Earlier this morning, the Tennessee Board of Law Examiners released the results of the February 2018 Tennessee Bar Exam. Taken by 281 prospective lawyers, the exam resulted in an unusually low total passage rate of 35%. Although Vanderbilt Law School and the University of Memphis School of Law posted respectable passage rates of 100% and 58%, respectively, the total rate of successful takers was dragged down substantially by another dismal performance by Nashville School of Law, which posted an overall passage rate of just 13%.
Mr. Gluzman’s success, while unsurprising, is also particularly sweet for his lawyer (the author), who has spent much of the past year bristling at the Board of Law Examiners’ assertion—supplied by former Tennessee Supreme Court Justice William Barker—that most people like Mr. Gluzman who take the bar exam “don’t pass.” Like his colleagues on the Board of Law Examiners, former Justice Barker specifically voted against permitting Mr. Gluzman the opportunity even to sit for the bar exam on the basis that: “I just hate for people to come spend all the time and money and years of their lives with no possibility of passing.” Mr. Gluzman has since passed two bar exams, each on his first attempt.
Speaking of people who spend a huge amount of “time and money and years of their lives with no possibility of passing,” however, it is long past time for the Tennessee Board of Law Examiners to take a serious look at what has been going on at Nashville School of Law. For context, in 2014, Nashville School of Law secured new leadership and pledged to improve its state-worst passage rate of what was then 65-70%. Since that time, the school has posted overall passage rates of 50% (February 2015), 28% (July 2015), 30% (February 2016), 28% (July 2016), 35% (February 2017), 38% (July 2017), and 13% (February 2018). In other words: the school is on a downward trajectory, and it hasn’t had a majority of its students pass the bar exam in years. Thus, if the Board of Law Examiners’ concern—expressed passionately with regard to foreign applicants like Mr. Gluzman—that prospective students will spend time and money training for an exam that they have little hope of passing was genuine, then presumably, Nashville School of Law’s consistently anemic passage rate will at some point come under the Board’s microscope.
It should be emphasized that Nashville School of Law has produced many wonderful, capable graduates—including the author’s co-counsel in another major Supreme Court victory earlier this week. Thus, the issue likely has less to do with poor instruction than it does an administration that has liberalized admissions standards and accepted applicants who statistically have no reasonable chance of passing the bar exam after graduating. As the author has previously explained:
Driven by a rapid decrease in law school applicants over the past several years (the total number of law school applicants has declined precipitously since 2010, falling from a high of 87,900 to a low of 54,130 in 2015), the academic credentials of incoming law students have measurably decreased. Controversially, many law schools have responded to this problem (and the corresponding loss of revenue) by decreasing their admissions standards, which has predictably resulted in lower bar passage rates post-graduation.
In other words: to make up for lost revenue, many law schools have simply let in anybody who is willing to pay tuition. The result is a major disservice to countless students who ultimately waste years of their lives and tens of thousands of dollars (or more)—not including opportunity costs—in pursuit of a profession that they likely will never be able to practice.
If Nashville School of Law were accredited by the American Bar Association, it would have been subject to discipline for both its lax admissions standards and its atrocious bar passage rate a long time ago, as Duncan School of Law was earlier this week. However, Nashville School of Law is not an ABA-accredited law school, and it is instead regulated directly by the Tennessee Supreme Court. Hopefully, at some point soon, the Court will step in and force the school to improve its admissions standards in the name of protecting hundreds of future applicants from wasting their time and money on a degree that they will never be able to use.
UPDATE: By Order issued 4/10/2018, Nashville’s Mayoral Election must be held in May. The Court’s unanimous opinion is available here.
“We are grateful that the Tennessee Supreme Court has issued a powerful, persuasive, and unanimous opinion vindicating Mr. Wallace’s claim that the Charter is clear and that Metro Government cannot unilaterally nullify a referendum supported by 83% of voters.” —Jamie Hollin and Daniel Horwitz, Counsel for Ludye Wallace
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Yesterday afternoon, the Tennessee Supreme Court’s full gallery of onlookers was treated to an unprecedented event: an emergency appeal demanding that Metro Nashville hold a near-immediate special election to fill the vacancy in its Mayor’s office. The office became vacant on March 6, 2018, when ex-Mayor Megan Barry resigned after pleading guilty to felony theft. Following an extraordinary oral argument in which lawyers for the city argued that they had provided an “inaccurate” ballot summary to voters, the Court announced that it would issue a ruling sometime this week.
The emergency appeal—filed on behalf of Mayoral candidate and former Metro Councilman Ludye Wallace—centers on Section 15.03 of Nashville’s Metro Charter. In pertinent part, that section reads: “There shall be held a special metropolitan election to fill a vacancy for the unexpired term in the office of mayor . . . whenever such vacancy shall exist more than twelve (12) months prior to the date of the next general metropolitan election.” Consequently, the case turns on when “the next general metropolitan election” is scheduled to take place. If, as Mr. Wallace argues, “the next general metropolitan election” is not until August 2019, then a special election must be held in May. If, as Metro argues, there will be a “general metropolitan election” in August 2018, however, then the election can be held then.
Helpfully, the Metro Charter expressly defines “general metropolitan elections.” One provision of the Charter—Section 15.01—is specifically titled “When general metropolitan elections held,” and it makes clear that such elections are only held every fourth August in odd-numbered years. Another Charter provision referring exclusively to those four-year August elections—Section 15.02—uses the term “the general metropolitan election” seven separate times. And another Charter provision—Section 18.06—reflects that Metro has uniformly considered those specific four-year August elections to be the only type of “general metropolitan elections” for decades.
Most clearly, however, because Section 15.03 was enacted by voter referendum in 2007, Metro was also required to provide a summary of the provision at the time that it was being considered for adoption by voters. By law, that summary had to be “worded so as to convey [the amendment’s] meaning.” Helpfully, in clear (and admittedly unambiguous) terms, the ballot summary stated: “This amendment would require that a special election be held to fill a vacancy in the office of mayor . . . whenever more than twelve (12) months remain in the unexpired term.”
Because more than eighteen months remained in ex-Mayor Barry’s term when she resigned, it would seem clear that Section 15.03 requires “that a special election be held to fill a vacancy in the office of mayor,” since all agree that “more than twelve (12) months remain in the unexpired term.” Attempting to avoid this result, however, Metro lawyers argued to the court yesterday that the ballot summary they provided to voters was inaccurate.
Responding to that claim, Mr. Wallace’s counsel argued that such a position—if tolerated—would call “the integrity of the referendum process and the democratic process itself into question.” Although that contention did not appear to be well-received by one Justice, it was certainly well supported. Under similar circumstances, court after court has held that “[t]he citizen initiative constitutional amendment process relies on an accurate, objective ballot summary for its legitimacy.” See In re Advisory Opinion to the Atty. Gen. re Additional Homestead Tax Exemption, 880 So. 2d 646, 653 (Fla. 2004). See also Zukerberg v. Bd. of Elections & Ethics, 97 A.3d 1064, 1079 n. 77 (D.C. 2014) (“the summary is very important, because it will likely form the basis of a voter’s decision.”). In a recent decision concerning Amendment 1 to the Tennessee Constitution, the U.S. Court of Appeals for the Sixth Circuit similarly explained that misleading voters without notice creates a Due Process problem.
Here, in undisputed reliance upon Metro’s “inaccurate” ballot summary, 83 percent of Nashville’s voters voted in favor of the amendment, and it carried every single precinct in the county. As Mr. Wallace has argued, the measure also ensures that Nashville’s residents will promptly be able to ensure “that their Mayor is someone who was actually elected to represent them.” Consequently, the notion that Metro can bait voters into supporting a referendum under a specifically defined set of terms and then attempt to change the provision’s meaning after the fact is, frankly, preposterous.
In an important win against investigative abuse, the Estate of Jocques Clemmons has secured all of the relief that it sought in a February 9, 2018 lawsuit concerning the Metro Nashville Police Department’s efforts to search Mr. Clemmons’ cell phone and social media accounts following his death. The MNPD and MNPD Detective Danny Satterfield—who procured the warrants at issue and was similarly sued by Mr. Clemmons’ estate—also formally acknowledged that the search warrants that were sought against Mr. Clemmons could “be construed as overbroad.”
Following a settlement agreement reached on March 2nd, the MNPD agreed to relinquish Mr. Clemmons’ cell phone to his mother, which it had refused to turn over for more than a year following Mr. Clemmons’ death. Yesterday, in keeping with the parties’ settlement agreement, the MNPD also filed a Declaration of Compliance certifying that the defendants had “administratively expunged and destroyed all data in their possession retrieved from Jocques Clemmons’ Instagram account and Facebook account.” Accordingly, earlier this morning, the U.S. District Court for the Middle District of Tennessee issued a Final Order terminating the case.
The lawsuit arose out of a fatal officer-involved shooting on February 2017, during which Mr. Clemmons was shot in the back. Days after Mr. Clemmons was killed, MNPD Detective Danny Satterfield filed three search warrant applications seeking “any/all data contained and/or stored within” Mr. Clemmons’ Facebook account, Instagram account, and cell phone. Without any stated time or content limitation whatsoever, the warrants specifically sought Mr. Clemmons’ “pictures, videos, audio, text messages, incoming/outgoing Facebook Messanger [sic] conversations, voicemails, chat logs, contact information, call logs, emails, internet data, Wi-Fi data, IP address(es), search history, maps, locations, GPS data, drafts, deleted files/folders, etc.”
Officer Satterfield’s search warrant applications stated under oath that he had probable cause to believe that all of the data on Mr. Clemmons’ social media accounts and cell phone contained “certain evidence” of a crime committed by Mr. Clemmons, who was by then deceased and not subject to arrest. A month later, however, the MNPD acknowledged that whether Mr. Clemmons’ social media accounts or cell phone contained any relevant evidence was actually “unknown.” Disturbingly, such efforts to rifle through decedents’ social media accounts and cell phones in search of damaging information after controversial officer-involved shootings are not isolated.
“While we remain disappointed that these three wildly overbroad and comically unconstitutional search warrants were ever sought or approved in the first place, we appreciate that the MNPD has now taken the steps necessary to remedy those prior illegalities,” said attorney Daniel Horwitz, who represented Mr. Clemmons’ estate. “The Clemmons family is very happy to have back his phone—which contains several cherished family photos—and it is satisfied that the MNPD has now destroyed the data that it unlawfully obtained from Mr. Clemmons’ social media accounts following his death.”
Election season is back! As Nashville gears up for a major transit referendum and readies itself to choose critical new officeholders for…Register of Deeds and several other county offices that we inexplicably elect, the time for junk mail, jingles, and internal party shenanigans is officially upon us.
This blog has previously tackled the issue of whether trying to vote in another party’s primary is illegal (it’s not). For this edition of “is that really allowed?”, we examine whether a political party can disqualify a candidate from running as a Democrat after fundraising for Republicans (or vice versa). The answer: Yes—and candidates can also be disqualified by parties for any other reason the party sees fit.
Yesterday afternoon, a Democratic voter in Nashville officially contested the Democratic qualifications of Angelita (“Angie”) Dalton, who is running for Criminal Court Judge. In August of last year, before being elevated to Criminal Court Judge by Republican Governor Bill Haslam, then-General Sessions Judge Dalton apparently contributed $250.00 to the Republican Party of Tennessee after attending a GOP fundraiser headlined by Vice President Mike Pence:
The donation appears to implicate some judicial ethics issues—Rule 4.1(A)(4) of Tennessee’s Code of Judicial Conduct prohibits sitting judges from “mak[ing] a contribution to a political organization”—but Judge Dalton’s primary concern is certain to be political. Given most Tennessee Democrats’ outright revulsion to Vice President Pence, to the Trump White House, and to the Tennessee Democratic Party’s chief political opponent (the Republican Party of Tennessee) in general, Democrats, it seems, are not pleased.
Enter Judge Dalton’s $250.00 contribution to the Tennessee Democratic Party’s chief political rival. Can she still run as a Democrat despite that donation, or is such a contribution grounds for disqualification? If the TNDP would like to disqualify her—which it has no obligation to do—the answer is that Judge Dalton can absolutely be disqualified from running in the upcoming Democratic Primary. Some Democrats (like the author, for instance), have also called for more robust enforcement of the Democratic Party brand to prevent people like Sheriff David Clarke from ruining it. Whether the TNDP will act on the pending petition to disqualify Judge Dalton, however, is a different question entirely.
Tennessee law expressly provides—as it must—that “[a] party may require by rule that candidates for its nominations be bona fide members of the party.” See Tenn. Code Ann. § 2-13-104. Tennessee law also provides that the state executive committee of a political party “with which a primary candidate filed [a qualifying] petition” is empowered to “determine[] that the candidate is not qualified” and have him or her removed from the party’s primary ballot. See Tenn. Code Ann. § 2-5-204(a).
In determining whether a candidate qualifies as a “bona fide” Democrat, the TNDP’s bylaws helpfully include a specific definition. Specifically, they provide:
“A bona fide Democrat is defined as an individual whose record of public service, actions, accomplishment, public writings and/or public statements affirmatively demonstrates that he or she is faithful to the interests, welfare and success of the Democratic Party of the United States and of the State of Tennessee. The State Party or a county party may make exceptions to this rule for requesting individuals in the spirit of an inclusive and a growing Party.”
Whether Judge Dalton’s contribution to the Tennessee Republican Party indicates that she is not “faithful to the interests, welfare and success of the Democratic Party” is an unreviewable question that only the TNDP is equipped to answer. If past is prologue, the TNDP is also unlikely to act on the challenge, in which case Judge Dalton would remain qualified to run as a Democrat. As to whether the TNDP is permitted to disqualify her from doing so, however, the law is equally clear: it can.
[3]Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 453, 128 S. Ct. 1184, 1192, 170 L. Ed. 2d 151 (2008) (citing Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359, 117 S. Ct. 1364, 1370, 137 L. Ed. 2d 589 (1997)).
Nashville, TN—The Estate of Jocques Scott Clemmons, the Nashville man who was fatally shot in the back by Metro Nashville Police Officer Joshua Lippert on February 10, 2017, has filed a lawsuit regarding the MNPD’s successful efforts to search his social media accounts following his death.
Days after Mr. Clemmons was killed, MNPD Officer Danny Satterfield filed three separate search warrant applications seeking “any/all data contained and/or stored within” Mr. Clemmons’ Facebook account, Instagram account, and cellular telephone. Without any stated time or content limitation whatsoever, the warrants specifically sought Mr. Clemmons’ “pictures, videos, audio, text messages, incoming/outgoing Facebook Messanger [sic] conversations, voicemails, chat logs, contact information, call logs, emails, internet data, Wi-Fi data, IP address(es), search history, maps, locations, GPS data, drafts, deleted files/folders, etc.” Officer Satterfield also sought nearly identical information from Mr. Clemmons’ Instagram account and cell phone.
Mr. Clemmons was already deceased at the time of Officer Satterfield’s warrant applications. Accordingly, he was not subject to arrest for any crime. Even so, Officer Satterfield claimed that the warrants were necessary to investigate an “aggravated assault” that Mr. Clemmons had committed against Officer Lippert. Notably, however, video released prior to Officer Satterfield’s warrant applications had already revealed that the altercation that Officer Satterfield claimed to be investigating had not occurred.
Officer Satterfield’s warrant applications stated under oath that he had probable cause to believe that all of the data on Mr. Clemmons’ social media accounts and cell phone contained evidence of Mr. Clemmons’ supposed aggravated assault against Officer Lippert. In a subsequent statement, however, the MNPD acknowledged that whether Mr. Clemmons’ social media accounts or cell phone contained any relevant evidence was, in fact, “unknown.” Based on the warrants’ lack of probable cause and several other constitutional deficiencies, Mr. Clemmons’ estate has filed suit seeking the return of all property seized as a result of Officer Satterfield’s defective search warrants.
“Mr. Clemmons’ Facebook and Instagram accounts had no conceivable bearing on the supposed crime that the MNPD claimed to be investigating, and Officer Satterfield’s comically unconstitutional warrant applications did not even bother to pretend that they did,” said Nashville attorney Daniel Horwitz, who filed the lawsuit on behalf of Mr. Clemmons’ estate. “Further, at the time that Officer Satterfield applied for the search warrants at issue, there was literally nobody on earth who was less likely to be arrested than Mr. Clemmons, who had been deceased for nearly a week. These search warrants could not have been any less valid if they were written in crayon.”
“We hope that the Mayor and the MNPD will do right by Mr. Clemmons’ family by returning his cell phone and relinquishing whatever private information they pulled from his social media accounts in their effort to assassinate his character,” Horwitz added.
The lawsuit was filed in the U.S. District Court for the Middle District of Tennessee. The plaintiff’s pleadings are copied below.
In an order issued late Friday afternoon, the Tennessee Supreme Court officially reformed its rules to provide a clear path for international lawyers to obtain licensure in Tennessee. The Court’s amendment to Tennessee Supreme Court Rule 7 § 7.01, which governs admission requirements for attorneys educated in foreign jurisdictions, comes on the heels of a recent win by attorney Maximiliano Gluzman, whose victory before the Tennessee Supreme Court last summer made national news.
Despite acknowledging that Gluzman—who had graduated Vanderbilt Law School’s LL.M program with an eye-popping 3.919 GPA while competing against American J.D. students in his second language—was “obviously very, very qualified,” the Tennessee Board of Law Examiners still attempted to prevent him from taking the Tennessee bar exam because he had received his first law degree from Argentina. After getting the Board’s denial overturned last August, however, Gluzman is set to take the Tennessee bar exam next month. Based on the Court’s reforms, other international lawyers will now be able to follow his lead.
“The Tennessee Supreme Court should be applauded for implementing this sensible rule change, which will significantly benefit consumers, provide Tennesseans greater access to new markets, and help solidify Tennessee’s increasingly large role in conducting international business,” said Daniel Horwitz, Gluzman’s attorney. “We’re proud to have set this change in motion, and we’re thrilled that other qualified international lawyers will now be able to follow in Mr. Gluzman’s footsteps.”
Tennessee’s law schools—which can now offer LL.M. programs with confidence that they will offer practical value to graduates—welcomed the news as well. “We’re pleased that the Court was willing to revisit the rule and provide greater clarity to prospective students and law schools,” University of Tennessee College of Law Associate Dean for Academic Affairs Alex B. Long told the Nashville Post.
The Court’s rule changes were formally prompted by a joint petition initiated by the University of Tennessee College of Law and Vanderbilt Law School, which the two law schools had filed in support of Gluzman during his litigation against the Board. Previously, based on the Board’s former interpretation of Tennessee Supreme Court Rule 7 § 7.01, lawyers “from the vast majority of countries around the world” were forever prohibited from taking the Tennessee bar exam regardless of their ability or qualifications, since only a handful of jurisdictions follow the American model of separate undergraduate and legal degrees. As a result of the Court’s amendments, however, foreign attorneys are now eligible to take the Tennessee bar exam if they satisfy either of the following two criteria:
First, foreign lawyers can take the bar exam if an approved credential evaluation service determines that their foreign education was “substantially equivalent” to an American legal education. In evaluating an applicant’s foreign education, approved credential services will focus primarily on the scope of the applicant’s curriculum, whether an applicant received instruction in common law, and the number credit hours that applicants completed in their home countries. Thereafter, if the evaluation service determines that an applicant’s education was substantially equivalent to an American legal education, the applicant will be permitted to take the Tennessee bar exam. During Gluzman’s case, the Board formally conceded that notwithstanding its prior interpretation of the rule, this standard should not be construed as requiring separate undergraduate and legal degrees.
Second, foreign lawyers who have actively practiced law “for at least five of the eight years prior to applying to take the Tennessee bar” are eligible to take the Tennessee bar exam if they obtain either an “LL.M. Degree from a law school that is accredited by the ABA” or an LL.M. degree from a Tennessee law school approved by the Tennessee Supreme Court. Thus, obtaining an LL.M. degree—which is essentially a master’s degree in American law—can “cure” a defect in an applicant’s foreign education, thereby allowing the applicant to sit for the Tennessee bar exam after graduating.
Critically, however, all applicants must also pass the Tennessee bar exam before they will be able to practice law in Tennessee. This, of course, is no easy feat, especially given the number of foreign attorneys who would be taking the exam in their second language. Even for many American-educated students, the bar exam often proves insurmountable. For example, over the past few years, the failure rate among Nashville School of Law graduates has consistently hovered around 70%.
Taken together, the Court’s reforms should be universally applauded. Ensuring that Tennessee’s businesses have access to high quality international lawyers is critical to several of the state’s leading industries, from agriculture to automobile manufacturing to intellectual property to any number of additional sectors in between. As such, attracting foreign legal talent—which is currently concentrated in jurisdictions like New York, Texas, California—will quickly benefit both Tennessee’s businesses and consumers alike.
Selected news coverage about the case is available at the following links:
Nashville, Tennessee—In an order issued earlier this morning, Calvin Bryant, a former college student and beloved Hillsboro High School football star who received a 17-year mandatory minimum sentence for a first-time, non-violent drug offense, was denied sentencing relief by Criminal Court Judge Steve Dozier. The injustice of Mr. Bryant’s sentence garnered substantial local and national media attention, in part because his first-time, non-violent drug offense landed him a punishment that was more severe than the sentence that he would have received had he committed a violent crime like Rape or Second Degree murder. Mr. Bryant—who has already served a decade in prison—had also received an outpouring of support from national advocacy groups and elected officials across the political spectrum. Judge Dozier’s order denying him relief is accessible here.
“[I]n certain situations, such as with the Petitioner, a strict interpretation and enforcement of the Act can lead to sentences that courts and some members of the community would be hard-pressed to describe as fair. This is especially true in Davidson County, where much of the county, and especially those areas with a higher concentration of minority populations, falls within the ambit of the Act,” the Court wrote in its Order. However, “while the Court recognizes the Petitioner’s contention that his sentence is severe, the Court is of the opinion that the sentence is not so unjust as to give rise to an inference of gross disproportionality. Thus, the Court must find the Petitioner’s sentence is constitutional,” the Order reads.
“While we respect the Court’s opinion, the fact that Tennessee law punishes first-time, non-violent drug sales between adults more harshly than violent crimes like rape and murder cannot be justified under any rational sentencing scheme,” said Daniel Horwitz, Bryant’s attorney. “We continue to believe that Mr. Bryant’s mandatory minimum sentence is grossly disproportionate based on applicable precedent, and I have every expectation that this opinion will ultimately be overturned.”
The Court’s order also expressly encourages Mr. Bryant and his many supporters to seek clemency from the Governor, which he will do while his appeal is pending. “In order to secure Mr. Bryant’s early release from his grossly excessive sentence, I intend to petition Governor Haslam to commute Mr. Bryant’s first-time, non-violent drug offense to the “lesser” offense of rape,” Horwitz stated.
This morning’s front-page Tennessean story features a blockbuster scoop from Joey Garrison outlining Metro’s scheme to circumvent public records law by running hospital consulting services through Metro Legal Director Jon Cooper. Garrison’s report details a questionable arrangement between Nashville Mayor Megan Barry’s Administration and “volunteer” hospital consultant Kevin Crumbo, an accountant who specializes in corporate restructuring. According to Garrison, since 2016, Crumbo has provided “hundreds, if not thousands” of hours of “unpaid” consulting services to Metro in furtherance of the Mayor’s recently abandoned efforts to shutter inpatient care at Nashville General, the city’s longstanding safety-net hospital.
Beyond basic questions like what Crumbo—whose accounting firm has a business relationship with Metro—expected to receive in return for his thousands of hours in “free” consulting services, the whiff of scandal arises from the fact that:
“Details of Crumbo’s findings and recommendations about Nashville General remain unclear because his interactions with the city have been kept secret. Despite requests from The Tennessean, Metro won’t release any correspondence Crumbo had with the city.”
The supposed justification for denying the Tennessean’s public records requests is clearly set forth in the article. According to the Barry Administration, Crumbo “reports directly to the Metro law director.” As a result, “city officials cite attorney-client privilege” as a basis for denying the paper access to Crumbo’s reports. For reasons that are readily apparent from Garrison’s article alone, however, Metro’s privilege claim is a sham, and the city is legally obligated to turn over the records that they have thus far insisted upon keeping secret.
To begin, it should go without saying that the government cannot circumvent applicable public records law by running non-legal matters through its legal department and then claiming attorney-client privilege. The Tennessee Supreme Court has expressly held that such a scheme would represent a gross “misuse of [the attorney-client privilege] exception in order to circumvent the scope” of Tennessee’s transparency statutes, and that “any attorney who participates, or allows himself to be used in a manner that would facilitate such a violation, would be in direct violation of the Code of Professional Responsibility and subject to appropriate disciplinary measures.”[1]
Whether the Barry Administration’s privilege claim holds water is subject to a fact-dependent inquiry. As this author explained in a recent law review article, “[a]s a general matter, all governmental records in Tennessee are considered public records under the Tennessee Public Records Act unless the records are specifically exempt from disclosure by law.”[2] Significantly, both the attorney-client privilege and the related work-product doctrine provide such exemptions.[3]
Notably, though, the Tennessee Court of Appeals has cautioned that “[t]he attorney-client privilege is not absolute, nor does it cover all communications between a client and his or her attorney.”[4] Instead, the attorney-client privilege is limited to bona fide relationships between attorneys and their clients regarding actual legal matters. To be protected by the attorney-client privilege, Tennessee law specifically requires that:
“(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.”[5]
Based on Garrison’s report, Metro’s privilege claim does not—as Justice Kagan might put it—pass “the laugh test.”[6] In this instance, there are several independent and glaringly obvious problems with the claim, which likely will not last through the week.
First, it is difficult to imagine how Metro Legal Director Jon Cooper could have been “acting as a lawyer” with respect to his receipt of Crumbo’s hospital consulting reports, or how the reports could even theoretically be construed as having been provided for the purpose of securing legal services. We know this, because Garrison specifically quotes the Barry Administration as saying that Crumbo’s reports helped it “identify[ the] ‘financial and budgetary risks’ the hospital poses to the city.”
Rejecting a privilege claim in a similar case, Tennessee’s Court of Appeals held that “[u]nder our exercise of review, the correspondence that is the subject of this litigation does not contain any information of a confidential or secret nature.”[7] “It cannot be said that as a general rule, [attorney-client privilege] applies to all documents written to an attorney or signed by an attorney,” the court noted. “The Rule cannot have such a blanket application.”
Second, because the attorney-client privilege is (unsurprisingly) restricted to communications between attorneys and their clients, the privilege is waived when communications are disclosed to third parties.[8] In this instance, we can also be quite certain that Crumbo’s consulting advice was not limited to Jon Cooper, because the Barry Administration has candidly acknowledged as much. “Barry’s administration has credited Crumbo . . . as key in helping Metro explore ways to improve the hospital’s financial stability,” Garrison’s story reads. “[Crumbo’s] advice led Barry in 2016 to expand the hospital authority board from seven to 11 members,” it adds. “[Representatives] from the hospital were called into a meeting in September by the mayor and Crumbo,” it explains further.
Plainly, then, Crumbo’s communications were not restricted to legal communications between him and the Metro Legal Director. Instead, to the extent that the claim that Crumbo “report[ed] directly to the Metro law director” can even be believed, Crumbo’s reports appear to have been run through the legal department and then given directly to non-lawyer members of Megan Barry’s Administration—including to the Mayor herself.
It is likely, however, that Director Cooper actually intended to invoke the broader work-product doctrine as a basis for withholding the reports at issue, rather than the attorney-client privilege, which quite clearly does not apply. “The [work-product] doctrine, which is not a privilege, permits an attorney ‘to assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.’”[9]
As a general matter, the work-product doctrine permits attorneys wide latitude to hire experts and assemble information in advance of potential litigation. As the Court of Appeals has explained, “[t]he policy underlying the doctrine is that lawyers preparing for litigation should be permitted to assemble information, to separate the relevant facts from the irrelevant, and to use the relevant facts to plan and prepare their strategy without undue and needless interference.”[10] “In order to qualify as work product,” however, “the party seeking protection must establish the following three elements: (1) that the material sought is tangible, (2) that the documents were prepared in anticipation of litigation or trial, and (3) that the documents were prepared by or for legal counsel.”[11]
Unfortunately for the Barry Administration, the work-product doctrine does not apply here, either. For one thing, identifying “financial and budgetary risks” regarding a decidedly non-legal matter places Crumbo’s reports well outside the ambit of the doctrine, which is necessarily limited to documents “prepared in anticipation of litigation or trial.” For another, the work-product doctrine is similarly subject to waiver, and acknowledging the existence of a consultant’s report and discussing its contents with third parties unmistakably waives its protection. As the Court of Appeals explained in a similar case:
“By stating that this report existed and its findings supported the feasibility of the acquisition, the City has, in effect, selectively used the reports in a public relations offensive to convince the City Council and the general public that the acquisition was both economically feasible and beneficial. . . . [A] party may not use a work product to publicly further its cause offensively as a sword, and then assert the benefit of privilege as a shield. Accordingly, we hold that the City has waived the confidentiality of these documents.”[12]
Here, the Barry Administration has publicly disclosed that Crumbo’s reports “assisted Metro in identifying ‘financial and budgetary risks’ the hospital poses to the city.’” In Garrison’s story, Metro Councilmember Tanaka Vercher—who chairs the Metro Council Budget and Finance Committee—also criticizes the contents of Crumbo’s publicly-withheld reports, stating that they “only looked at the ‘bottom-line numbers’ when a ‘holistic’ review is needed.” Further, to support the Administration’s public relations efforts, Director Cooper has “characterized the criticism of Crumbo’s work as inaccurate.” Despite disclosing their subject matter and defending their contents, however (which third parties appear to be aware of), Barry’s Administration nonetheless refuses to disclose Crumbo’s reports to the public—thereby using the privilege, as the Court of Appeals has characterized it, improperly as both a “sword” and “shield.”
In sum: the Barry Administration’s privilege claims are laughable. The attorney-client privilege and work product doctrines cannot be used to shield non-legal government documents from disclosure under applicable public records law. Further, even if they applied, their protections are waived when privileged communications are disclosed to third parties or to shape a media narrative. Metro’s illicit scheme to skirt applicable public records law by having a hospital consultant report directly to the Metro Legal Director is, quite simply, a sham to avoid its obligations under the Tennessee Public Records Act. Neither the press nor the public should stand for it.
[2] Daniel A. Horwitz, Closing the Crime Victims Coverage Gap: Protecting Victims’ Private Records from Public Disclosure Following Tennessean v. Metro, 11 Tenn. J.L. & Pol’y 129, 131 (2016) (citing Memphis Pub. Co. v. City of Memphis, 871 S.W.2d 681, 684 (Tenn. 1994) (noting that section 10-7-505(d) of the Tennessee Code “expressly sets up a presumption of openness to records of governmental entities” and that “the burden is placed on the governmental agency to justify nondisclosure of the records”)).
[3]The Tennessean v. Tennessee Dep’t of Pers., No. M2005-02578-COA-R3CV, 2007 WL 1241337, at *9 (Tenn. Ct. App. Apr. 27, 2007) (holding that the attorney-client privilege applies “with equal force to a government official who seeks legal advice in the performance of his duties,” and holding further that the work-product doctrine similarly exempts records from disclosure under the Tennessee Public Records Act).
[5]Armouth Int’l, Inc. v. Dollar Gen. Corp., No. 3:14-0567, 2015 WL 6696367, at *2 (M.D. Tenn. Nov. 2, 2015).
[6]Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2239 (2015).
[7]Coats v. Smyrna/Rutherford Cty. Airport Auth., No. M2000-00234-COA-R3CV, 2001 WL 1589117, at *7 (Tenn. Ct. App. Dec. 13, 2001)
[8]Bryan v. State, 848 S.W.2d 72, 80 (Tenn. Crim. App. 1992) (“the presence of a third party at the time of the communication or the client’s expectation that the substance of the communication is to be disclosed to others does not bring the privilege into play.”). See also Culbertson v. Culbertson, 393 S.W.3d 678, 684 (Tenn. Ct. App. 2012).
[9]State ex rel. Flowers v. Tennessee Trucking Ass’n Self Ins. Grp. Tr., 209 S.W.3d 602, 616 (Tenn. Ct. App. 2006)
*Note: This is a free informational resource about expungement law in Tennessee. It is not intended to be construed as legal advice. If you are seeking to hire an attorney to expunge your record for you, you can click here instead.*
The most common legal question I receive has nothing to do with constitutional law, appellate litigation, or other staples of my standard law practice. Instead, on an almost daily basis, somebody wants to know whether they—or their son, daughter, husband, wife, mother, father, brother, or sister—can get their criminal record expunged.
Usually, the reason for the inquiry is that someone is having trouble getting a job, renting an apartment, or is experiencing some other collateral consequence of their public criminal record. It’s a huge problem in Nashville, because criminal records are unusually accessible via this public search tool. After I filed this case back in 2015, the number of inquiries that I received about expungement eligibility was so large that I created a free FAQ on expungement law in an attempt to provide some much-needed public information on the issue. Unsurprisingly, it hasn’t been enough.
Because the criminal justice system has metastasized to the point where it is the default tool that society uses to address even the most harmless wrongdoing, between 2000 and 2012, more than 128,000 people in Nashville alone—representing roughly a quarter of the city—acquired 350,000 separate criminal records for charges that were ultimately dismissed outright. In a sensible world, the magnitude of that figure would be staggering. As far as the American criminal justice system is concerned, though, it’s fairly standard. Across the United States, approximately 70 million adults have a criminal record of some kind, meaning that roughly a third of our eligible workforce is bogged down by a prior interaction with law enforcement.
Fortunately, Tennessee is better than many other states in enabling people to expunge their criminal records and move on with their lives, especially when it comes to dismissed and non-violent offenses. Recent changes to Tennessee’s expungement statute have also expanded the number of people who are able to take advantage of the many benefits that expungement offers. Accordingly, this post is intended to be a current—but non-exhaustive—summary of the most common scenarios in which a person is eligible to have their criminal record expunged in Tennessee. It is not, however, intended to be a substitute for case-specific legal advice. If you are looking to hire a professional to evaluate your expungement eligibility or expunge your record for you, then you should contact a lawyer who provides the service. The attorney who represented you after your arrest may handle it for you for free. Other attorneys may quote you a small fortune to handle your expungement. For my part, I charge $100 to conduct expungement eligibility evaluations in Nashville and between $100 and $350 per charge to prepare and file your paperwork, depending on the type of charge at issue. As always, if you are able to do so, hiring an attorney is a better idea than attempting to practice law yourself.
With that disclaimer in mind, here are the four most common scenarios in which a person will be able to expunge their record in Tennessee—a formal process that has the legal effect of “restor[ing] the person to the position he or she occupied prior to the arrest or charge.”[1]
1. Dismissed and Retired Charges: Far and away the most common charges that are eligible to be expunged under Tennessee law are those that were either dismissed or retired. Any other charge that did not result in a conviction—such as a nolle prosequi or a not guilty verdict—is eligible to be expunged as well. Tennessee law also provides that such charges are eligible to be expunged without payment of an expungement fee. If you were assessed court costs, however, then those costs must be paid or waived by a judge before the charge can be expunged.
2. Diversions: Tennessee law has various forms of diversion. As a general rule, though, if you successfully completed a pretrial diversion program or a judicial diversion program, then you will be eligible to have your record expunged. There is, however, a $280.00 fee to expunge charges that were resolved via a diversion program.
3. Non-Violent Convictions: Many non-violent convictions are eligible to be expunged under Tennessee law. As long as you have no more than two non-violent convictions on your record (excluding traffic offenses, like driving on a suspended license), your non-violent conviction is probably eligible to be expunged five years after your sentence expired.
If you were convicted of a felony, then you may be eligible for expungement if your charge appears on this list. Alternatively, if you were convicted of a misdemeanor, then you may be eligible for expungement if your charge does not appear on this list. Notably, despite a lot of advertising from DUI lawyers intimating that DUI charges will stay on your record forever if you don’t hire them to acquit you, DUI charges that were pleaded down to the reduced charge of either Reckless Driving or Reckless Endangerment are eligible to be expunged. There is also a mandatory $280.00 fee to expunge convictions in Tennessee, which will have to be paid in addition to any outstanding court costs before your charge can be expunged.
Where convictions are concerned, however, there are both exceptions and grey areas. For example, a person who has three total convictions for simple possession of marijuana can sometimes get all three convictions expunged due to a drafting error in Tennessee’s expungement statute. Conversely, people who are otherwise eligible to expunge a conviction may be denied an expungement if the District Attorney opposes it. If you are wondering whether your situation falls within a potential exception, then you should contact an attorney to evaluate your eligibility for you.
4. “Partial” Expungements: In many cases, a person is charged with several offenses in the same indictment, but has one or more charges dismissed at the end of the case. Under these circumstances, a person can have any charge in their indictment for which they were not convicted expunged from electronic databases. This is known as a “partial” expungement, and the electronic version of it is new.
For most people, expungement is a valuable and important tool, because a person’s criminal record is no longer accessible to prospective employers, and “persons whose records have been expunged may properly decline to reveal or acknowledge the existence of the charge.”[2]For some people, however, expungement may be harmful, or may require additional precautions like certification of a person’s expungement order. Thus, there is no substitute for contacting a licensed attorney to discuss your own individual situation with you. If you are seeking to hire an attorney to expunge your record for you, you are welcome to click here instead.
In a decision issued earlier this morning, the U.S. Court of Appeals for the Sixth Circuit formally upheld Tennesseans’ 2014 vote to ratify Amendment 1 to the Tennessee Constitution. The amendment provided that:
“Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.”
Following the referendum election—which Tennesseans supported by a margin of 53%-47% in a contest involving nearly 1.4 million voters—opponents of the amendment challenged the results of the election in federal court, arguing that state officials should have disqualified the votes of anyone who declined to vote in the Governor’s race. The challengers’ claim was premised upon a reading of an inartfully drafted provision of Tennessee’s Constitution, which states that:
“[I]f the people shall approve and ratify such amendment or amendments by a
majority of all the citizens of the State voting for Governor, voting in their favor,
such amendment or amendments shall become a part of this Constitution.”
Although initially accepted by the now-vacated decision of the District Court, the challengers’ reading of the above provision had several critical problems. Among them, the novel interpretation that they demanded had never previously been applied in any referendum election in Tennessee’s history. Most importantly, however, as the Yes On 1 Committee argued in an amicus brief filed in the Sixth Circuit, the challengers’ position would have unconstitutionally caused “the votes of tens of thousands of qualified voters—as many as eighty thousand, by some estimates—[to] be subject to wholesale invalidation for no other reason than that the voters who cast them did not support any candidate for governor.” The same deficiency was noted in an editorial penned by Daniel Horwitz, Yes On 1’s eventual election counsel, in a 2014 op ed published in the Tennessean.
The Sixth Circuit’s opinion held that for purposes of the federal lawsuit, a separate state court decision that had previously determined that all votes in a referendum election must be counted regardless of whether or not a voter had voted in the Governor’s race was entitled to preclusive effect. In a footnote, however, the Sixth Circuit also explained that it would have reached the same conclusion independently, noting that:
“[P]laintiffs’ preferred reading of the text of Article XI, Section 3, while not implausible on its face, would be patently unreasonable in effect. Not only would their proposed construction—requiring a voter to vote for governor as a prerequisite to casting a valid vote on Amendment 1—contravene longstanding practice and pre-election instructions published to the public, and effectively nullify the votes of thousands of citizens; it would also conflict with another provision of the Tennessee Constitution. Article IV, Section 1 prohibits the imposition of any additional qualification to vote, beyond age, U.S. citizenship, state residency, and registration. To adopt plaintiffs’ proposed interpretation would be to run afoul of our obligation, in construing state law, “to avoid constitutional difficulty” when fairly possible.”
“The issues involved in this lawsuit had absolutely nothing to do with abortion,” said Daniel Horwitz, election counsel for the Yes On 1 Campaign. “Instead, this was a direct challenge to pro-life voters’ right to vote itself, and fortunately, the right to vote won. Anybody who cares about the integrity of the democratic process should be both gratified and reassured by this outcome.”
The Sixth Circuit’s decision in the case is available here.
