so courts will reject promissory
estoppel with only such proof. See Richard
A. Lord, Williston on Contracts, § 8:5 (4th
ed. 1991). In any event, these questions
are fact intensive and will usually raise
genuine issues of material fact, Shah v.
Racetrac Petroleum Co., 338 F.3d 557, 57071 (6th Cir. 2003); Calabro, 15 S.W.3d at
879, which should preclude summary judgment on promissory estoppel claims in
most instances. See Shah, 338 F.3d at 57071; Operations Management International,
Inc. v. Tengasco, Inc., 35 F. Supp. 2d 1052,
1057 (E.D. Tenn. 1999).
Regardless of how a court decides
whether a party has made a promise, the
This article gives
examples of where the
courts have accepted or
rejected promissory
estoppel and
summarizes the key principles in
Tennessee so that
practitioners may
better represent their
clients in these cases.
25
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Hillbilly Homicides
“Lord, I’m Coming Home”:
I’ve wandered far away from God
Now I’m coming home.
The paths of sin too long I’ve trod.
Lord, I’m coming home.
Coming home, coming home
Never more to roam.
Open wide thine arms of love.
Lord, I’m coming home.
Thirty minutes later, Stringbean
and Estelle Akeman came home. May
their souls rest in peace.
Notes
1. See the appendix in Miller v. State,
584 S.W.2d 758 at 762 (Tenn. 1979).
2. Lt. Jacobs is now retired from the Metro
force. He is a tenacious detective who always
gets his man. You can hire him through his
private company in Nashville, The Jacobs
Group, by calling (615) 367-3659.
Donald F. Paine is a past president of the
Tennessee Bar Association and is of
counsel to the Knoxville firm of Paine,
Tarwater, Bickers, and Tillman LLP. He
lectures for the Tennessee Law Institute,
BAR/BRI Bar Review, Tennessee Judicial
Conference, and University of Tennessee
College of Law. He is reporter to the
Supreme Court Advisory Commission on
Rules of Practice and Procedure.
Promissory estoppel
resulting commitment cannot be unenforceably vague or ambiguous. The Tennessee Court of Appeals followed this
view in Amacher v. Brown-Forman Corporation. In Amacher, the Jack Daniels
Distillery promised some Moore County,
Tennessee, cattle farmers that if they
took substantial action and made such
expenditures as were necessary for
approved cattle feeding sites as Jack
Daniels directed, then the farmers would
have a continuing supply of stillage for
their cattle. The Amacher court found
the promise unenforceable based on
vagueness; the promise was missing
essential details on quantities of stillage,
duration of the arrangement, and the
price. Accordingly, the Tennessee Court
of Appeals found no injustice in refusing
to enforce the promise. Amacher, 826
S.W.2d at 482.
Conclusion
Promissory estoppel is a valuable
remedy for compensating a plaintiff who
reasonably relies to his detriment on the
gratuitous promise or representation of
another party, and where justice requires
compensation for the breach. This article has given examples of where the
courts have accepted or rejected promissory estoppel. It also has summarized the
key principles in Tennessee so that practitioners may better represent their
clients in these cases.
SERVICES TO HELP YOUR PRACTICE
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provides members practical
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To find out more or sign up for a benefit, visit
TBALink at www.tba.org/tbinfo/main. Or contact
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at (800) 899-6993 or [email protected]
26
Steven W. Feldman is an attorney-advisor for the
U.S. Army Engineering and Support Center in
Huntsville, Ala. He received his bachelor’s degree
from SUNY at Stony Book, his law degree from
Vanderbilt University. He is the author of Government Contract Awards: Negotiation and Sealed
Bidding (Thomson/West 1994 & Supp. 2003). The
opinions expressed in this article are solely the
Feldman
personal views of the author and do not express
the positions of the Department of the Army or of the U.S. Army Corps
of Engineers.
W H E R E
T H E R E ‘ S
A
W I L L
bank loan. The initial loan proceeds can
also be used to make a larger initial payment to the insurance policy to reduce
the subsequent premiums and therefore
invest less in a SPIA. Or the lifetime cash
flow can be used to purchase additional
life insurance death benefit. Obviously, a
range of models should be prepared, and
the client should be advised on how to
structure the deal to best meet his objectives.
Do these huge “spreads” in underwriting really exist? Yes, and billions of dollars
of insurance are already in force based on
this arbritrage.
Does the client assume risks? Some.
The worst risk would be if either insurance company became insolvent and
defaulted in its obligation. This is highly
unlikely given the relatively short duration of the program, that is, the client’s
remaining life, especially if excellent
insurance companies are selected at the
start. Moreover, the client’s risk of a
default on the life insurance death benefit can be minimized if the bank will
accept the life insurance policy and annuity contract as their only collateral, without any personal guarantee by the client.
For example, an irrevocable trust could
be the non-recourse borrower as well as
the owner of both the life insurance policy and the annuity contract, so that the
client’s risk is essentially zero.
Can the client avoid estate tax on the
death benefit arbitrage? Yes. If the beneficiary is charity, there is no estate tax
owed because of the charitable deduction. If the beneficiary is a family member, then the life insurance may be
excluded from estate taxation by using a
life insurance trust. Can the client deduct
the interest on the note? Normally, no.
However, there are some creative possibilities to consider, such as structuring
the note as a mortgage on the client’s primary or secondary home.
Does the insurance agent make
money? Yes, significant commissions on
both the insurance and the annuity. No
wonder insurance agents and brokerage
houses have become quite sophisticated
in packaging this program over the last
several years.1
Bottom line: insurance/annuity arbitrage is a viable technique for certain
older clients to convert their excess insurability into additional wealth for themselves, their families, or charity, but only
if the underwriting numbers work in each
particular case, the clients are fully
informed, and the risks are managed.
Notes
1. Some recent innovations involve committing all of the death benefit arbitrage to
charity. Under almost all state laws, including
Tenn. Code Ann. Section 56-7-314, charities
have an insurable interest in their donors and
can therefore own the insurance and annuity.
However, if a charity finances the deal by borrowing from a bank, it can create “unrelated
business taxable income” (UBTI) to the charity under Internal Revenue Code Section 511.
Recent approaches attempt to eliminate the
charity’s tax exposure, and perhaps also to
reduce the other risks to the client and to
charity, by including trusts, partnerships, or
other legal entities, usually in consideration
for some or all of the lifetime cash flow. There
has been some national debate over whether
such innovations are desirable as a matter of
public policy. However, in 2004 the Tennessee
legislature amended Tenn. Code Ann. Section
56-7-314 virtually unanimously to enable
such arrangements to include both charitable
and non-charitable entities, following similar
statutory changes in Texas, North Carolina,
Nebraska and Virginia, with other states likely to follow. The Tennessee statute seems a bit
overbroad compared to those other states, but
if the marketed programs generate no more
than a reasonable return to third-party lenders
or third-party investors while delivering a fair
and reasonable share to charity, there is ample
reason to believe both state and federal laws
will continue to encourage their popularity.
sleep and awakened into my daughter’s
Beauty and the Beast book.
To enter the Grand Ball, it was necessary to present the guards at the gate
(with machine guns slung over their
shoulders at a time before we in this
country were accustomed to such sights)
with an invitation and identification. To
my surprise, we were passed through the
gates and herded towards large white
tents set up on the lawn. Having been to
a couple of pretty fancy parties in East
Tennessee, I assumed that they were having the party in these big tents. Instead,
this was the coat check location. Having
shed our coats, we were directed into the
Palais where we joined a line of folks
headed down a long flight of stairs. As we
waited in line, we learned from our neighbors in line that the area in which the
ball was to be held was the same area
where Marie Antoinette was held prior to
her execution. This was a place with
some pretty serious history to go with it!
At the bottom of the steps, the guests
would tender to a gentleman in tuxedo
and chain sash their invitation and be
announced to the crowd. Now, I have to
admit that, for a boy born next to a coal
mine in West Virginia and raised next to
a cattle barn in North Carolina, this was
pretty heady stuff. You might forgive me
if, for just a moment, I began to think
that I had arrived and that I really was
somebody. As my head swelled and my
bride smiled, we handed our invitation to
the gentleman, who turned and shouted
to the assemblage “Monsieur and
Madame Pam Reeves!” Yes, I was somebody all right. I was the guy who was
“Drivin’ Ms. Pammy.”
27
to all parties in the action.
The board filed a petition for
discipline pursuant to Rule 9,
and he filed an answer and
amended answer where he
admitted all allegations
against him and agreed to a
two-year suspension. He must
notify all clients being represented in pending matters, all
co-counsel and all opposing
counsel of the suspension. He
also must deliver to clients
any papers or property to
which they are entitled. In
October 2006 McAlexander
may petition for reinstatement of his license but must
prove by clear and convincing
evidence that such action
would not be detrimental to
the integrity and standing of
the bar and the administration of justice or be subversive
to the public interest.
•••
On Oct. 26, the Tennessee
Supreme Court suspended
Scott Eric Crawford from the
practice of law for nine
months retroactive to March
19, 2004, the date of his temporary suspension in an unrelated matter. Between 2001
and 2002 Crawford engaged
in a pattern of deceptive conduct in two legal matters. In
the first matter, Crawford
improperly instructed his secretary to sign the opposing
party’s name to a final decree
of divorce without the opposing party’s consent. This
action led to the wrongful
assessment of court costs
against this pro se opposing
party. In the second matter,
Crawford improperly assisted
a non-licensed attorney
engage in the unauthorized
practice of law in the Shelby
County General Sessions
Court. The Board of Professional Conduct filed a peti-
28
tion for discipline in November 2002 and appointed a
hearing panel to decide the
matter. After extensive discovery and several pre-hearing motions, Crawford agreed
to the nine-month suspension. He must notify all
clients being represented in
pending matters, all co-counsel and all opposing counsel of
the suspension. He also must
deliver to clients any papers
or property to which they are
entitled. If the original temporary suspension is dissolved
or modified, Crawford need
not initiate reinstatement
proceedings after the completion of the nine-month period. However, if the initial suspension is not amended,
Crawford will be eligible to
petition the court for reinstatement on Dec. 19, 2004.
•••
Also on Oct. 26, the
Supreme Court of Tennessee
suspended Christopher Robin
Fox for a six-month period to
run consecutively with the
suspension resulting from his
Feb. 6, 2004, disbarment. Fox
filed no answer to the Board
of Professional Responsibility’s petition for discipline, did
not attend the discipline
hearing and did not appeal
the panel’s recommendation.
Rule 9, section 18 of the Tennessee Supreme Court Rules
requires that Fox notify all
clients being represented in
pending matters, all co-counsel and all opposing counsel of
the suspension. He also must
deliver to clients any papers
or property to which they are
entitled. After the passage of
his suspension, Fox may petition for reinstatement of his
license but must prove by
clear and convincing evidence that such action would
not be detrimental to the
integrity and standing of the
bar and the administration of
justice or be subversive to the
public interest.
•••
On Oct. 26, Douglas P.
Nanney of Centerville was
temporarily suspended from
the practice of law by the
Tennessee Supreme Court
pending a final recommendation for disciplinary action
from the Board of Professional Responsibility. The court’s
order follows Nanney’s guilty
plea and conviction of a
Class E felony for possession
of drug paraphernalia. The
Board of Professional Responsibility now must institute
formal proceedings to determine the sole issue of final
discipline. Nanney must notify all clients being represented in pending matters, all cocounsel and all opposing
counsel of his suspension. He
also must deliver to clients
any papers or property to
which they are entitled.
Censured
Tipton County attorney
Richard D. Cartwright
received a public censure from
the Board of Professional
Responsibility on Oct. 14 for
neglecting several clients’
legal matters and failing to
communicate adequately with
them. The board issued the
censure in response to two
complaints and found
Cartwright in violation of
Rules 1.1, 1.3, 1.4 and 8.4 of
the Tennessee Rules of Professional Conduct. Cartwright
did not request a hearing in
the matter. The censure
declares his actions to be
improper ethical conduct but
does not limit his right to
practice law.
•••
On Oct. 18, the Board of
Professional Responsibility
publicly censured Columbia
attorney William C. Barnes
Jr. for neglecting a client’s
legal matter and failing to
adequately communicate with
his client. In May 2003 the
client’s case was dismissed for
failure to prosecute, but
Barnes failed to advise his
client of the dismissal. His
failure to notify his client violated Rules 1.3, 1.4 and 8.4(d)
of the Tennessee Rules of Professional Conduct. The censure declares Barnes’s actions
to be improper ethical conduct but does not limit his
right to practice law.
•••
Also on Oct. 18, the
Board of Professional Responsibility publicly censured
Knoxville attorney John A.
Willis for multiple counts of
improper ethical conduct. In
his representation of a client,
Willis failed to prepare for
trial, failed to seek relief from
the trial date, failed to file
responses to adverse motions
for summary judgment and
failed to advise his client that
one motion for summary
judgment had been overruled.
Willis also entered into preliminary mediation discussions on behalf of his client
without advising the client of
his activities. He attended a
formal mediation session
without authority from his
client although he intimated
that he did have authority to
do so. He made an offer to
settle two claims against his
client and a third unsuccessful offer on behalf of a second
client without authority. In
addition, Willis requested
that the case be removed
B U T
S E Rvisible
I ObyUtheS bench.
L Y ,NowF
clearly
O L oh-ki-yah!”
K S ! like Howard Dean.
Hang in there.
Now you folks got to get along now, ya heah?
Don’t mess with Texas justice
By Bill Haltom
irst there was Judge Wapner presiding over “The People’s Court.”
Then came Judge Judy, and then
Judge Joe Brown, and ultimately
Judge Mills Lane, who actually refereed the fight when Mike Tyson bit off
a piece of Evander Holyfield’s ear.
Then came Judge Lance Ito and O.J.,
and why before you knew it, there
were more judges on TV than you
could shake a gavel at. And now,
make way for America’s newest TV
judge, Judge Larry Joe Doherty, star of
“Texas Justice”!
“Texas Justice” is the latest daytime
court TV program. It’s sort of a cross
between “The People’s Court” and
“Gunsmoke.”
The stars of “Texas Justice” are
Judge Larry Joe and his affable sheriff/bailiff, William. He’s sort of a cowboy version of Doug Llewellyn. Sheriff William looks like he could rope,
hawg-tie and brand you if you got out
of hand.
On the show, Judge Larry Joe dispenses cowboy justice in a Texas
courtroom. How do we know it’s a
Texas courtroom? Well, for starters,
there’s a cactus in the courtroom,
F
that’s something I’ve never seen in a
Tennessee courtroom.
“… and why before
you knew it, there were
more judges on TV
than you could
shake a gavel at.”
And then there’s the wardrobe.
Judge Larry Joe appears in his courtroom each day dressed like a cowboy
judge. He wears black robes, but
they’re trimmed with the same sort of
western piping that Roy Rogers and
Gene Autry used to have on their
cowboy shirts. And while Judge Larry
Joe doesn’t wear a cowboy hat or a
holster (at least on the air), he looks
like he could saddle up and lead a cattle drive, while screaming, “Yippee-ya-
Bill Haltom is a podnah with the Memphis firm of Thomason, Hendrix, Harvey,
Johnson & Mitchell. He is president-elect of the Tennessee Bar Association and
is a past president of the Memphis Bar Association.
I don’t know if Judge Larry Joe
can yodel like Gene Autry (“I’m
back in the courtroom again”). But
he definitely looks like a Cartwright
who went to law school — the Honorable Hoss.
The format for “Texas Justice” is
the tried-and-true court TV format
originally developed by “The People’s
Court.” But there’s a nice southern
twang in Judge Larry Joe’s voice as he
dispenses justice, and Sheriff William
may be the nicest bailiff ever to
appear in a courtroom. Each episode
of “Texas Justice” ends with Sheriff
William bringing the litigants together for a hearty Texas handshake.
(“Now you folks got to get along now,
ya heah?”)
But while “Texas Justice” borrows
liberally from “The People’s Court,”
the show has some decidedly Texas
twists. For example, “Texas Justice”
features interviews not only with the
litigants, but with members of the
audience. There’s a regular Texas
peanut gallery sitting in Judge Larry
Joe’s courtroom, and these folks are
as opinionated and rowdy as the people you see on the “Jerry Springer
Show.” They are not hesitant to
express their opinions about the litigants and Judge Larry Joe’s rulings,
although they tend to be highly
29
B U T
S E R I O U S L Y,
Actions from the BPR
F O L K S !
respectful of Judge Larry Joe and supportive of his decisions. Wouldn’t want
old Judge Larry Joe to hold you in contempt now, would ya, podnah?
Moreover, when Judge Larry Joe
issues a ruling, he often gets a standing
ovation from the peanut gallery. Again,
that’s something I’ve never seen in a
Tennessee courtroom. But all the little
cowboys and cowgirls in the “Texas Justice” peanut gallery just love to hear
Judge Larry Joe rule for the plaintiff or
the defendant and then bang his Texassized gavel before breaking for a commercial, brought to you by the Law
Offices of J. Cheever Loophole, who is
not licensed in Tennessee and has never
been certified by anybody, anywhere, in
any area, but is ready to get you the
money you deserve!
And now, back to Judge Larry Joe,
who is turning out to be the most popular cowboy judge since Roy Bean. They
didn’t have TV back when Judge Bean
was on the bench. Too bad. He would
have piled up big Nielsen rating numbers as he promised the defendants to
give ’em a fair trial and then hang ’em,
as the peanut gallery cheered!
Well, I think Judge Larry Joe and
“Texas Justice” are on the cutting edge
of court TV these days. Why before you
know it there will be regional court TV
shows across America. Depending on
where you live, you will be able to tune
in to “Mississippi Justice,” starring Judge
Bobby Joe Earl or “Georgia Justice,” starring Judge Lester Jimmy Zell Barnes, as
he tries to resolve one dispute after
another over the Confederate flag.
If you live in Birmingham, you can
tune in to “Alabama Justice” and see
daily fights over the 10 Commandments. Judge Lurleen will rule, “I find
you guilty of adultery and sentence you
to death by stoning!”
And around these parts, you can
watch “Tennessee Justice,” as Judge
Buford Pusser breaks up legal fights
involving residents of trailer parks.
All of this makes me long for the
good ole days when the only judge on
TV was on the one trying to decide a
case between Perry Mason and Hamilton
Burger. And all he had to do was wait
for the real killer to jump up from the
peanut gallery and confess.
from the docket without the knowledge or permission of his client.
After the mediation Willis attempted to obtain settlement authority
from his client by informing the
client that the mediation had been
scheduled but had not yet occurred.
He also falsely advised his client that
a summary judgment motion was
pending and that the client likely
would lose. The client declined to
approve settlement authority except
for nominal offers. At this point,
Willis informed his firm of the situation. The firm removed Willis from
the case, advised the client of his
actions and agreed to pay the client
the full settlement amount. Willis
has agreed to reimburse the firm for
the payment. The board found that
these actions violated Rules 1.1, 1.2,
1.3, 1.4, 4.3 and 8.4(a)(c)(d) of the
Tennessee Rules of Professional Conduct. The censure declares Willis’s
actions to be improper ethical conduct but does not limit his right to
practice law.
Information regarding these disciplinary actions was
obtained from the Board of Professional Responsibility of
the Tennessee Supreme Court.
Feb. 13 -19, 2005
Save the date!
To celebrate the 20th year
of this popular program,
TennBarU’s CLE Ski returns
to Park City, Utah,
on Feb. 13 -19, 2005,
for a week of great programs
and great skiing.
Go to https://www.tba.org/onsiteinfo/
cleski2005.html for details.
TennBarU
CLE FOR TENNESSEE
30
C L A S S I F I E D
SERVICES
CERTIFIED FORENSIC
DOCUMENT EXAMINER
Tennessee’s only ABFDE certified private document examiner. Formerly
with U.S. Postal Inspection Service
Crime Laboratory. Certified by
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Questioned Document Examiners. Substantial civil, criminal and trial experience. Thomas Vastrick (PMB #147),
6600 Stage Road, Suite 107, Bartlett,
TN 38134; (901) 383-9282.
BUSINESS VALUATION/
ECONOMIC DAMAGE ANALYSIS/
FORENSIC ACCOUNTING
Business Valuation services for FLP’s
and other tax and business purposes;
Economic Damage Analysis for
wrongful death, employee discrimination, personal injury and commercial
damages; Forensic Accounting and
Expert Testimony services for fraud,
divorce and other commercial cases;
Litigation Support services for a
variety of cases involving unusual and
complex financial and accounting
issues. D. Michael Costello,
CPA•ABV, Costello
Forensic Accounting, P.C. 1100
Tallan Building, Two Union Square,
Chattanooga, TN 37402; (423) 7567100. [email protected]
TRAFFIC ACCIDENT
RECONSTRUCTION &
HIGHWAY EVALUATION
Former State Traffic Engineer. Licensed
as Professional Engineer in Tennessee,
with national accreditation in traffic
accident reconstruction. Traffic accidents, highway design and traffic control, including construction work zones.
Computer-assisted reconstruction analy-
A D V E R T I S I N G
sis and drawings. Richard Fitzgerald,
PE, 4545 Winfield Drive, Nashville,
TN 37211; (615) 331-1212.
FORENSIC
HANDWRITING EXPERT
www.HandwritingForensics.com
Qualified in all Courts.
Handwriting Identification,
Forgery, Anonymous Letters, Graffiti.
Diplomate / ABFE, NC Dept. of Justice
U.S. Secret Service QDC.
Theresa F. Dean, Handwriting Expert
Hendersonville, NC (828) 891-4263
PO Box 414, Horseshoe, NC 28742
[email protected]
IMMIGRATION PROBLEMS?
Call Barry L. Frager, former Trial
Attorney for the Immigration &
Naturalization Service (INS) of The
Frager Law Firm P.C. at 5100 Poplar
Ave., Clark Tower Suite 2204, Memphis, TN 38137-2207; (901) 7633188; toll-free (888) 889-VISA; 24Hour Answering Service (901) 3715333. Also in Nashville at 1040
Murfreesboro Pike, Suite 206; (615)
366-1000. The emphasis of his practice is in immigration legal matters
for clients in Tennessee, Arkansas
and Mississippi.
INTERPRETER
French - Spanish - English. Registered
Tennessee State Court Interpreter.
Consecutive interpretation (only occasional and limited simultaneous interpretation), limited sight reading, depositions, translations into English. Parttime. Knoxville and within 3-hour
drive. Substantial experience. Retired
from University of Tennessee. Phone:
(865) 560-1247.
POSITIONS AVAILABLE
NASHVILLE
Insurance Defense Attorney with
general liability experience needed
in Brentwood, Tenn., area office.
Salary and benefits commensurate
with experience. Send cover letter
with résumé and salary history to Box
240, Tennessee Bar Association, 221
Fourth Ave. N., Suite 400, Nashville,
TN 37219-2198.
JACKSON
Growing insurance defense law firm
seeks attorney for workers’ compensation and/or general liability claims.
Excellent salary package and benefits.
Great opportunity to join a rapidly
growing firm. Send résumé including
letter with salary requirements to Box
TN 37219-2198.
KNOXVILLE
Local insurance defense firm seeks
workers’ compensation and/or general
liability attorney. Great location in
West Knoxville. Salary commensurate
with experience. Please send cover letter, résumé and salary history to Box
TN 37219-2198.
GROWING EAST MEMPHIS LAW
FIRM seeks family law associate attorney with 3 years’ minimum family law
litigation experience. Competitive
compensation. Send résumé and salary
history in confidence to Miles Mason,
Crone & Mason, PLC, 5100 Poplar
Ave., Suite 3200, Memphis, TN
38137.
RATES
The classified advertising rate is $78 for up to 50 words and $1.50 per word thereafter. Payment for classified advertisements must
accompany advertising message. As a service to our members, there is no charge for advertisements up to 50 words
for full-time job openings. For information about classified or display advertising, write to Advertising Coordinator, Tennessee Bar Association, 221 Fourth Avenue North, Suite 400, Nashville, TN 37219-2198;
See classifieds online at http://www.tba.org
(800) 899-6993 (in Nashville, 383-7421); fax (615) 297-8058; email [email protected].
31
C L A S S I F I E D
A D V E R T I S I N G
SMALL MURFREESBORO LAW
FIRM seeks an experienced litigation
paralegal with three or more years of
experience. Candidate should have
experience with file management,
exhibit organization, document preparation, and client contact. A legal assistant/paralegal degree and/or a four-year
college degree in appropriate studies
preferred. Salary commensurate with
experience and training. Please send
cover letter and résumé to: Blankenship & Blankenship, 811 S. Church
Street, Murfreesboro, TN 37130.
LEGAL OPPORTUNITIES
MEDTRONIC SOFAMOR DANEK is
a leading developer, manufacturer and
marketer of products used in the treatment of spinal disorders and trauma.
We currently have openings for the
positions below.
Senior Patent Paralegal: This position
will manage, monitor and coordinate
all aspects of intellectual property practice with US Patent and Trademark
Office, Medtronic, Inc., and Outside
Counsel as it relates to patents under
the supervision of MSD Chief Patent
Counsel. (Job #39430)
Patent Administrative Assistant: Position will perform administrative duties
for the patent practice area attorneys.
(Job #39429)
Requirements: Associates degree
required and a minimum of ten years
in-depth patent experience with an
emphasis on patent applications/prosecutions and USPTO rules; or equivalent combination of education and
experience. Bachelors degree preferred.
Requirements: High school diploma
and one to two years patent experience
required or equivalent combination of
education and experience. Associates
degree or greater preferred. Proficiency
in Microsoft Office 2000 and other
software applications required.
Patent Paralegal: Position will manage,
monitor and coordinate all aspects of
intellectual property practice as it
relates to patents under the supervision
of an Intellectual Property lawyer. (Job
#39427)
For more details and/or to apply online,
visit the career opportunities section of
our web site at: www.medtronic.com .
EOE M/F/H/V
Requirements: Associates degree or
paralegal certificate and five years related law firm experience with an emphasis on patent applications/prosecutions
and USPTO rules; or equivalent combination of education and experience.
ETHICS
EXPERTS
The Tennessee Bar Association’s TennBarU CLE program
has the ethics programs you need when you need them.
• Nearly 30 ethics CLE hours offered in December
• Programming available at sites
across the state, online and by teleconference
• Courses taught by ethics experts, many who helped draft
the Tennessee Rules of Professional Conduct.
TennBarU
• www.tba.org/tennbaru
ASSOCIATE POSITION.
BRENTWOOD LAW FIRM
Federal and State civil litigation specializing in insurance fraud, arson, and
civil rights. 1-2 years’ experience.
Send résumés to: P.O. Box 24969,
Nashville, TN 37202-4969, or fax to
(615) 221-1581.
Get the
word out!
Reach nearly
9000
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Throw out that topic anywhere in Tennessee and you’ll get an ear full of answers.
In Nashville, there’s the famous Tootsie’s Orchid Lounge.
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Hillbilly Homicides: The `Stringbean` Murder Trial Promissory

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