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TBA Law Blog

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TSC Vacates BPR Formal Ethics Opinion on Disclosure

Posted by: Katharine Heriges on Aug 23, 2019
In a recently released opinion, the Tennessee Supreme Court vacated the Tennessee Board of Professional Responsibility’s Formal Ethics Opinion 2017-F-163, first released in March 2018, which provided guidance to prosecutors about ethical duties under Rule 3.8(d) — the statute covering a prosecutor’s ethical duties to disclose evidence or information tending to negate the guilt of the accused or to mitigate the offense. On January 15, the Tennessee District Attorneys General Conference filed a petition to vacate the opinion. In its unanimous opinion, the Supreme Court considered other states’ interpretations of prosecutors’ ethical rules and ultimately agreed with the position that a prosecutor’s ethical duties should be coextensive with the prosecutor’s legal and constitutional obligations. Read the opinion, authored by Chief Justice Jeff Bivins.

TSC Upholds Trial Court Decision Excluding Videotape of Defendant's Post-Polygraph Statements

Posted by: Katharine Heriges on Aug 22, 2019
The Tennessee Supreme Court has held that a trial court acted within its discretion in excluding from trial a defendant’s videotaped statements given in a post-polygraph interview. In so doing, the court reversed the decision of the Court of Criminal Appeals. In reaching this decision, the court noted that a trial court has broad discretion in determining whether particular evidence should be admitted at trial. As a result, as long as the trial court’s action was an objectively reasonable decision, an appellate court should not substitute its judgment for that of the trial court. Instead, it should uphold that decision, even if the appellate court would have reached a different result. State of Tennessee v. Quintis McCaleb was authored by Chief Justice Jeff Bivins.

Supreme Court Considers Changes to Rule 25

Posted by: Katharine Heriges on Aug 16, 2019
The Tennessee Supreme Court is considering amending Rule 25, which concerns the manners in which the Tennessee Lawyers’ Fund for Client Protection (TLFCP) board members are allowed to officially communicate. The court seeks public comment on the proposed changes, which should be submitted by Sept. 16. Comments may be submitted to James M. Hivner, Clerk, Re: Tenn. Sup. Ct. R. 25, section 5.03, Tennessee Appellate Courts,100 Supreme Court Building, 401 7th Avenue North, Nashville, TN 37219-1407, or email to appellatecourtclerk@tncourts.gov.

Supreme Court Seeks Comment on Proposed Amendments

Posted by: Katharine Heriges on Aug 13, 2019
The Tennessee Supreme Court is seeking written comments concerning recommended amendments from the Advisory Commission on the Rules of Practice and Procedure, which met last month to complete its 2018-2019 term. The commission made recommendations to Rule 5 of the Rules of Civil Procedure, Rule 26, Rule 33 and Rule 37. Written comments may either be submitted by email to appellatecourtclerk@tncourts.gov or by mail addressed to James Hivner, Clerk, Re: 2020 Rules Package, 100 Supreme Court Building 401 7th Avenue North Nashville, TN 37219-1407. The deadline for submissions is Dec. 13.

Tennessee Supreme Court Abandons Doctrine of Abatement Ab Initio

Posted by: Katharine Heriges on Aug 8, 2019
The Tennessee Supreme Court yesterday ruled unanimously that the Court of Criminal Appeals should no longer vacate convictions when criminal defendants die during an appeal guaranteed by law, known as an appeal as of right from the conviction. In State v. Mutory, the court unanimously concluded that, due to changes in the public policy of Tennessee in the arena of victims’ rights, the doctrine of abatement ab initio should be abandoned. The court majority referred the issue to the Advisory Commission on the Rules of Practice and Procedure for further study and, if appropriate, for a recommendation of a procedure to replace the doctrine of abatement ab initio to apply when a defendant dies during the pendency of an appeal as of right from a conviction.  

TSC Rules on Validity of Amendment to Indictment Based on Actions of Counsel

Posted by: Katharine Heriges on Aug 6, 2019
The Tennessee Supreme Court has reversed a Court of Criminal Appeals’ decision construing the actions of defense counsel in a criminal case to have caused an amendment to the indictment, thus resulting in a criminal conviction for an offense that was not an enumerated lesser-included offense of the indicted charge. The Tennessee Rule of Criminal Procedure 7(b) sets forth the manner in which an indictment can be amended after jeopardy has attached. For an indictment to be amended, “an oral or written motion to amend (the indictment) should be made, and the defendant’s oral or written consent to the motion must be clear from the record.” On the other hand, an “effective amendment” to an indictment occurs when a defendant actively seeks consideration of an otherwise invalid lesser offense. In a jury trial, mere acquiescence in a trial court’s instructing the jury on an inapplicable lesser-included offense is insufficient to cause an effective amendment to the indictment. In its unanimous opinion authored by Justice Roger Page, the court made clear that these same principles apply in a bench trial as well as in a jury trial. 

TSC Reverses Lower Courts Decisions Striking Down Public Safety Act As Unconstitutional

Posted by: Katharine Heriges on Jul 22, 2019
In a recently released opinion, the Tennessee Supreme Court held that a trial court should not have considered the constitutionality of the Public Safety Act prior to entering two defendants’ guilty pleas. In State of Tennessee v. A.B. Price, Jr. and Victor Sims, the court remanded the matter to the trial court for entry of amended judgments compliant with the Public Safety Act, a law that had just gone into effect at the time of the cases of the two unrelated defendants. Chief Justice Jeff Bivins authored the court's opinion.

TSC Finds Case With Conflicting Evidence Cannot Be Decided Without Trial

Posted by: Katharine Heriges on Jul 22, 2019
In TWB Architects, Inc. v. The Braxton, LLC, the Tennessee Supreme Court found that a case with conflicting evidence can't be decided without a trial, sending the contract dispute back to a lower court and reversing an award of summary judgment. In a unanimous opinion authored by Justice Sharon G. Lee, the court held that there were disputed questions of fact about whether the parties involved, TWB Architects and The Braxton, intended a novation when they entered into an agreement. The court held that summary judgment was inappropriate because this contract dispute cannot not be decided as a matter of law, and the trial court needs to hear witness testimony, resolve credibility issues, and then decide what the parties intended.

TSC Adopts Amended Rule 53 to Address Error in Original Version

Posted by: Katharine Heriges on Jul 15, 2019
The Tennessee Supreme Court has adopted amendments to a new rule in order to address a typographical error published in the original version. Rule 53, which was originally adopted on April 1 of this year, addresses Collaborative Family Law. Read the July 15 order here.

TSC Upholds Chancery Court's Disbarment of Knox Attorney

Posted by: Katharine Heriges on Jul 2, 2019
The Tennessee Supreme Court today upheld a Chancery Court decision that disbarred Knoxville attorney Loring Edwin Justice. Justice’s disbarment stemmed from a federal personal injury lawsuit. He falsely claimed work done by a paralegal as his own, he falsely claimed that he had kept contemporaneous time records on the case, and he requested “grossly exaggerated and unreasonable” attorney’s fees. The Board of Professional Responsibility suspended Justice for a year, but the Chancery Court modified it to a disbarment on appeal.
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