While extremely unpopular, Tennessee County Mayors, (and many City Mayors), have the power, under Tenn. Code Ann. sec. 58-2-110, to order masks be worn in public settings during a time of pandemic emergency. Tennessee’s Governor Bill Lee has declared the COVID-19 pandemic an emergency under Tenn. Code Ann. sec. 58-2-107. For citizens, this means that criminal citations and arrests are possible for violating any ordinance requiring masks be worn in public. Nashville has recently began strictly enforcing their version of this policy. For public institutes such as natural gas utilities, these same emergency mandates bar the utility from disconnecting a person’s home utilities for non-payment of fees due during the time of emergency. See e.g., In Re: Emergency Petition of the Consumer Advocate Unit of the Financial Division of the Office of the Tennessee Attorney General, 2020 WL 4207282 (Tenn. Pub. Serv. Comm. 7/20/2020).
The U.S. Supreme Court’s decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), (decided on July 9, 2020), saw that Court uphold a 200 year old treaty between the United States and Creek Indians that traces back to Andrew Jackson and the Trail of Tears. As a result of the McGirt decision, most of Eastern Oklahoma, including Tulsa, is now considered part of Indian Country. Contracts, land rights, and criminal cases in Eastern Oklahoma must be viewed, at least partially, through the scope of Federal Indian Law. By way of example, between July 9, 2020 and August 9, 2020, over 1000 criminal convictions by Oklahoma state courts have been overturned as a direct result of McGirt because state courts do not have subject matter jurisdiction over criminal prosecutions of defendants on Indian lands. Other dormant, but valid, treaties can be expected to again see future honor as a result of McGirt. If the area of the country you live in was once Indian territory, (e.g., Chattanooga, Tennessee), look to see if there may be an old Indian treaty that may impact your case. If you wish to discuss a legal matter, such as how Native American bloodlines may impact a pending child custody case in Tennessee, call attorney Gregory D. Smith, 931/647-1299 for a free consultation.
People mistakenly believe that an attorney-drafted will is expensive. If one looks around, they can probably find an attorney that will draft a “Simple Will Kit” for $100.00 or less. This price is comparable to commercial “Do It Yourself” wills. The difference is that an attorney-drafted simple will kit usually includes A} the Simple Will, B} a “Living Will,” and C} a Durable Power of Attorney. Commercial wills sell each of those items separately. For most estates under $1.8 million dollars, the Simple Will Kit is sufficient to cover the client’s needs. One can avoid the much more expensive Living Trust option, which has become popular in recent years. The big difference between having an attorney draft your will and purchasing the commercial kits is that the commercial kits are seldom state-specific. With an attorney-drafted will, the client can sit down with the attorney and ask questions and discuss options of how to reduce, or even avoid, probate. Many times, married couples will seek “Mirror Wills.” In Mirror Wills situations, the two wills state the same thing, except the spouses’ names are switched in each will. Therefore, I could take the Wife’s will and read the Husband’s will, merely by switching the names. When the Wife’s will says her name, I read it as if the Husband’s name appears. When the Husband’s name appears, I read the Wife’s name. Since the location of the spouses’ names are the only difference between the two wills, and making a second will with that one change takes only seconds on a computer, many attorneys will either reduce, or waive, the costs of the second Simple Will Kit if both are executed at the same time. The other benefit of an attorney-drafted will, over commercial “fill in the blank” wills, is that the attorney-drafted will reduces the chance a family member will claim the will is fake or coerced, because a third-party drafted the will. (Of course, one can retain an attorney to only draft a part of the Simple Will Kit, such as a Durable Power of Attorney). If you need a will, and live in the Montgomery County, Tennessee area, or wish to travel to Clarksville, Tennessee, call attorney Gregory D. Smith at 931/647-1299 for an appointment.
Attorneys still have the ability to contact inmates via Skype, Zoom, Face-time, or other video chats during the COVID-19 pandemic. Likewise, shut-ins at nursing homes can be contacted by attorneys because the legal profession is deemed an “essential service” by state and federal governments. Most of these contacts are actually easier for the attorney than a face-to-face visit because the attorney does not have to leave their office. The attorney instead merely sets up a video visit time with the nursing home, jail or prison and then uses a laptop computer or cell phone for the visit, telling the nursing home, jail or prison how long the visit is expected to take. For the inmates, these visits are confidential, so the attorney/client privilege is not violated. For shut-ins, it depends on the circumstances of the shut-in’s health or understanding. Recently, I’ve had incarcerated clients ask that I check on family members they have not spoken to recently because of COVID-19. I simply call the loved one, then send a note to the client on how the loved one is doing. Most attorneys will offer a similar courtesy, if asked. If you need an attorney, and your case is on appeal anywhere in Tennessee, or your civil or criminal case is in the Montgomery County, Tennessee area, call attorney Gregory D. Smith at 931/647-1299.
The COVID-19 pandemic may temporarily delay a lawsuit, but it does not stop a lawsuit. While courts may be closed for all but extraordinary or emergency circumstances, cases can still be filed, discovery continues, and mediation occurs. Be sure to check with your attorney because time deadlines may be running. Legal representation is one of the listed “essential services” that continue, even though most businesses are closed, so your attorney should be available, either in person, via Skype, or by phone. On April 22, 2020, I have the honor speaking to approximately 800 judges from across the U.S. (and in several other countries) about the judge’s ethical duty to move cases along during a pandemic as part of a National Judicial College country-wide podcast. If you wish to talk with an attorney about your case in the Montgomery County, Tennessee area, and you have not already retained a lawyer, call attorney Gregory D. Smith at 931/647-1299. #covid19 #lawyer #lawyers
Every person needs a Will. Some attorneys will try to push a client into establishing Living Trust, or a Revocable Living Trust, or an Irrevocable Living Trust. For most people, a Simple Will meets the needs of the vast majority of estates. A trust is generally only a necessity for estates of 2 million dollars or more. Millionaires need trusts. For the rest of the people in the world, a Simple Will will cover the needs of most people. Basic estate planning can avoid most estate issues merely by the eventual deceased directing how assets will be distributed after death while a person is living. There is no need to pay the added expense of a Trust, when a Simple Wills handles the same issue for considerably less expense. If you live in or around the Montgomery County, Tennessee area, feel free to set up a free Will consultation with the Law Firm of Gregory D. Smith at 931/647-1299.
A juvenile cases is a civil, not criminal proceeding. For practical purposes, the ramifications of a juvenile court adjudication of delinquency or unruly will not appear much different from an adult criminal conviction in the Minor’s immediate perception. Both carry potential probation and possible incarceration. Both can be a hinderance for future career decisions. The main difference is that a juvenile finding of delinquency or unruly is civil in nature, not criminal. Therefore, on job applications, if the application asks “Have you been convicted of a crime?” The answer is “No.” Since a juvenile case is not criminal in nature, a minor cannot be convicted of a crime in juvenile court. On the other hand, it is possible to transfer a juvenile proceeding to adult criminal court pursuant to Tenn. Code Ann. sec. 37-1-134. If a transfer is ordered, the minor, (age 17 years 364 days or less), suddenly becomes an adult for trial purposes. This procedure is usually reserved for major crimes, such as murder or armed robbery, or for the minor who just won’t quit coming before the juvenile court. A transfer to adult court is generally considered a “last ditch option.” While a juvenile proceeding is designed to rehabilitate the misguided minor, an adult criminal proceeding is designed to protect society and punish the criminal offender. Simply put, the whole concept of what a court is suppose to do with the defendant changes drastically from juvenile court to adult criminal court.
When a juvenile is facing court proceedings, especially significant criminal charges, one should have an experienced advocate on their side. Attorney Greg Smith is a former juvenile court referee, (a type of judge), and he wrote a reference book on Tennessee juvenile law that is used throughout Tennessee. If you have a case in Montgomery County, Tennessee or the surrounding area, call the Law Office of Gregory D. Smith, 931/647-1299 for a free consultation. Any juvenile court delinquency finding can see a minor in juvenile detention until their 19th birthday. A transferred juvenile case that is tried in adult court can carry significantly more time in jail or prison. Do not under-estimate the importance of legal representation in juvenile court.
Presenting an appeal is different from presenting a trial because an appellate record is a “closed record.” This means the appellate record is similar to a photograph. The trial is real-time and moving. The appellate record is a snapshot of a moment of that flowing concept of real-time. At trial, a party can present live evidence, explain their intent, and answer follow-up questions. On appeal, just like a photograph, time stops and time does not change an answer given. No new evidence is offered. Nobody gets to explain their answer after the trial ends. One must look to the photograph taken, (the appellate record), to determine the contents of the photograph or “record.” While one may wish to add or subtract from the photograph; the photograph (record) is already taken, developed, printed, and remains as taken. Appellate records usually include trial transcripts, pleadings and arguments of counsel. One must show, just reviewing what is in the appellate record, that the trial court committed reversible error.
To show “reversible error,” one must show a mistake was made at trial, and that mistake adversely impacted on the outcome of the case. Error, without impact, is called “harmless error” and will not get a decision overturned. The Appellant, (the person appealing), must show both error and adverse impact for appellate relief. This task is very different from the tactics used by lawyers at trial. One needs an experienced appellate attorney for this function. Greg Smith has presented hundreds of appeals over thirty years. If you wish to discuss your appeal, and you have a Tennessee, federal or military appeals case, you may call The Law Office of Gregory D. Smith at 931/647-1299. Initial consultations are free.
The first, and most important point, before one changes legal counsel, is to carefully consider if that move is actually in your best interest? Is the change being done out of anger, panic, or logic? No attorney can promise an outcome in court. The attorney you currently have knows your case, has been paid, and previously earned your trust. Can your concern be eased by simply sitting down with the attorney and discussing your concern? That may be worth a try before paying another attorney a second retainer to take over your case or proceeding “pro se.” (Latin for “on your own”). Likewise, an appeal is usually considered a separate case, so once a case is completed, you may seek other counsel for an appeal.
If you find that an attorney change is necessary, there are two ways to do it. First, you can personally tell your attorney “You’re Fired.” That option is self-explanatory. Second, you can hire another attorney, and then the newly retained attorney contacts the previous attorney for a “substitution of counsel.” These two procedures are fairly common and won’t be as stressful or offensive to the original attorney as one might expect. Changing counsel does not automatically waive any outstanding attorney fee owed to the original attorney or obligate new counsel to negotiate a return of fee from the original counsel. Most of the time, the new attorney stays out of that discussion.
In the case of appointed counsel, simply hiring an attorney usually ends an appointed attorney’s duty to represent a client. If an indigent criminal court defendant wants to fire their appointed counsel, but can’t afford to hire counsel, the defendant can instruct appointed counsel to file a motion to withdraw or send the court clerk a pro se motion or letter asking for a different attorney and stating why the change in counsel is necessary. The Court is not required to give new counsel for indigents simply because a defendant does not like the appointed attorney. Indigents do not get to pick who a Court appoints as the defendant’s attorney. That being said, courts frequently grant a first request for a different appointed attorney filed by an indigent defendant. Repeated requests for new appointed counsel are less frequently granted.
If you are in Tennessee and have questions about rules regarding changing attorneys, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith in the November, 2019 ABA Journal,(the national magazine of the American Bar Association), at http://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith .
The Indian Child Welfare Act, commonly called ICWA, can be found at 25 U.S.C. section 1901 et seq. ICWA applies to state juvenile court cases where a termination of parental rights or surrender of parental rights exist and either the child or one of the parents is associated with a federally recognized Native American Indian tribe. ICWA also applies to custody cases arising from a state initiated dependency and neglect case where a parent or child is associated with a federally recognized Native American Indian tribe. The third area where ICWA sometimes becomes an issue is state filed private adoption cases where at least one the parents giving up a child for adoption is associated with a federally recognized Native American Indian tribe. ICWA does not normally apply to divorce cases where one or both parents in a pending state divorce case are Native American.
It may sound odd to say a parent is “associated with a federally recognized Native American Indian tribe.” This term-of-art usually means a party is a member of an Indian tribe that the United States Department of the Interior has declared to have proven existed before the United States became a nation and said tribe still exists today. An example of a federally recognized Indian tribe would be the Eastern Band of Cherokee Indians, based in North Carolina. This tribe has traceable blood ties to ancestors “registered” as Native Americans prior to the 1930s “Dawes Rolls.” Ironically, Cherokees in the federally recognized Oklahoma Cherokee Nation may have common ancestors to their North Carolina cousins. DNA tests often determine blood lines and acceptable percentages of Native American heritage for a person to qualify as a tribal member or to be deemed “associated with a tribe.” Some people who could be registered as Native American in a federally recognized tribe do not register, but perhaps a parent or grandparent has registered. That unregistered person still has potential association with a Native American tribe. Likewise, if a Native American couple adopt a non-Indian child, the tribe can declare the adopted child to be a tribal member since each tribe determines their own membership qualifications.
In the event that a known Native American child comes into state court custody via surrender, state intervention for neglect, or private adoption, the state and court have an obligation to try and notify the relevant federally recognized Indian tribe that the child is in state custody or is being considered for a private adoption. Then the tribe, or Native American family members, can intervene in the state case to either monitor, participate in the state case, or seek to move the matter to the tribal court associated with the federally recognized Native American Indian tribe pursuant to ICWA. This law helps avoid a de facto tribal genocide by non-Indian adoptions or state foster care scenarios. Note that ICWA rules do not necessarily apply if a tribe is not federally recognized. Sadly, the mandate of ICWA is sometimes overlooked or undermined by social workers not asking about a child’s tribal background or a parent deliberately hiding a Native American tribal association. ICWA applies while a case is proceeding and a tribe can intervene, even late in the process. Once a case becomes final, even if ICWA could have applied, the right to intervene by a tribe under ICWA is usually extinguished.
For more information on ICWA or other Federal Indian Law questions, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith and Federal Indian Law in the November, 2019 ABA Journal, (the national magazine of the American Bar Association), at http://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith.