Going from “easiest” to “most difficult” in three weeks.

It is Election Day, but neither the title nor the subject-matter of this post have anything to do with that.

Later this week, November 11, I will be fortunate enough to present at the annual meeting of the Tennessee Association of Construction Counsel in Nashville and have billed my topic as “The Easiest Hour of Ethics You’ll Ever Learn.”  Unlike my normal seminars, I don’t plan to push the audience to participate at all, but (and this is a warning for those who are planning to attend and reading this post… here be SPOILERS and if you want to stay surprised you should read no further…)

Okay.

That should be enough hard returns and buffers for those who are trying to hit the back tab.

As most of you won’t be there, let me continue.  My plan is to essentially provide an “everything you ever wanted to know about the disciplinary process in Tennessee but were afraid to ask” presentation.  Far too few lawyer truly understand how the process works – and no one wants to learn about it for the first time when dealing with a disciplinary complaint filed against them, so hopefully it should be informative and a bit enjoyable.

Exactly three weeks later though, we’re going down the opposite path as I’m going to present at the Memphis Bar Association Labor and Employment Law section’s annual seminar in Memphis and my presentation is titled:  “The Most Difficult Ethics Hour You’ve Ever Earned – An Open Discussion of New ABA Model Rule 8.4(g) and What Comes Next.”  That one is going to be almost entirely interactive and given that the folks in the room will be employment and labor lawyers… I expect an opinionated bunch with thoughts on the relative merits of turning an employment law issue into an ethics and disciplinary issue.

I’ve written on this blog three times previously about the ABA Model Rule and won’t repeat myself today.  But I did want to briefly discuss a development along these lines.  Specifically, it comes from the Philadelphia Bar Association which, on October 26, 2016, passed a Resolution urging the Supreme Court of Pennsylvania:

to adopt the amendment to Rule 8.4 of the ABA Model Rules of Professional Conduct which adds section (g) making it an ethical violation to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

It will be interesting to see if this spurs any action from the Pennsylvania Supreme Court, or not, particularly given the negative publicity that various justices have brought upon that court over the last few years.

A very Tennessee-specific discussion for this Friday.

Later today I will have the honor of speaking as part of a panel at the TBA Health Law Forum.  The other panelists are Sheree Wright, the Senior Associate General Counsel with Vanderbilt University and Bill Hannah a lawyer in Chattanooga with the Chambliss Bahner firm.  I’m fortunate enough to have both Sheree and Bill as members of the TBA Ethics Committee I chair and am very excited to spend a couple of hours talking with them and the crowd about ethics issues near and dear to Health Care lawyers.  We’ll be talking about “The Ethics of the Distracted Lawyer.”  If you happen to be in the Franklin/Cool Springs part of Tennessee, you probably still might be able to work your way into the venue to register and attend.

As indicated in the title of the post, the only other thing I’m going to discuss today also is a topic that really is relevant only to Tennessee lawyers (but to a larger segment of that group, then the people that might actually contemplate a last minute visit to the above-highlighted seminar.)

I’ve now gotten enough inquiries over the last several weeks about the revised state-of-play in Tennessee state court litigation when it comes to attorney’s conferring with deponents during breaks in a deposition that it likely makes sense to write about it to have another handy link to send to folks that ask for a recollection refresher.

Whether such arrangements are kosher or not is subject to significant variance in various jurisdictions.  Perhaps the original case staking out the notion that an attorney’s communication with a client/deponent  during a deposition was not a privileged communication is Hall v. Clifton Precision,150 F.R.D. 525 (E.D. Pa. 1993).  I’ve done quite  few CLEs over the years where I used one hypothetical or another to tease out the situation and to lead the audience into a discussion about whether the lawyer taking the deposition can successfully force disclosure of what was said to the witness by another lawyer during a break.  The general principle from which courts have concluded that no privilege applies and that the contents of such discussions can be explored is that depositions are supposed to take place in the same manner as if they were trial testimony.  Karen Rubin back in 2015 delved pretty thoroughly into the state of the law on this issue at her firm’s blog here.

Tennessee has, assuming the vehicle chosen actually does the trick, created a very clear answer to this question now for cases pending in our state courts. The answer, in effect as of July 1, 2016, makes communications with a deponent during a break in the deposition perfectly appropriate, as long as: (1) there is not a question pending; and (2) the lawyer’s communication with the deponent during the break does not cross any lines so as to amount to a violation of RPC 3.3 or 3.4.

The vehicle chosen for doing this is a 2016 Advisory Commission Comment to our rule of civil procedure addressed at depositions, Tenn. R. Civ. P. 30.03  The comment provides as follows:

Rule 30.03 provides that “[e]xamination and cross-examination of witnesses may proceed as permitted at the trial under the Tennessee Rules of Evidence.” This language does not imply that Tenn. R. Evid. 615 is applicable to depositions. Unless otherwise ordered by the court, a lawyer may communicate with a deponent about deposition procedure or the substance of deposition testimony before, during (unless a question is pending) or after the deposition; however, such communications are subject to the Rules of Professional Conduct including, but not limited to, Tenn. Sup. Ct. R. 8, RPC 3.3 and RPC 3.4.

Now I don’t know exactly where an Advisory Commission Comment to a rule of procedure ranks in terms of authority and precedent as a technical matter, but there is no question that this is the latest word on this matter – words that our Court has bought into or they would have not approved the release – and, thus, a lawyer who wants to talk to their client during a deposition in our state court system no longer has to be worried about the client being forced to divulge the discussion on a claim that privilege does not apply.  At least as long as there wasn’t a pending question at the time of the break and the conversation.

What lawyers will still need to be concerned about – whether the deponent is their client or not — is communications that could be construed as amounting to violations of RPC 3.3 because they involve assisting a fraud on the tribunal or that could be construed as violating RPC 3.4.

The two most obvious pieces of RPC 3.4 that a lawyer could run afoul of through coaching a deponent during a break would be:

(a)       unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.  A lawyer shall not counsel or assist another person to do any such act; or

(b)       falsify evidence, counsel or assist a witness to offer false or misleading testimony

So, still a topic that can be explored through interesting hypos at future seminars even in Tennessee.

Everything’s bigger in Texas, including rule problems sometimes.

First, no argument from me that I’ve been a bad blogger this week.  I’d offer excuses, but no one likes to hear excuses.

Second, how about some actual substantive content … I’ve written in the past about ethical issues surrounding the verein structure of some of the largest law firms in the world.  Those prior discussions involved conflicts issues stemming from treatment of the verein as one firm for purposes of the ethics rules.

Within the last few weeks the State Bar of Texas Professional Ethics Committee issued Opinion 663 which reveals a new problem for lawyers practicing in a verein but a problem that is relatively specific to Texas given that it involves a pretty antiquated approach to law firm names — an approach that bars “trade names” altogether but that also gets very particular about whether a law firm name can have the name of someone who doesn’t actually practice law in that firm.

Texas still has in place a very persnickety rule about what law firm names, Rule 7.01 which reads:

A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that … if otherwise lawful a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession.

So, what particularly was the issue – and the opinion does genericize the firm names involved but you can read this TexasLawyer article if you want to know the real details — well, the issue is a law firm, previously known as Smith, Johnson wants to operate under the name of the verein it has joined – Brown, Jones, Smith — as explained by the Committee is that there has never been a lawyer at the Smith, Johnson firm named Brown or Jones.  Kind of silly, right?  They also say it is misleading because it would make people think that all the lawyers in the firms in the verein are all lawyers in the same law firm when they aren’t really.

The outcome of the opinion also raises an interesting question of larger impact which is why did the Texas committee make the assumption it made in the first place? Everything about the opinion flows from the assumption that the Committee explains to open the “Discussion” portion:

This opinion is based on the Committee’s assumption that the lawyers in the law firms that become members of an organization that includes other law firms (in this instance a verein) are not legally determined to be members of one law firm as defined in the Terminology section of the Texas Disciplinary Rules of Professional Conduct.

The word “firm” in that Terminology section, by the way, defines a firm in an entirely circular fashion as being “a lawyer or lawyers in a private firm; or a lawyer or lawyers employed in the legal department of a corporation, legal services organization, or other organization, or in a unit of government.”

The opinion explains that the facts it had been provided about the verein’s role in a way that would seem to support the conclusion that it was not one firm:

The verein provides some administrative services to each of the member firms and coordinates certain activities of the firms, but it does not provide legal services to clients. The lawyers who are members of the Texas law firm and who are licensed in Texas are not partners or members of the other law firms in the verein. The lawyers in the Texas law firm do not share profits, losses, or liabilities with the lawyers in the other law firms in the verein. The lawyers in the Texas law firm have no authority or vote in the actions of the other law firms in the verein. The law firms who joined the verein are not merged as a result of joining the verein.

So, in an interesting way, this Texas opinion truly is the flipside to the disqualification ruling involving Dentons that I wrote about so long ago.  That judge decided that because Dentons held itself out to the world as one firm, it should be treated that way under the ethics rules as to conflicts.  The Texas opinion says that you can’t hold yourself out to the world as one firm because you aren’t really one.

And, if you happen to be in the Murfreesboro area today and happen to be a legal professional, you could come hear me speak about the “12 Commandments of Social Media for Legal Professionals.”

 

Both the java fight and the nut dispute are kind of bananas.

If you spend any time on social media these days, you may have noticed how irritable folks are.  There are lots of reasons for it, of course.  We live in stressful times.  Practicing law has always been a high-stress endeavor as far as professions go; thus, cries for more civility in the practice of law have been going on for many years and likely will continue to go on for many more years to come.

I’ve offered before on this blog my overarching “don’t be an ass” theory as it relates to practicing law but lawyers are people and people are people, so … sometimes people don’t get along.

There have been two relatively recent examples of lawyers not getting along, actually getting into dust-ups that have become pretty high-profile (or at least they were a few weeks ago) and that seem pretty hard to believe all involved wouldn’t wish for a chance at a simple do over.

One of them was talked about most frequently as being a coffee fight, but reads more like something that was already in the problem range before the hurling of coffee ever came into the picture.  The dispute happened during a deposition so in addition to the he said/she said aspects of what went down, there was a court reporter present.  The court reporter’s version of events grabs parts of each of the competing stories and likely gets the closest to the accurate version of events — the coffee was iced coffee and it likely was hurled at the other lawyer.  Doesn’t change the fact that it’s really bad behavior but at least it makes it much less likely that anyone was at risk of burns from scalding coffee.  You can read about all the various filings and back and forth here, here, here, and here if you’d like.

The other dispute that got lumped into my reading pile with the java jousting is both more and less bizarre at the same time.  As it all appears to turn over false allegations about how one lawyer acted upon learning about the existence of a nut allergy on the part of another lawyer’s paralegal.  You can read a bit more about that weirdness here.

Interestingly (although maybe that’s the wrong choice of word), assuming away any criminality in any of the conduct), the ethics rules that often come into play in dust-ups of these sorts are RPC 3.4 (at least as to the parts of them that relate to battles over obstructionist discovery tactics and the like), RPC 4.4(a)’s prohibition on using means when representing a client “that have no substantial purpose other than to embarrass … or burden a third person,” and RPC 8.4(d) prohibition on conduct “prejudicial to the administration of justice.”  Interestingly (and here it is definitely the apt word), the coffee fight at least contains some undertones of issues that might be in the wheelhouse of the ABA’s new RPC 8.4(g),

Speaking of disputes, but not disputes between lawyers and not disputes involving the weaponizing of any ingestible foodstuffs, I will be doing a national teleseminar tomorrow along with Sue Friedberg who serves as Associate General Counsel of Buchanan Ingersoll & Rooney on “Ethics and Disputes With Clients.”  You can sign up for it through a number of different channels (check with your local bar for example) like through this link in Oregon or this link in Nebraska or this one in Missouri.

Here today, gone tomorrow. But also there tomorrow.

So, tomorrow, I am speaking as part of a seminar put on by the Solo and Small Firm section of the Memphis Bar Association focusing on aspects of buying or selling a law practice.  I’ll be doing the second hour — “What to Do When (not) Everything Must Go? The Ethics of Buying or Selling a Law Practice” — so come out if you are in Memphis and it might be of interest to you.

One thing I’ll likely just mention barely though, if at all, is another important thing that solo lawyers should have on their to-do list which is having a plan in place for who takes over or takes care of their practice in the event something sudden and horrible happens to them.  In Tennessee, we’ve adopted a relatively robust provision as part of our rules of disciplinary procedure that allows for another law to serve as a receiver attorney and that permits lawyers to designate someone by contract in advance to perform those services and, presumably, end up imbued with all the same powers a receiver attorney would have if appointed by a court.

I’m pasting below a piece I authored addressing one aspect of this succession planning topic for lawyers — “Financial Planning for the Closing or Transition of Your Law Office.”  This is one piece of a collection of materials I put together that are housed within the Tennessee Bar Association’s Solo In A Box Toolkit.  You can read it along with the other pieces I put together for the very poorly (or at least unwieldily) named “TBA Handbook: Materials and Forms Relating to Planning/Providng For An Orderly Transition Before Sudden Death, Disability, or Incapacity Arises” (yes – typo in the original; ugh) at this link.  But here are my thoughts du jour on the financial planning aspect of the subject for those that don’t want to take a look at the link (and until this gets read I’m not sure more than 5 people have ever read it because the set of materials are buried albeit not on the deep web but pretty deep into the TBA website).

Receiver Attorneys who assist in transitioning your clients or closing your law practice after your death, sudden disability, or sudden incapacity need there to be available funds for a number of purposes to pay for items needed in the closing process and, of course, to compensate them for their time and service. Attorneys should do their best to make arrangements in advance for such needs. Attorneys also should plan to make funds available as working capital to pay staff, rent, utilities as well to insure the orderly transition and closing of their office after they are no longer able to practice law. When Attorneys fail to do this, they will put the Receiver Attorney in the position of having to seek to have their fees and other expenses paid from the Attorney’s Estate if there is one which may cause unnecessary conflicts to arise and burdens imposed. Receiver Attorneys and Attorney’s staff should not have to worry about their compensation while being asked to assist the Attorney, the Attorney’s Estate or family member by transitioning and closing the Attorney’s practice and office.

Some Suggested Methods of Funding the Transition and Closing of Your Office:

1. Establish an Office Closing Fund in a separate bank account in an amount projected to be sufficient to cover 2 months of operating expenses for your office. Have your designated Receiver Attorney listed as an authorized signatory for this separate bank account.

2. Take out a small life insurance policy of $10,000 to $25,000 on your life and amend your will to designate that these funds are too be used for the purposes of funding the orderly closing of your office and direct your Personal Representative or Executor accordingly.

3. If your law practice is organized as a professional limited liability company, professional corporation, or other business entity and leave a bequest in your will to the entity with directions that the funds be made immediately available to the Receiver Attorney to pay the costs and expenses of closing your law office.

4. Have your business entity purchase a life insurance policy on your life that names the entity as the beneficiary. Again, including directions/instructions in your will regarding the use to which the funds are to be put.

If funds are available to compensate those involved in doing the work, then the Receiver Attorney and your staff should be much better positioned to pull your files together, notify clients and opposing attorneys, collect accounts receivable, prepare motions and notices to courts and otherwise efficiently, and expeditiously, complete the transition of your practice and closing of your office.

 

Shameless self promotion – 2016 Ethics Roadshow update

Big news … well, the size of the news may be subject to differing opinions, but news.

Believe it or not, this year will be the 12th year that I have had the opportunity to do the Ethics Roadshow for lawyers throughout Tennessee.  Since this is my 12th go round at doing three hours of just me talking about ethics, the theme of this year’s Roadshow will be the “12 Most Important Developments of 2016 Impacting Ethics and Lawyering.”

Those of you are in the intersecting portion of the circles on the Venn diagram of Roadshow attendees and blog readers will likely be able to predict many of the topics we end up talking about in December 2016.

Because I don’t like to be completely predictable, however, it is possible,  especially given my full-on case of Hamilaria, that I’ll end up performing a 3-hr groundbreaking musical adaptation of the Second Edition of Professional Responsibility in LitigationAfter all, why should I throw away my shot?

I don’t think the TBA has the pages up and running yet to register to attend for any of the stops, but once they do I’ll put the links up at the Seminars page of the site.  In the meantime, here are the city-specific details:

The 2016 Ethics Roadshow: More Ethical by the Dozen?

Memphis – December 6, 2016

Nashville – December 7, 2016

Jackson – December 12, 2016

Chattanooga – December 14, 2016

Knoxville – December 15, 2016

Johnson City – December 16, 2016

 

Wait for it.

Stress, drinks, and folderol

Over the last several months there have been various iterations of stories and reports making the rounds about the susceptibility of our profession to depression and substance abuse, reports of 1 in 5 lawyers being problem drinkers, etc.  There are also always folks out there writing variations of pieces about the problems that are created by incivility among lawyers.  Here’s one rolled out earlier this month.  While I am a strong believer that vague and “eye of the beholder” concepts such as civility and professionalism should be kept separate from ethical codes that are enforceable through discipline, I’m also on record about the general, good advice of simply not being an ass.

I don’t know if it is true, as I’ve heard some say now or as some said in 1989 before I was ever even practicing for that matter, that things are worse/more vitriolic now than they have been in the past.  I don’t purport to know the answer to that last question but certainly have my own cynical views about nostalgia generally (and as to the practice of law particularly) where I end up agreeing almost wholeheartedly with John Hodgman’s view:

That’s the parlor trick of nostalgia, and it’s why nostalgia is the worst. It is a toxic impulse that leads to nothing good, honestly. The idea that things were better once and are terrible now and getting worse every minute is what fuels the worst, in my opinion, movements in contemporary culture.

But, at the same time I recognize in myself the additional stress in life that can come as a side effect to all of the wonderful benefits that technological advances do bring to life.  None of us are perfect and all of us are under pressure and all of us feel the need to provide rapid responses and take rapid action, a need that is inculcated with each passing day that we practice in the always-at-work world of smartphones, wearable tech, and whatever might have been invented just now.

A week from today I will be speaking in Memphis for attorneys who need an hour of ethics credit on the topic of “Ethics in Dealing With Opposing Counsel.  Ironically or not, the talk will be in connection with a Happy Hour event, and there will be adult drinks available afterwards.

All professions have aspects of what they do that induce stress; lawyers are not unique in that regard.  Yet, one thing that we do have to deal with that almost no other professionals have to endure are folks like the Connecticut gentleman who prompted this federal court order and who claims to have reopened the “federal postal court” and to have created his own language rife with strange syntax, mathematical formulas, and a core tenet that only nouns have legal meanings.

Ask any LAWYER YOU know and THEY’LL TELL YOU that they’ve HAD TO DEAL at least ONCE with one of THESE CHARACTERS that also MANAGES TO ALWAYS have to work in random BOUTS OF capitalization.  Having to deal with these folks and assist clients in attempting to unwind the crazy stuff these jokers attempt to do is a bonus stressor for the legal profession.

In this particular incident, as today’s ABA Journal online article explains, most of the heavy lifting in unwinding the nonsense was borne by a federal district judge.  Yet, the problem created was not insubstantial, and I would guess at least a lawyer or two spent some time stewing over the potential damage that was being caused to their client.  The gentleman had filed an $11.5 million “judgment” of the federal postal court for registration in Connecticut against Ocwen Financial Corp.

In ordering that the “judgment” be stricken, among other choice nuggets, an actual federal court had to write that that the gentleman claiming to be a judge of the postal court had explained during a telephonic hearing:

that the Federal Postal Court operates on the basis of a sophisticated mathematical understanding of language that proves that certain mortgage documents are fraudulent.

The story also notes that there were dozens of similar filings made recently in Connecticut purporting to be judgments of this “court” which, uniquely, has no physical fixed location but happens to have “transitory jurisdiction wherever the federal postal eagle symbol may be.”

Just writing about this issue kind of makes me interested in having a beer with lunch.  If I do (I won’t), it would be a Belgian beer as a reminder of real, and much more consequential, problems and stressors that are out there in the modern world.

 

Today – Ethical Issues When Changing Law Firms.

There probably has been news this week about a set of departures of lawyers from one prominent firm to another or efforts that firms are taking to disincentivize their lawyers from taking their clients and moving on to a new destinaton.  As I indicated on Monday, I’m not actually around at the moment so this post was prepared and scheduled in advance so I won’t pretend that I’m doing anything other than guessing.  (As the McElroy Brothers would say, I’m sort of parting the kimono at this moment.)  But it is still that time of year, and just last week there were stories such as this one and this one and this one about such topics.

Today, if you are in any of the states where it is being broadcast today, including Alabama and North Carolina, you can sign up to hear me talk for an hour on Ethical Issues When Changing Law Firms.  In addition to getting necessary CLE credit, you’ll hear me discuss aspects of RPC 5.6 and RPC 1.16, as well as talk a bit about the relatively recent revisions to ABA Model Rule 1.6 to permit disclosure of client confidential information for purposes of running conflict checks when looking at making a lateral move.

Although in my practice I have advised and counseled both lawyers moving firms and firms being left behind, today’s seminar will have as its primary focus the perspective of a lawyer making a move and practical tips and approaches having an eye toward avoiding grass stains in your search for greener pastures.

Digital assets and ethical issues – good news from the Tennessee legislature

Last week the Chattanooga Estate Planning Council was kind enough to have me come to speak to them about ethical issues arising from the uncertain world of the law regarding digital assets.  They were gracious hosts and, to the extent there were important ethics issues to really discuss, we managed to cover that most, if not all, such isssues stemmed from the fact that it is incredibly difficult for those working in estate planning to try to accomplish client objectives as to digital assets in Tennessee because we lack legislation to address it.  For that reason, it seemed to me that the two most prominent ethical concerns for lawyers working in that arena are the duty of competence under RPC 1.1 and the duty under RPC 1.4(b) to communicate about what their clients need to know to make fully informed decisions about the representation.

What’s necessary to address the duty of competence is difficult to pare down beyond recognizing that you have to be as fully up to speed on what Tennessee law does, and does not, address to understand the uncertainty and about how federal law (including the Computer Fraud and Abuse Act and the Stored Communications Act) permits service providers to deny requests for access to online information after users and subscribers have passed away.

The most difficult part about the duty of communication under RPC 1.4 is figuring out how to warn a client that no matter how well thought out their estate plan might be on the subject of distribution of digital assets, the client could, by accepting online terms and conditions for use (or updated and revised terms and conditions of use), thwart the plan by ceding ownership of digital assets or authorize service providers or online entities to refuse to honor the contents of such plans.

This week the Tennessee legislature passed legislation so that the time period of such uncertainty now has an end date — July 1, 2016.  Effective at that time, Tennessee attorneys will be able to count on a version of the Revised Uniform Fiduciary Access to Digital Assets Act that solves many problems intrinsic to this area of the law.  You can access the version that will go into effect by downloading the PDFs from this post at the TBA Law Blog here.  It will be codified as Tenn. Code Ann.  35-51-101 et seq.  And if you are interested in seeing all of the areas where it differs from the Revised Uniform Act, you can see the full Revised Uniform Act here.

For those that don’t have the time (or the inclination) to go study the Tennessee Act, among the many important and helpful things it accomplishes, there are three I want to highlight.

First, the term “digital asset” will have a clear definition.

[A]n electronic record in which an individual has a right or interest.  ‘Digital asset’ does not include an underlying asset or liability unless the asset or liability is itself an electronic record.

Thus, for example, my URL and this blog should be recognized as a digital asset of mine under state law.  If you have gone green and only receive your bank statements in digital form, then those statements would be a digital asset even though the money in your bank account that they document would not.  If you’re invested in Bitcoin on the other hand, then the value of your holdings in Bitcoin would be digital assets under the Tennessee Act.

Second, the Tennessee Act generally establishes a hierarchy that puts something called an “online tool” at the top, estate planning documents next, and general terms of service agreements last when it comes to directions to online service providers/custodians about post-death disclosure of digital assets.  Section 5 of the Tennessee Act explains:

(a)  A user may use an online tool to direct the custodian to disclose or not to disclose some or all of the user’s digital assets, including the content of electronic communications.  If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other dispositive or nominative instrument.

(b)  If a user has not used an online tool to give direction under subsection (a) or if the custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of attorney, or other dispositive or nominative instrument, disclosure to a fiduciary of some or all of the user’s digital assets, including the content of electronic communications sent or received by the user.

(c)  A user’s direction under subsection (a) or (b) overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user’s assent to the terms of service.

Online tool, is also a defined term under the Tennessee Act.  “An electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person.”  I’m not sure, as a frequent user of the Internet, that I have encountered one of these items yet.

Third, while this legislation goes a long way toward reducing uncertainty for estate planning lawyers in Tennessee, it does not change the fact that lawyers will still have to have cogent discussions with their clients when the topic of providing for distribution of digital assets in their estate planning documents arises.  This is in no small part because blithe acceptance of online terms of service agreements will still have consequences in Tennessee as Section 6 of the Tennessee Act makes clear that the underlying rights of users are still going to be limited to whatever is created in a terms-of-service agreement in the first place.  Thus, there will still be lots of confusion on the part of clients who may think, for example, that they actually own and can leave behind that digital library of e-books they possess, yet the terms-of-service they may have agreed to without reading could indicate that they do not actually own any of those items but possess only a lifetime license to use.