New Law Reduces Tennessee’s Expungement Fee for Convictions from $450 to $280

By Daniel Horwitz:

A new law that reduces the total cost of expunging a conviction from $450 to $280 was officially signed by Governor Haslam on May 25, 2017.  The new law, sponsored by Representative Raumesh Akbari (D-Memphis) and Senator Mark Norris (R-Collierville), takes effect immediately.

Until yesterday, Tennessee had the third-highest expungement fee in the entire country.  Regrettably, even if a person is indigent, Tennessee also does not allow expungement fees to be waived—meaning that expungement still remains out of reach for many of the people who need it most.  However, reducing the total cost of expunging a conviction by nearly 40% will significantly improve access to expungement for those who are eligible to have their charges cleared.  As a result, this reform should be universally applauded.

In Tennessee, people whose charges were dismissed are eligible to have their records expunged for free.  However, only some convictions are eligible to be expunged.  If a person was convicted of a felony, then the person may be eligible for expungement if their charge appears on this list.  If a person was convicted of a misdemeanor, then the person may be eligible for expungement if their charge does not appear on this list.  Based on a new law enacted on May 5, 2017, some people with exactly two eligible convictions can now get both of their charges expunged as well.  Additional details on that new “double expungement” law are available here.

If you think you may be eligible to have your record expunged and want to hire an attorney to file your paperwork for you, please click here.

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Tennessee Supreme Court Holds that Divorce Contracts Must be Enforced as Written

By Daniel Horwitz:

In a common-sense opinion that clarified a muddled conflict among lower courts, the Tennessee Supreme Court has held that fee-shifting provisions in divorce agreements must be enforced as written.  Offering a forceful defense of the right to contract, Chief Justice Bivins’ unanimous opinion in Eberach v. Eberach instructs all lower courts that they do not have any discretion to deny attorney’s fees to a prevailing party if a contract agreed to by both parties makes such an award mandatory.

Eberach involved litigation between a former husband and wife following their divorce.  In 2011, the couple divorced and entered into a “marital dissolution agreement,” or “MDA.”  In lay terms, an MDA is a binding contract that sets out the terms of a divorce.  Among other things, the parties’ MDA provided that:

“In the event it becomes reasonably necessary for either party to institute legal proceedings to procure the enforcement of any provision of this Agreement, the prevailing party shall also be entitled to a judgment for reasonable expenses, including attorney’s fees, incurred in prosecuting the action.”

Three years later, the ex-couple found themselves embroiled in litigation over the wife’s plan to relocate to Ohio with their three children.  Ultimately, the trial court granted the wife permission to move to Ohio and awarded her $20,000.00 in attorney’s fees.  Thereafter, the trial court’s decision was affirmed by the Court of Appeals, which upheld both the relocation and the trial court’s fee award.  However, the Court of Appeals declined to award the wife additional compensation for the attorney’s fees that she had incurred on appeal.

Upon review, the Tennessee Supreme Court observed that various tribunals of the Court of Appeals had “been inconsistent in their analysis of claims for attorney’s fees in cases in which the claim is based on a contractual provision in a MDA.”  One line of cases held that appellate courts have discretion to deny attorney’s fees to a prevailing party “even in the face of a controlling contractual fee provision requiring such an award.”[1]  Another line of authority held that “when a MDA fee provision mandates an award of attorney’s fees to the prevailing party, the Court of Appeals does not have discretion to deny an award of appellate attorney’s fees.”[2]  Additionally, a third line of cases “observed that an award of appellate attorney fees in Tennessee is within the court’s sound discretion,” but then went on “to award attorney’s fees on appeal solely on the basis of the parties’ MDA fee provisions without further discussion.”[3]

Clarifying this conflicting precedent, the Tennessee Supreme Court instructed with unmistakable clarity that “parties are contractually entitled to recover their reasonable attorney’s fees when they have an agreement that provides the prevailing party in a [lawsuit] is entitled to such fees.”   “In such cases,” the Court explained, trial courts “do[] not have the discretion to set aside the parties’ agreement and supplant it with its own judgment.”  The Court further instructed that “[t]he same is and must be true of our appellate courts.”  Thus, “[a]bsent fraud, mistake, or some other defect, our courts are required to interpret contracts as written.”

As a general matter, litigants in the United States must pay their own attorney’s fees regardless of whether they win or lose.  Under this so-called “American Rule”—to which Tennessee adheres—“a party in a civil action may recover attorney’s fees only if: (1) a contractual or statutory provision creates a right to recover attorney’s fees; or (2) some other recognized exception to the American Rule applies, allowing for recovery of such fees in a particular case.”[4]  “Otherwise,” as the Eberach court observed, “litigants are responsible for their own attorney’s fees.”  Of note, the general presumption that parties must bear their own legal fees places the United States at odds with the legal regimes of many European nations, which generally adhere to a “loser pays” framework.

The most common exception to the American rule is a private agreement between parties which provides that in the event of litigation, the loser must pay the winner’s attorney’s fees.  Significantly, in Eberach, the husband and wife had executed such an agreement.  Thus, the only question presented in Eberach was whether the Court of Appeals was required to enforce it.

Emphatically answering this question in the affirmative, the Court’s opinion in Eberach furthers Tennessee’s longstanding commitment to protecting the right to contract.  In Tennessee, the right to contract has constitutional origins, and it is enforceable as a fundamental right.[5]  Tennessee statutory law also provides that: “All contracts, . . . in writing and signed by the party to be bound, . . .  shall be enforced as written.”[6]  In keeping with this tradition, the Eberach court explained that “one of the bedrocks of Tennessee law is that our courts are without power to make another and different contract from the one executed by the parties themselves.”  As such, the Court mandated that the terms of the husband’s and wife’s MDA be enforced.

Having resolved that the wife was entitled to attorney’s fees for her successful litigation in the Court of Appeals, the Court then remanded the case to the trial court to “determine the appropriate amount of Wife’s reasonable attorney’s fees on the appeal.”  Additionally, applying its just-announced holding to itself, the Tennessee Supreme Court also explained that the attorney’s fee award must cover the costs of the wife’s appeal “to this Court” as well.  Thus, going forward, litigants in Tennessee—and divorcees in particular—can have renewed faith that the terms of their contracts will, in fact, be enforced as written.

Read the Court’s unanimous opinion in Eberach v. Eberach here.

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[1] See Grisham v. Grisham, No. W2010- 00618-COA-R3-CV, 2011 WL 607377, at *11 (Tenn. Ct. App. Feb. 22, 2011) (holding that the trial court erred in failing to award wife her reasonable trial court attorney’s fees pursuant to MDA fee provision, but declining to award appellate attorney’s fees pursuant to the Court of Appeals’ discretion); Brown v. Brown, No. W2005-00811-COA-R3-CV, 2006 WL 784788, at *6 (Tenn. Ct. App. Mar. 29, 2006) (affirming the trial court’s award of trial court fees under the parties’ MDA, but equitably denying wife’s request for appellate fees pursuant to the Court of Appeals’ discretion); Elliott v. Elliott, 149 S.W.3d 77, 88 (Tenn. Ct. App. 2004) (affirming the trial court’s award of fees to wife pursuant to parties’ MDA fee provision, but denying wife’s request for appellate attorney’s fees); Dulin v. Dulin, No. W2001-02969-COA-R3-CV, 2003 WL 22071454, at *8, *10 (Tenn. Ct. App. Sept. 3, 2003) (affirming trial court’s award of attorney’s fees pursuant to MDA, but equitably declining to award either party attorney’s fees incurred on appeal).

[2] See, e.g., Beem v. Beem, No. W2009-00800-COA-R3-CV, 2010 WL 1687782, at *9-10 (Tenn. Ct. App. Apr. 28, 2010) (affirming trial court’s award of fees pursuant to MDA and holding that wife was entitled to attorney’s fees on appeal pursuant to the parties’ MDA); Treadway v. Treadway, No. M2014-00898-COA-R3-CV, 2015 WL 1396652, at *7 (Tenn. Ct. App. Mar. 24, 2015) (awarding appellate attorney’s fees pursuant to the parties’ MDA); Brinton v. Brinton, No. M2009-02215-COA-R3-CV, 2010 WL 2025473, at *6 (Tenn. Ct. App. May 19, 2010) (same); Corbin v. Corbin, No. W2008-00437-COAR3-CV, 2009 WL 454134, at *7 (Tenn. Ct. App. Feb. 24, 2009) (same); Waugh v. Waugh, No. M2006-021540COA-R3-CV, 2007 WL 2200278, at *4 (Tenn. Ct. App. July 30, 2007) (same); Hogan, 1999 WL 1097983, at *4-5 (reversing trial court’s denial of attorney’s fees, and awarding attorney’s fees to Mother for trial court and appellate level proceedings pursuant to the parties’ MDA).

[3] Wilkinson v. Wilkinson, No. W2012-00509-COA-R3-CV, 2013 WL 614708, at *10 (Tenn. Ct. App. Feb. 19, 2013); (citing Archer, 907 S.W.2d at 419) (emphasis supplied)). See also Hanna v. Hanna, No. W2014-02051- COA-R3-CV, 2015 WL 1951932, at *4 (Tenn. Ct. App. Apr. 30, 2015) (stating its discretion then awarding fees on appeal based on the parties’ MDA requiring that the “court shall award reasonable attorney’s fees to the party seeking to enforce [the MDA]”) (alterations in original); Williams v. Williams, No. M2013-01910-COA-R3-CV, 2015 WL 412985, at *14 (Tenn. Ct. App. Jan. 30, 2015) (affirming the trial court’s award of fees pursuant to the parties’ MDA, stating its discretion and determining that wife was entitled to attorney’s fees on appeal pursuant to the parties’ MDA); Dodd v. Dodd, No. M2011-02147-COA-R3-CV, 2012 WL 3193339, at *6 (Tenn. Ct. App. Aug. 6, 2012) (holding that Mother was entitled to recover her trial court attorney’s fees pursuant to the parties’ MDA, but using its discretion and concluding that Mother was justified in recovering attorney’s fees).

[4] Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009) (citing Fezell, 158 S.W.3d at 359; John Kohl & Co. P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 534 (Tenn. 1998)).

[5] See Tenn. Const. art. XI, § 2; Tenn. Const. art. I, § 20.  See also ARC LifeMed, Inc. v. AMC-Tennessee, Inc., 183 S.W.3d 1, 26 (Tenn. Ct. App. 2005) (“equity respects and upholds the fundamental right of the individual to complete freedom to contract”) (quotation omitted).

[6] Tenn. Code Ann. § 47-50-112(a).

Nashville Scene: “The Tennessee Supreme Court Keeps Reversing Itself, and Criminal Defense Attorneys Are Worried”

Via Stephen Elliot, The Nashville Scene: (link)

In 2012, the Tennessee Supreme Court ruled that a defendant who pleads guilty to a crime can appeal the judgment if exculpatory evidence is discovered later.

Four years later, the same court changed its mind.

What occurred in the intervening four years to necessitate such a pivot by the state’s highest court? Nothing, according to Justice Sharon G. Lee.

. . . .

“Since 2014, the Tennessee Supreme Court has aggressively sought to federalize Tennessee law by striking down state-specific protections that prior iterations of the court had developed under Tennessee’s state constitution and civil rules,” says Daniel Horwitz, a Nashville attorney and the editor of ScotBlog, a website devoted to the state Supreme Court. “A few significant state-level protections still remain. However, given that prior precedent — no matter how recent or firmly established — has had virtually no influence on the Tennessee Supreme Court’s decisions to overturn its previous rulings, it stands to reason that these protections are vulnerable to being abandoned as well.”

Read more: http://www.nashvillescene.com/news/features/article/20857900/the-tennessee-supreme-court-keeps-reversing-itself-and-criminal-defense-attorneys-are-worried

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February 2017 Tennessee Bar Results: Vanderbilt 100%, NSL 36%, Others Hover around 50%

It’s that time of year again, and the February 2017 bar exam results are out.  378 law school graduates took the February 2017 exam, which had an overall passage rate of 47%.  Applicants from Tennessee’s law schools[1] fared as follows:

Vanderbilt remained on top with a 100% passage rate for both first-time takers and re-takers.  By contrast, Nashville School of Law brought up the rear again with an overall passage rate of just 36% (a respectable 55% of NSL’s first-time takers passed the exam, but 76% of NSL’s re-takers failed it).  Belmont, Memphis, and UT boasted overall passage rates of 58%, 54%, and 50%, respectively.  Complete results from the February 2017 exam appear below.

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[1]  Because only one Duncan student took the exam, Duncan is omitted from this analysis, but Duncan’s only taker was unsuccessful.

 

Jason Bryant Statement on Recent Coverage Regarding Lillelid Murders

In the weeks leading up to a scheduled hearing on her petition for resentencing, Ms. Karen Howell—one of the co-defendants who pleaded guilty to the Lillelid murders—along with her co-defendant, Ms. Natasha Cornett, released a pair of lengthy, self-serving statements that several media outlets have since published unedited and without verification.  The Greene County District Attorney’s Office and its agents have since responded to those statements with statements to the media of their own.

Jason Bryant, the then-14-year-old child who has also filed a petition for resentencing on account of his being a juvenile at the time of his offense, has not sought to comment publicly on the case.  However, in response to the recent, prejudicial coverage relating to his upcoming proceedings, Daniel Horwitz, lead counsel for Jason Bryant, has released the following statement on Mr. Bryant’s behalf:

_______________

My heart breaks for the Lillelid family, which suffered what can only be described as a horrific and unspeakable tragedy.  It is, however, highly inappropriate for Karen Howell, Natasha Cornett, the Greene County District Attorney’s Office, or any other party involved in this case to attempt to litigate disputed legal issues through the media.  Those attempts have seriously prejudiced Jason Bryant’s right to a fair proceeding, and they will likely necessitate a change of venue when his hearing takes place.

Although Rule 3.6(a) of the Rules of Professional Conduct strongly counsels against public comment in cases like this, Rule 3.6(c) includes an exception permitting attorneys to make public statements when it becomes necessary to correct a misimpression in the public record due to “the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.”  Consequently, the purpose of this statement is to correct three such misimpressions.

First, Mr. Bryant did not shoot anyone, and no jury has ever determined that he did.

Second, former District Attorney General Berkeley Bell’s statement that “the co-defendants blamed the shooting on Bryant because he was the youngest of the group” is accurate, as is his statement that “Bryant wasn’t part of the group.”  In contrast, Karen Howell’s and Natasha Cornett’s self-serving statements assigning Jason Bryant the blame for the Lillelids’ murders are not.  When Jason Bryant’s adult co-defendants discovered that Mr. Bryant—who was the only outsider to the otherwise closely-knit group, and who was also the youngest member of the group by far—was actually a juvenile who had pretended to be significantly older than he was, one of his adult co-defendants instructed him that he had to take responsibility for the Lillelids’ slayings.  That individual then pointed a gun at Mr. Bryant, shot him in the hand, and threatened to kill him if he did not.  Mr. Bryant still has visible scars from this event where the bullet went through his hand and entered his leg.

Third, Mr. Bryant was threatened and coerced into joining the group plea bargain to life without the possibility of parole against his will and against his clear legal interests.  Jason Bryant was just a fourteen-year-old child at the time of the Lillelids’ murders, and thus, he was not eligible for the death penalty on account of his being a juvenile.  As such, Mr. Bryant gained nothing from accepting a group plea bargain to a life sentence without the possibility of parole, which served only to spare his adult co-defendants the death penalty.

It is our position that these facts and the U.S. Supreme Court’s recent Eighth Amendment jurisprudence establishing that it is nearly categorically unconstitutional to sentence juveniles to life without the possibility of parole entitle Mr. Bryant to a new sentencing hearing.  These issues, however, must be decided in a court of law, rather than in the court of public opinion.  Accordingly, this will be Mr. Bryant’s first and only public statement on this case.  We ask that the parties and the media respect the judicial process and refrain from further prejudicing Mr. Bryant’s right to a fair proceeding going forward.

_______________

###

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Metro Drops “Obscene Bumper Sticker” Citation Against Dustin Owens; Concedes Bumper Sticker Is Protected By the First Amendment

Nashville, Tennessee, March 13, 2017—In response to a lawsuit filed by Dustin Owens after he was cited for displaying what his arresting officer claimed was an “obscene bumper sticker,” lawyers for the Metropolitan Nashville Police Department have conceded that “Mr. Owens is correct that the bumper sticker at issue does not fit the criteria of ‘obscene and patently offensive’ as those terms are defined in Tenn. Code Ann. § 55-8-187 and under relevant First Amendment jurisprudence.”  As a result, Metro has agreed to dismiss Mr. Owens’ citation, and it will also submit to a declaratory judgment that the bumper sticker at issue “is protected by the First Amendment to the U.S. Constitution.”  Under the parties’ settlement agreement, Metro will also pay for the costs of Mr. Owens’ lawsuit.

Mr. Owens’ resounding legal victory comes after extensive local and national media coverage of his arrest for displaying the following crass but comical bumper sticker:

Said Daniel Horwitz, Mr. Owens’ lead counsel: “The statute under which Mr. Owens was cited is facially unconstitutional.  Hard-core censorship of this nature also has no place in a free society.  We’re ecstatic about this victory, and we appreciate Metro’s prompt concession that the position taken by Mr. Owens’ arresting officer was nakedly meritless.”

Added David L. Hudson, Jr., who also represented Mr. Owens in the lawsuit: “Mr. Owens’ bumper sticker is clearly protected speech, a form of parody, and not remotely close to obscenity.  I applaud Dustin’s courage in challenging his unconstitutional citation, and I am proud to have represented him.”

Mr. Owens’ Complaint against the MNPD and his Application for a Temporary Injunction are available here and here, respectively.  The individuals referenced in this release will be available for further comment at daniel.a.horwitz@gmail.com and davidlhudsonjr@gmail.com once the parties’ settlement agreement has been approved by the Court.

Selected media coverage regarding the case is available at the following links:

Selected Media Coverage:

-Patch: Obscenity Charges Dropped In Nashville Stick Figure Sex Case

-Faultlines: Nashville Cops Hate Stick Figure Sex (and the First Amendment)

-Heat Street: Tennessee Cops Back Down on Fine For ‘Obscene’ Bumper Sticker of Stick Figures

-TechDirt: Driver Sues State After Receiving Ticket For ‘Obscene’ Stick Figure Vehicle Decal

Case Filings:

Plaintiff’s Complaint

Plaintiff’s Application for Temporary Injunction

*Order Granting Judgment to Plaintiff

###

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Bill Introduced to Allow In-Home Beauty Services in Tennessee

Nashville, Tenn. – February 8, 2017 — State Senator Steve Dickerson, R-Nashville, and State Representative Sam Whitson, R-Franklin, introduced legislation today that would allow Tennesseans to purchase cosmetology services in the privacy of their own homes.

The reform comes after The Tennessee Board of Cosmetology and Barber Examiners filed a complaint last year against Belle, a popular Nashville-based technology company that provides on-demand health and beauty services.  The Board initially alleged that Belle was violating the state’s cosmetology laws, but withdrew its complaint after Belle formally contested the Board’s allegations.  The Board’s decision to withdraw its complaint was covered widely in local, state and national media including Forbes​, ​Yahoo, ​Reason, ​the Nashville Business Journal​ and ​​the Memphis Commercial Appeal, among others.

“As we move forward into the 21st century, we must update state rules and regulations to reflect the realities of the 21st century economy,” said Senator Dickerson.  “This bill will remove barriers that are denying Tennesseans the opportunity to develop and grow in their chosen profession. By removing these impediments, we allow the entrepreneurial spirit of Tennesseans to flourish, increase freedom and enhance choice for our state’s consumers.”

“The regulatory structure of our state must be thoughtfully crafted in such a manner as to allow for constant innovation and facilitate consistent growth in the new economy,” added State Representative John Ray Clemmons, D-Nashville, an early supporter of the reform.  “Tennessee must strive to attract entrepreneurial talent and new jobs.”

“Last fall, the Tennessee Board of Cosmetology unlawfully attempted to shut down one of Nashville’s most exciting new tech companies for the sole purpose of protecting an out-of-date industry competitor from competition,” said Daniel Horwitz, Belle’s attorney.  “This bill ensures that the Board will be prevented from engaging in such lawless behavior ever again.”

“The repeal of these outdated regulations means beauty professionals can freelance in a way that they see fit, and whether that’s with us or by themselves, I believe everyone has that right,” said Armand Lauzon, CEO of Belle. “This new legislation paves the way for further innovations and economic growth in Tennessee, and perhaps most importantly, it will allow consumers to have the right to make the choices they deserve.”

Read more about the case below:

Tennessee Regulators Drop Complaint, Won’t Block Beauty App From Operating

Tennessee Wants To Shut Down This Beauty And Health App For Offering ‘Highly Disturbing’ Competition

Regulators withdraw complaint against Nashville-based startups

Tennessee Cosmetology Board Admits it Doesn’t Have Authority To Regulate Tech Companies

How This Nashville Tech Company Challenged a State Regulatory Board and Won

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New in the February 2017 Tennessee Bar Journal: Safeguarding Crime Victims’ Private Records Following The Tennessean v. Metro

By Daniel Horwitz:

In March 2016, the Tennessee Supreme Court ruled 4–1 that law enforcement’s investigative files are categorically exempt from public disclosure under the Tennessee Public Records Act (TPRA) throughout the pendency of a criminal case. The underlying lawsuit pitted a vast media coalition spearheaded by The Tennessean against both law enforcement officials and a rape victim who intervened to protect her privacy interests under the pseudonym “Jane Doe.” Ultimately, the court’s majority opinion represented a resounding victory for law enforcement and a significant setback for Tennessee’s news media, which lost on every substantive claim presented. At present, however, how the court’s ruling will affect crime victims’ ability to protect their private records from public disclosure after criminal proceedings have concluded is uncertain.

Continue reading New in the February 2017 Tennessee Bar Journal: Safeguarding Crime Victims’ Private Records Following The Tennessean v. Metro

The Tennessee Supreme Court Has Agreed to Hear a Laughably Egregious Case of Economic Protectionism

The Tennessee Supreme Court has agreed to hear a laughably egregious case of economic protectionism in its upcoming term.  The case pits Vanderbilt Law School alumnus Maximiliano Gluzman – a preeminently qualified lawyer who graduated Vanderbilt’s LL.M. program with an almost impossible 3.919 GPA – against the Tennessee Board of Law Examiners, which has refused to allow Mr. Gluzman to take the Tennessee bar exam solely because he’s foreign.

Given the extraordinary facts of Mr. Gluzman’s case, the Board will struggle to mount a straight-faced claim that its decision to deny Mr. Gluzman the opportunity to take the Tennessee bar exam is based on anything other than its interest in protecting Tennessee’s native-born attorneys from competition—a result that benefits lawyers but harms consumers by artificially raising prices.  As a consequence, the case has the potential to extend Tennessee’s already-robust precedent on economic liberty to an industry that it has never reached before: legal services.

In 2002, the United States Court of Appeals for the Sixth Circuit – which has jurisdiction over Tennessee – established ground-breaking federal precedent by holding that “protecting a discrete interest group from economic competition is not a legitimate governmental purpose” and violates the 14th Amendment to the U.S. Constitution.[1]  Significantly, though, the Tennessee Supreme Court boasts an even prouder history of protecting economic liberty under the comparable provisions of Tennessee’s state Constitution.  For example, in the 1956 case Consumers Gasoline Stations v. City of Pulaski, the Tennessee Supreme Court held that: “Although [a] city may have the right to regulate [a] business, it does not have the right to exclude certain persons from engaging in the business while allowing others to do so.”[2]  Additionally, more than half a century before that, the Tennessee Supreme Court held in Harbison v. Knoxville Iron Co. that:

“The ‘liberty’ contemplated in [the Tennessee Constitution] means not only the right of freedom from servitude, imprisonment, or physical restraint, but also the right to use one’s faculties in all lawful ways, to live and work where he chooses, to pursue any lawful calling, vocation, trade, or profession, to make all proper contracts in relation thereto, and to enjoy the legitimate fruits thereof.[3]

Of note, the Tennessee General Assembly has since expanded these precedents even further as a legislative matter by enacting the “Right to Earn a Living Act” in 2016,[4] which recognized that: “it is in the public interest to ensure the right of all individuals to pursue legitimate entrepreneurial and professional opportunities to the limits of their talent and ambition” without unnecessary governmental interference.

Ostensibly, bar admission rules are intended to protect the public from unqualified attorneys.  Historically, however, they’ve often been wielded to keep disfavored minorities—like Jews and women—from becoming lawyers instead.[5]  Barriers imposed between states themselves have also been used more often than not to “insulat[e] [in-state] practitioners from out-of-state competition,”[6] rather than being adopted for the purpose of promoting any actual public interest.  Such is the case with respect to Mr. Gluzman as well—a fact that the Tennessee Supreme Court is highly unlikely to overlook.

In Mr. Gluzman’s case, there can be no serious claim that he would pose even the slightest threat to the public if he were permitted to take the Tennessee bar exam.  In fact, during Mr. Gluzman’s hearing before the Board of Law Examiners, the Board itself conceded that Mr. Gluzman was “obviously a very, very qualified person.”  His extraordinary academic credentials also support this conclusion in full.  For example, while competing against Vanderbilt’s American JD students (in his second language, no less), Mr. Gluzman was able to graduate with an eye-popping 3.919 GPA—good enough to put him at the top of Vanderbilt’s Dean’s List each semester and quite possibly making him the most academically-qualified foreign applicant ever to apply to take the bar exam in Tennessee.  Two of Mr. Gluzman’s Vanderbilt Law School professors also provided expert testimony in support of his application to take the bar exam, with one observing that Mr. Gluzman was “one of the very best students I ever had the privilege of teaching in 20 years,” and the other testifying that he was “clearly top of the class.”  Mr. Gluzman’s application to take the Tennessee bar exam also comes after more than a decade of professional success as a corporate lawyer in Argentina.

Despite this sterling record of achievement, however, the Board of Law Examiners denied Mr. Gluzman not only the opportunity to become a lawyer in Tennessee—it told him that he may never even take the Tennessee bar exam.  The purported basis for the Board’s denial was that Mr. Gluzman’s undergraduate and legal education were not “substantially equivalent” to an American education: a conclusion that itself conflicts with an expert foreign credential evaluation report filed in his case that unequivocally concluded otherwise.  According to the Board, though, a foreign applicant like Mr. Gluzman must have earned “a degree that is equivalent to a Bachelor’s degree or higher followed by a degree that is equivalent to a Juris Doctorate degree,” which he did not.

Conveniently, because the vast majority of countries around the world combine undergraduate and legal educations into just a single degree over the course of a five- or six-year period, one expert witness testified that only “[foreign] students from nine Canadian provinces, a few Australian students, and a few Japanese students” may ever hope to win permission take the Tennessee bar exam under the Board’s current standard.  Attorneys from anywhere else in the world, however, are forever prohibited from becoming lawyers in Tennessee unless they opt to re-do their entire undergraduate and legal education in the United States.  Obviously, no foreign applicant is willing to forfeit the time (seven years) and money (hundreds of thousands of dollars at a minimum, factoring in opportunity costs) necessary to satisfy that requirement.  Instead, the only rational decision is to move to states like Texas, which makes an effort to accommodate foreign attorneys rather than placing insurmountable barriers in front of them for the purpose of curbing competition.

Exacerbating this groundless discrimination, LL.M. Degrees – which many states permit to “cure” any claim of insufficient foreign credentials – from law schools like Vanderbilt and the University of Tennessee are now disregarded as useless by the Tennessee Board of Law Examiners if an attorney does not hail from one of the three aforementioned countries with law schools that match American JD programs.  Thus, if permitted to stand, the Board’s decision would significantly undermine the integrity of the LL.M. programs offered by Tennessee’s two flagship law schools.  Fearing lasting and devastating consequences from the Board’s grievous error, the Board’s decision immediately prompted Vanderbilt University and UT to file a joint petition in support of Mr. Gluzman highlighting the seriousness of the problem that the Board had created.  Even then, however, the Board opted to ignore it.

In addition to disregarding Mr. Gluzman’s surpassing personal qualifications, the reality that the Board of Law Examiners is not actually focused on protecting the public from unqualified lawyers is revealed by the fact that it has taken no apparent interest in the declining bar passage rates posted by Nashville School of Law in recent years.  The last time the bar exam was administered in Tennessee, for example, fully 72% of Nashville School of Law graduates failed it—a fact that did not visibly cause the Board of Law Examiners even the slightest concern.  Now, however, an indisputably qualified Vanderbilt Law School graduate wants to sit for the bar exam, but because he’s foreign, the Board won’t even let him take it?  Plainly, the Board’s motives have little and less to do with protecting the public from unqualified lawyers, and a great deal more to do with protecting American attorneys from foreign competition.  Whether the Board’s decision – and all of its attendant consequences – will be permitted to stand, however, only time will tell.

Gluzman v. Tennessee Board of Law Examiners is expected to be heard in the Spring or Summer of 2017.  Read Mr. Gluzman’s brief before the Tennessee Board of Law Examiners here.

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[1] Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002).

[2] 292 S.W.2d 735, 737 (Tenn. 1956).

[3] 53 S.W. 955, 957 (Tenn. 1899).

[4] See Tenn. Code Ann. § 4-5-501, et seq. (2016).

[5] See Deborah Rhode, Moral Character As A Professional Credential, 94 Yale L.J. 491, 497-502 (1985) (noting that State bars historically have excluded women, Jews, those of Eastern European decent, religious fanatics, Communists, and adulterers, among others, because these allegedly socially unacceptable or radical political behaviors were said to have demonstrated a propensity to violate professional norms).

[6] Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 278 (1985).

U.S. Supreme Court to Hear Tennessee Sixth Amendment Case on Immigration-Related Plea Bargains

By Daniel Horwitz:

The United States Supreme Court has agreed to hear a Sixth Amendment case out of Tennessee in its March 2017 sitting.  The case – Jae Lee v. United States[1] – focuses on the Sixth Amendment’s guarantee of effective assistance of counsel when plea bargains trigger deportation consequences.  Specifically, Jae Lee will determine whether a defendant who would likely have been convicted if he had proceeded to trial is prejudiced by ineffective counsel when he accepts a guilty plea on the basis of erroneous legal advice that he will not be deported.

The facts of Jae Lee are not in dispute.  In 1982, Mr. Lee legally immigrated to the United States from South Korea.  Thereafter, Mr. Lee completed high school and moved to Memphis with his family, where he became a successful restaurateur.  As the Sixth Circuit noted, however, Mr. Lee “also became a small-time drug dealer,” and in 2009, he “was charged with possession of ecstasy with intent to distribute” in violation of federal drug laws.  If convicted, Mr. Lee would immediately become deportable.  Unfortunately for Mr. Lee and his family, the case against him was also very strong.

After being indicted, Mr. Lee’s criminal defense attorney advised him to plead guilty in exchange for a lighter sentence.  Mr. Lee’s attorney also advised him that if he accepted a guilty plea, he would not be deported.  On the basis of that advice, Mr. Lee decided to plead guilty.

Unfortunately for Mr. Lee, the advice that he received from his attorney turned out to be spectacularly wrong.  Notwithstanding his attorney’s advice to the contrary, Mr. Lee’s guilty plea actually did render him deportable, and he was immediately subjected to removal proceedings as a result.  Had he avoided a criminal conviction or been convicted of a different offense, however, Mr. Lee would have been permitted to remain in the country.

Understandably upset that he had pleaded guilty based on legal advice that turned out to be completely incorrect, Mr. Lee sought to withdraw his guilty plea on the basis that he had received the ineffective assistance counsel.  Under the standard for ineffective assistance of counsel established in Strickland v. Washington,[2] a defendant must satisfy two separate requirements in order to prevail.  First, a defendant must demonstrate that his attorney’s performance was “deficient” in that it fell below prevailing professional norms.  Second, the defendant must demonstrate that he suffered legal “prejudice” as a consequence of his counsel’s deficient performance.  Both requirements must be met in order to win a claim of ineffective assistance of counsel, which – if successful – would have allowed Mr. Lee to withdraw his guilty plea and proceed to trial instead.

Because the government conceded that Mr. Lee’s attorney had rendered deficient counsel by misadvising him about the deportation consequences of accepting a guilty plea, the only question remaining was whether Mr. Lee was legally “prejudiced” by his attorney’s erroneous advice.  Typically, a defendant challenging a conviction on the basis of ineffective assistance of counsel must prove that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”[3]  Importantly, however, when it comes to plea bargaining, the test for prejudice is slightly more favorable to defendants.  Generally, to withdraw a guilty plea on the basis of ineffective counsel, a defendant must show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”[4] As this author explains in his 2016 Harvard Latino Law Review article on this subject, however, following the U.S. Supreme Court’s landmark 2010 decision in Padilla v. Kentucky,[5] immigration-related pleas have a different standard still.  Specifically:

“In the context of deficient immigration counsel, [] the test is whether ‘a decision to reject the plea bargain would have been rational under the circumstances.’ It is not yet clear whether, or to what extent, there is a substantive difference between these standards, and indeed, the Government occasionally ‘wobbles between the two standards for allowing the withdrawal of one’s guilty plea upon belated discovery of the deportation threat.’  What is clear, however, is that the test for prejudice under Padilla is not whether a defendant would have been deported anyway.  Instead, it is whether the defendant would rationally have rejected the offered plea bargain and either proceeded to trial or negotiated an alternative plea bargain if the defendant had received the competent immigration counsel to which all immigrants are constitutionally entitled.”[6]

The federal Circuits are deeply divided on whether it can ever be “rational” for an obviously guilty defendant to reject a plea bargain and instead attempt to “throw a Hail Mary” at trial in the hopes of avoiding near-certain deportation consequences.[7]  After acknowledging this split of authority, the Sixth Circuit reaffirmed its prior holding in Pilla v. United States that “no rational defendant charged with a deportable offense and facing ‘overwhelming evidence’ of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence.”  Accordingly, the Sixth Circuit denied Mr. Lee an opportunity to withdraw his guilty plea, and the Supreme Court granted review.

The problem with the Sixth Circuit’s (and several other Circuits’) take on this issue, however, is that it misapplies the standard for prejudice under Padilla and also violates the bedrock constitutional requirement that a guilty plea must be entered voluntarily.  As Judge Posner of the Seventh Circuit wrote in a similar case, for example, “[j]udges and prosecutors should hesitate to speculate on what a defendant would have done in changed circumstances,” and “a criminal defendant cannot be denied the right to a trial, and forced to plead guilty, because he has no sturdy legal leg to stand on but thinks he has a chance that the jury will acquit him even if it thinks he’s guilty.”[8]  Additionally, as this author explains in his Harvard Latino Law Review article referenced above, “several commentators have recognized the reality that in most instances, non-citizen defendants are likely to view deportation as a far more serious punishment than a conviction that results in incarceration.” Thus:

By any metric, a defendant who accepts a guilty plea as a consequence of [] affirmative misadvice [that he will not be deported]—only to learn later on that he is to be deported anyway—has suffered serious prejudice in the form of a criminal conviction due to his counsel’s incompetence.

This sort of bait-and-switch—which, incidentally, occurred in Padilla itself—represents a classic case of ineffective assistance of counsel. Indeed, on this point, even the two concurring Justices in Padilla enthusiastically agreed. As Justice Alito explained:

when a defendant bases the decision to plead guilty on counsel’s express misrepresentation that the defendant will not be removable[,] . . . it seems hard to say that the plea was entered with the advice of constitutionally competent counsel—or that it embodies a voluntary and intelligent decision to forsake constitutional rights [at all].

Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1, 19 (2016).

Consequently, given that fully seven of the Supreme Court’s eight current Justices have held that a defendant cannot be denied the opportunity to withdraw a guilty plea under these circumstances, it seems likely that Mr. Lee – and his excellent Tennessee attorney Patrick McNally – will ultimately prevail.

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[1] 825 F.3d 311 (6th Cir. 2016), cert. granted, No. 16-327, 2016 WL 4944484 (U.S. Dec. 14, 2016).

[2] 466 U.S. 668, 687 (1984).

[3] Id. at 694.

[4] Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

[5] 559 U.S. 356 (2010).

[6] Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1, 15 (2016) (citations omitted).

[7] Compare Pilla v. United States, 668 F.3d 368, 373 (6th Cir. 2012); Haddad v. United States, 486 Fed. Appx. 517, 521–22 (6th Cir. 2012); Kovacs v. United States, 744 F.3d 44, 52–53 (2d Cir. 2014); United States v. Akinsade, 686 F.3d 248, 255–56 (4th Cir. 2012); and United States v. Kayode, 777 F.3d 719, 724–29 (5th Cir. 2014), with United States v. Orocio, 645 F.3d 630, 643–46 (3d Cir. 2011), abrogated on other grounds by Chaidez v. United States, ––– U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); DeBartolo v. United States, 790 F.3d 775, 777–80 (7th Cir. 2015); United States v. Rodriguez–Vega, 797 F.3d 781, 789–90 (9th Cir. 2015); Hernandez v. United States, 778 F.3d 1230, 1234 (11th Cir. 2015).

[8] DeBartolo v. United States, 790 F.3d 775, 778-89 (7th Cir. 2015).