The Tennessee Supreme Court issued two rulings today. In the first case, the court ruled that a lawsuit against Life Care Center in Tullahoma may proceed, despite the plaintiff's death. The case involves an elderly woman, Annie Jones, who was on camera while being bathed by a nursing home employee who also was conversing on a personal video call. Jones’s daughter filed a lawsuit alleging the nursing home committed the tort of intrusion upon seclusion, a privacy violation. Life Care argued that the suit should end due to Jones’s death. The court disagreed, stating that most tort lawsuits, including privacy claims, can continue even after the plaintiff's death. In the second ruling, the court held that the state’s collateral estoppel doctrine prevents a plaintiff from relitigating the issue of class certification in a refiled case. In this case, plaintiffs sought to certify a class action over TennCare’s $50 cap on non-emergency services. The court ruled that because the issue of class certification had already been denied in an earlier case, it could not be revisited.

On April 9, the Tennessee Supreme Court rejected a motion from Davidson County lawyer Michael Lloyd Freeman to appeal a Board of Professional Responsibility decision to revoke his probation. On June 21, 2021, the Supreme Court suspended Freeman for three years, with 90 days to be served on active suspension and the remainder on probation. During the active suspension, complaints were lodged again him. After a hearing, the Board of Professional Responsibility determined that probation should be revoked, and Freeman be required to serve the remainder of the time on active suspension. It informed Freeman that he had 60 days to appeal the decision to the circuit or chancery court. The Supreme Court found that information to be incorrect. Under the rules, a hearing panel’s order on a petition to revoke probation is to be treated as a decree of the trial court. Thus, any appeal is to be made to the Supreme Court within 30 days. Freeman appealed 37 days after the hearing panel’s decision. The trial court, recognizing that it lacked jurisdiction, transferred the appeal to the Supreme Court. The Supreme Court dismissed the appeal for timeliness but noted that Freeman could file a motion requesting entry of a corrected judgment, which, if granted, would begin a new 30-day time frame for appealing.

The Tennessee Supreme Court will hear two cases — Alan C. Cartwright v. Thomason Hendrix PC, et al. and Alice Cartwright Garner et al. v. Thomason, Hendrix, Harvey, Johnson & Mitchell PLLC, et al. — during its April 9 docket in Jackson. The two cases are related actions involving similar legal issues. The cases will be heard at the Tennessee Supreme Court, 6 US-45 Bypass, Jackson 38301, beginning at 9 a.m. CDT and livestreamed to the TNCourts YouTube page. Read more about the cases in a press release from the Administrative Office of the Courts.

The Tennessee Supreme Court has held that Tennessee law does not prohibit a private employer from firing an employee for exercising the right to petition the government. In 2021, BlueCross BlueShield of Tennessee directed all employees to receive the COVID vaccine. One employee, Heather Smith, chose not to receive the vaccine. When Smith wrote to members of the state legislature to express her concern with the mandate, the company warned that the communication violated policy. When she sent a second email, the company terminated her. Smith then filed suit alleging that the company violated her right to petition the government under the Tennessee Constitution. The trial court dismissed the suit, but the Court of Appeals reversed. The Tennessee Supreme Court found that the state constitution’s protection of the right is enforceable only against the government, not private actors. Justice Sarah Campbell concurred but wrote a separate opinion. Read more in a press release or read the opinions.

Following the Lee administration's release of its amended budget, which includes funding for the new plan for indigent representation in Tennessee, the General Assembly now will move forward with House and Senate consideration. The amended budget, introduced as HB1409/SB1431, has been referred to the House Finance, Ways and Means Subcommittee and the Senate Finance, Ways and Means Committee. In the House, the subcommittee must first consider the bill before sending it to the full Finance, Ways and Means Committee and then on to the floor. In the Senate, the committee must consider the bill before forwarding it the floor. Amendments at each step of the process may be introduced. The legislature’s one constitutionally required charge is to pass a balanced budget, which is one of the last things it will do before adjourning for the year. Learn more about the plan and indigent representation in Tennessee.

Following the Lee administration's release of its amended budget, which includes funding for the new plan for indigent representation in Tennessee, the TBA will continue to work closely with the Tennessee Supreme Court and the Tennessee Administrative Office of the Courts (AOC) on the new plan, including tracking its progress through the legislative process. The TBA is grateful for the support and advocacy of the legal community on this issue, and encourages lawyers to stay up to date on the work of TBA's Government Affairs team and share their own experiences with the indigent representation system. Learn more about the plan and indigent representation in Tennessee.

The indigent representation proposal from the Tennessee Administrative Office of the Courts (AOC) on behalf of the Tennessee Supreme Court is expected to provide a range of benefits. For attorneys, that means getting paid on a more regular basis and having access to training and mentorship opportunities. For judges, that means not having to spend time finding attorneys to take cases. For clients, the plan is expected to lead to less delays for children needing guardian ad litem services and in adoption cases. And for the legal system, the plan is expected to increase the number of attorneys willing to accept appointments and provide new safeguards to protect against misuse of indigency determinations. The TBA applauds the collaborative efforts of the Supreme Court, the AOC and stakeholders in developing and advocating for a new plan for the future. Learn more about the plan and indigent representation in Tennessee.

TBA President Ed Lanquist Jr. was joined by Administrative Office of the Courts (AOC) General Counsel John Coke and Indigent Services Team Lead Attorney Joe Byrd for a conversation about the indigent representation proposal from the AOC on behalf of the Tennessee Supreme Court. The proposal includes a new structure for handling civil appointments and criminal conflicts for clients who are indigent. Under the plan, the Tennessee Supreme Court would establish an “Office of Indigent Conflicts and Civil Counsel,” with oversight by an “Indigent Representation Commission.” The interview directly addresses questions posed by Tennessee attorneys, including those who currently take appointed cases. Among the topics discussed are how, if funded, the program would be implemented and the opportunity to work closely with stakeholders, including local attorneys. Learn more about the plan and indigent representation in Tennessee and watch for our ongoing coverage of this issue.

The indigent representation proposal from the Tennessee Administrative Office of the Courts (AOC) on behalf of the Tennessee Supreme Court addresses a number of challenges in the state's current system. One benefit of the proposal would be eliminating the use of court time to appoint attorneys for these cases. Under the plan, judges would be able to rely on the proposed "Office of Indigent Conflicts and Civil Counsel," which would assume responsibility for appointing lawyers in child welfare cases and criminal cases when the public defender has a conflict. In addition, the proposed "Indigent Representation Commission" would be charged with reviewing, developing and, where possible, implementing procedures to improve accountability and prevent misuse of the system. Learn more about the plan and indigent representation in Tennessee. 

The indigent representation proposal from the Tennessee Administrative Office of the Courts (AOC) on behalf of the Tennessee Supreme Court addresses a number of challenges in the current system. This includes using strategic compensation structures for employing and contracting with attorneys. Under the plan, the “Indigent Representation Commission" may use a combination of retainer, flat fee and hourly or other contracts, offering lawyers more competitive and predictable compensation. Among the advantages of this approach are the elimination of caps and the implementation of intermittent payments. Learn more about the plan and indigent representation in Tennessee.