Each year, the Tennessee Bar Association recognizes outstanding service by attorneys who have dedicated their time to helping others. The TBA’s annual public service awards include the Harris Gilbert Pro Bono Volunteer of the Year, which recognizes private attorneys who have contributed a significant amount of pro bono work and have demonstrated dedication to the development and delivery of legal services to the poor. The award is named after Gilbert, a Nashville attorney and past Tennessee Bar Association president, who exemplifies the Bar’s commitment to public service. The TBA’s story recognizing Horwitz, authored by Katharine Heriges, is available here and reprinted below.
It’s hard to not be impressed with Daniel Horwitz.
Every year, the Tennessee Bar Association honors members of the legal community who have led impressive careers, but even among that noteworthy cohort, Horwitz stands out.
His cases have been written about in Slate, Forbes and USA Today, to name a few. He’s been published and cited in a number of legal publications. He’s had cases in front of the Tennessee Supreme Court. Runs a successful legal blog. Has clocked in thousands and thousands of hours of pro bono service.
And he hasn’t even turned 35.
Horwitz came to Tennessee to attend Vanderbilt Law, of which he is a 2013 graduate. A Los Angeles native and undergrad alum of Cornell University, he calls himself the “black sheep” of a family of scientists and doctors for choosing a legal career.
Black sheep? It’s a little tough to believe.
Everything about Horwitz is improbable though — not the least of which being his penchant for taking on seemingly impossible pro bono civil rights cases and winning.
In a particularly high-profile example that took place this year, Horwitz represented Maximiliano Gabriel Gluzman, an Argentine native and Vanderbilt Law graduate who was stopped from sitting for the Tennessee Bar exam by the Tennessee Board of Law Examiners. Despite finishing Vanderbilt’s LL.M. program with a 3.9 GPA, Gluzman was denied the chance to take the Bar in Tennessee because of his previous Argentinean legal education. Married to an American woman from Memphis, relocation outside of Tennessee would have been difficult and he had few options available to him.
Gluzman guesses that Horwitz dedicated more than 200 hours to the case.
“I knew if anyone was going to go to the mat for Maxi, it would be Daniel,” said David Hudson, a friend and former professor of Horwitz’s who first connected him to Gluzman.
Horwitz didn’t just represent Gluzman, whose case ended up in front of the Tennessee Supreme Court. He used every tool in the toolbox to turn a legal matter into a full-blown movement.
Horwitz pressed for media coverage, which he received from local and national outlets. The University of Tennessee and Vanderbilt University were recruited to jump on board as well, filing briefs in support of Gluzman. Although Horwitz once served as Election Counsel for the Tennessee Democratic Party, he petitioned national conservative groups to support Gluzman’s endeavor. The Beacon Center of Tennessee, the Washington, D.C.-based Cato Institute and Arizona’s Goldwater Institute all submitted amici curiae briefs on Gluzman’s behalf.
Hudson called Horwitz’s effort “Herculean.” For Gluzman, it was life changing.
With the Supreme Court ruling in his favor, Gluzman will be allowed to sit for the February 2018 Bar exam. Aside from doing right by his client, the implications of this case will be felt for years to come. The Tennessee Supreme Court is currently reviewing changes to Rule 7 of the Rules of the Supreme Court, the section that covers Bar admission.
To hear Horwitz describe the case, it seems like it’s “all in a day’s work.” But a day’s work for the average young lawyer doesn’t always include nationally significant cases, does it?
The majority of his pro bono work, however, doesn’t receive gavel-to-gavel coverage.
“He routinely helps indigent people expunge their criminal records free of charge, assists the poor with landlord-tenant disputes, and represents crime victims who have nowhere else to turn for help to secure their safety,” said attorney Joy Kimbrough, who has worked with Horwitz. “Few are aware of this work, because (he) doesn’t talk about it.”
Like the case of Amy McDowell (not her real name), a woman Horwitz represented in a case of stalking and harassment. In 2016, McDowell had recently moved to Nashville and had been receiving incessant calls and voicemails from a man threatening to set her on fire. She went to the police with the information, but after they were unable to trace the calls, they said that there was little they could do unless violence had actually been committed.
Horwitz took on her case with dogged commitment.
“Soon, (he) had both a private investigator and the District Attorney private investigator working on the case,” McDowell said. “Within two months, we successfully had a correct ID on the perpetrator, something even the police thought was nearly impossible.”
The man was arrested and pleaded guilty to misdemeanor charges, but that wasn’t enough for Horwitz.
“(He) did not end the case with the first arrest, but continued to fight on my behalf to pursue felony charges,” McDowell said. The man who tormented McDowell is currently serving time in jail thanks to Horwitz.
McDowell said Horwitz clocked more than 55 pro bono hours on her case over 19 months.
Listening to friends talk about Horwitz is a nonstop list of his audacious achievements:
What about the time he got a Nashville man’s 1995 sodomy conviction expunged using a writ of audita querela, which hadn’t been seen in a Tennessee court in a century?
What about his case against the White County judge who offered time off of jail sentences for inmates who agreed to undergo birth control procedures?
What about his work serving on the YWCA board?
What about his legislative lobbying efforts on behalf of indigent litigants?
Simply put, Horwitz doesn’t stop.
“He’s not only brilliant, he’s got an indefatigable work ethic,” Hudson said. “And a strong sense of justice.”
Hudson described befriending him while they co-clerked for Tennessee Supreme Court Justice Sharon Lee: “Sometimes he would work until 10 p.m. at night. I was long gone by then.”
Horwitz said he makes civil rights and pro bono work a priority in his life and practice, but also notes that he has the time because he works for himself.
“I’ve never worked for a corporate law firm,” he said. “I know some people (at corporate firms) are able to do a significant amount of civil rights-related pro bono work, but I know a lot of them can’t. I’ve never had to deal with those kinds of barriers.”
He points out that for many new law graduates who want to take part in impactful civil rights work, the cost of student loans — and the pressing need to make payments on time — in many ways make it impossible. New lawyers find themselves having to take the job that pays best, rather that the position that will lead to the most significant career.
“It’s a huge problem,” Horwitz said.
It’s one that needs to be addressed, because the legal profession is in need of attorneys who are ready to change the justice system.
“I think it’s really important for lawyers to represent unpopular clients who have important causes,” Horwitz said. Like a current client, who’s serving three consecutive lifetime sentences for a crime he committed when he was 14. “Nobody wants to go near those cases — they are devastating to everyone who has any connection to them. But we’re talking about kids here. The U.S. Supreme Court has held repeatedly that kids are different.”
Horwitz said it’s great when those types of cases get public attention.
“But it’s easy to forget that those cases aren’t rare,” he added. “Lots of people have devastating stories that don’t get any kind of attention or garner any sympathy. It would be nice if we gave more than lip service to all of them.”
— Katharine Heriges
Represented by attorney Daniel Horwitz, Tennessee bar applicant Maximiliano Gluzman—the “obviously very, very qualified” Vanderbilt Law School graduate who was denied the opportunity even to take the Tennessee Bar Exam—has officially won his case before the Tennessee Supreme Court. Based on the Court’s order approving his petition, Mr. Gluzman will be able to take the upcoming bar exam scheduled for February 2018.
“We conclude that the requirements of section 7.01 should not be applied to preclude Mr. Gluzman from taking the Tennessee bar examination,” the Court held in a per curiam order. “As a result, the BLE may not hereafter rely upon section 7.01 of Rule 7 as a basis to deny Mr. Gluzman permission to take the Tennessee bar examination.” The Court’s order is available here.
“We are ecstatic that the Tennessee Supreme Court has vindicated Mr. Gluzman’s claim that he was wrongfully denied the opportunity to take the Tennessee Bar Exam,” said Daniel Horwitz, Mr. Gluzman’s attorney. “Mr. Gluzman is as qualified to practice law as any attorney in Tennessee, and he will be a tremendous asset to the legal profession. Justice was served today.”
The briefing in Gluzman v. BLE featured the participation of three leading national conservative groups, which argued that the Board’s crippling regulations violated Mr. Gluzman’s fundamental right to earn a living free from irrational government overreach. Tennessee’s two flagship law schools—Vanderbilt Law School and the University of Tennessee College of Law—also filed petitions in the case after seeing students disenroll from their law programs once the Board began implementing its protectionist regulations. All parties’ briefs from the case are available below.
Selected news coverage about the ruling is available at the following links:
-Nashville Post: Supreme Court rules Argentine can take Tennessee Bar
-Nashville Post: Argentine lawyer challenging Tennessee Board of Law Examiners
-Nashville Post: National conservative groups join local bar fight
-The Tennessean: How Tennessee discriminated against a talented Vanderbilt law grad
-Cato At Liberty Blog: Even Lawyers Have the Right to Earn an Honest Living
-Beacon Center Blog: Banned From the Bar Exam
Daniel A. Horwitz is a constitutional lawyer practicing in Nashville, Tennessee. He is admitted to practice law in every court in Tennessee as well as the U.S. Court of Appeals for the Fifth, Sixth, Seventh and Eleventh Circuits. Horwitz’s award-winning legal scholarship has appeared in numerous law reviews including the Harvard Latino Law Review, the University of Memphis Law Review, the Tennessee Journal of Law and Policy, the SMU Science and Technology Law Review, and the Nashville Bar Journal. His work has also been cited in several other legal and popular publications including the Washington Post, NPR, the Associated Press, the American Bar Association Journal, Forbes, the Nashville Business Journal, The Tennessean, The Commercial Appeal, The Nashville Scene, Slate, and in multiple pleadings filed before the U.S. Supreme Court. Horwitz is also a sitting member of the Tennessee Advisory Committee to the U.S. Commission on Civil Rights.
Horwitz’s law practice consists primarily of criminal and civil appeals, constitutional litigation, amicus curiae representation, criminal record expungement, and representing victims of crime. He is also an active member of numerous community organizations in Nashville and serves on the Amicus Curiae Committee of the Tennessee Association of Criminal Defense Lawyers (TACDL), which regularly handles appeals before the Tennessee Supreme Court on behalf of TACDL’s membership.
In a blistering segment aired by WSMV-Channel 4 on July 28, 2017, attorney Daniel Horwitz spoke out against a Judge in White County, Tennessee, who is using jail time as leverage to coerce defendants into getting sterilized.
“This program is outrageous,” Horwitz said in the segment. “It is morally indefensible, and it’s illegal. Coerced consent is not the same thing as consent, and using jail time as a means of getting someone to submit to sterilization is not acceptable in any regard.”
“I think it is unconscionable that anyone would tolerate a judge or a criminal justice system that coerces people into relinquishing their reproductive rights in order to gain their freedom,” Horwitz added. “I want this entire order rescinded in its entirety, and I want this judge, Judge Benningfield, to seriously consider whether he needs to be on the bench any longer.”
In a resounding win for First Amendment freedom and a free press, the defamation lawsuit filed against beloved Nashville restaurateur Randy Rayburn has been dismissed outright by Davidson County Circuit Court Judge Kelvin Jones. The costs of the lawsuit were also assessed against Plaintiff Tom Loftis, the aggrieved former director of The Randy Rayburn School of Culinary Arts at Nashville State Community College, who had sued Mr. Rayburn for a whopping $1.5 million over a March 2, 2016 Tennessean article that had reported that the program was turning out unqualified students.
The lawsuit, first reported by the Nashville Business Journal, drew national media coverage due in part to its “extraordinarily innocuous subject matter.” According to one media outlet, the lawsuit’s “attempt to fashion a libel lawsuit out of nothing bears far more resemblance to those filed by plaintiffs with fools for lawyers.” The Plaintiff in the case was represented by Nashville attorneys Gary Blackburn and Bryant Kroll.
In his ruling from the bench dismissing the lawsuit against Mr. Rayburn, Judge Jones noted that under Tennessee law, an allegedly defamatory statement must “be read as a person of ordinary intelligence would understand it in light of the surrounding circumstances.” Judge Jones also observed that whether a statement is capable of being understood as defamatory “is a question of law to be determined by the court.” Finding that Mr. Loftis’s Complaint could not satisfy these standards, Judge Jones dismissed Mr. Loftis’s lawsuit with prejudice and assessed him the costs of the litigation.
Said Daniel Horwitz, Mr. Rayburn’s lead counsel: “We are pleased that this baseless lawsuit has come to a quick and much-deserved end. The legal system should not be used to litigate hurt feelings or to deter people from speaking to the media. We are grateful that Judge Jones dismissed this frivolous lawsuit at its first appearance, and we are thrilled that Mr. Rayburn will be able to recommit his full attention to doing what he loves: running wonderful restaurants, serving his community, and feeding delicious food to his grateful patrons.”
Documents from the case and selected media coverage are available below.
Selected Media Coverage:
-Nashville Business Journal: Nashville restaurateur Randy Rayburn faces $1.5 million lawsuit
-Nashville Business Journal: Judge dismisses $1.5M suit against well-known restaurateur
-First Amendment Center’s Newseum Institute: Unusual Defamation Suit Targets Source of Story
In response to a lawsuit filed on March 3, 2017 by attorney Daniel Horwitz on behalf of Plaintiff Dustin Owens—who was issued a citation in early February for displaying what a Metro Nashville Police Officer claimed was “an obscene bumper sticker”—lawyers for the city of Nashville have conceded that “Mr. Owens is correct that the bumper sticker at issue does not fit the criteria of ‘obscene and patently offensive’ as those terms are defined in Tenn. Code Ann. § 55-8-187 and under relevant First Amendment jurisprudence.” As a result, Metro has agreed to dismiss Mr. Owens’ citation and accept a declaratory judgment that the bumper sticker at issue “is protected by the First Amendment to the U.S. Constitution.” Under the parties’ settlement agreement, Metro will also pay for the costs of Mr. Owens’ lawsuit.
Said Horwitz, Mr. Owens’ counsel: “The statute under which Mr. Owens was cited is facially unconstitutional. Hard-core censorship of this nature also has no place in a free society. We’re ecstatic about this victory, and we appreciate Metro’s prompt concession that the position taken by Mr. Owens’ arresting officer was nakedly meritless.”
Selected media coverage and documents from the case are available below:
By TONY GONZALEZ • NOV 14, 2016
More than a decade has passed since the U.S. Supreme Court struck down the so-called “sodomy” laws that made it criminal to engage in homosexual sex — and even longer since Tennessee took that step.
Yet traces of those prosecutions linger, with charges logged in court files and subject to background searches. In Nashville, that includes convictions against 41 men from the 1980s and 90s.
Nashville, Tennessee—The Tennessee Board of Cosmetology and Barber Examiners has officially withdrawn its threatened enforcement action against on-demand beauty services provider Project Belle (“Belle”), green-lighting the company’s business practices and enabling its continued growth throughout the State of Tennessee. Represented by Nashville attorney Daniel Horwitz, Belle responded to the Board’s formal demand that it pay a fine and cease and desist from operating by invoking Belle’s constitutional rights to conduct business free from protectionist governmental interference. The hard-fought victory is featured in Forbes, The Nashville Business Journal, Reason, The Daily Signal, The Tennessean, and other media outlets.
Based on the complaint of a competitor that Belle was introducing “highly disturbing” competition for customers into the market for beauty services, the Board had claimed that the Tennessee Cosmetology Act of 1986 prohibited Belle from facilitating the purchase of cosmetology services in the privacy of a customer’s home. Accordingly, the Board demanded that Belle pay a civil fine, waive its right to judicial review, and cease and desist from operating. Instead, Belle lawyered up and formally contested the Board’s allegations, causing it to “reconsider” its threatened enforcement action. The Board’s decision to permanently withdraw its demand and close the case soon followed.
Photo Credit: Jessica Steddom
“We are extremely pleased that the Board of Cosmetology has withdrawn its unlawful and overzealous threats against Project Belle, whose only crime has ever been to provide eager customers with convenient, premium quality beauty services at competitive prices in the privacy of their own homes,” said Daniel Horwitz, Belle’s attorney. “No government agency should be in the business of preventing popular, innovative businesses from serving willing customers just to protect entrenched industry competitors from competition. We look forward to working with the General Assembly in the coming months to make clear that the Board lacks the authority to deprive healthy, able-bodied consumers of their right to purchase their desired beauty services whenever and wherever they please.”
“The Board has decided to dismiss its complaint and Belle will continue its operations and growth efforts in Nashville,” said Armand Lauzon, Belle’s founder and CEO. “We are delighted by the Board’s decision. It means that beauty professionals who have built businesses with us can continue their success, and our clients can continue enjoying services that many of them desperately need. It also means that economic growth and innovation can continue expanding in Tennessee. We are proud to have helped pave the way on this important issue.”
Read more about the case below:
Constitutional lawyer Daniel A. Horwitz has been appointed to a four-year term on the Tennessee Advisory Committee to the U.S. Commission on Civil Rights.
State Advisory Committee members conduct reviews and produce reports and recommendations concerning state and local civil rights issues, including justice, voting, discrimination, housing, and education. By Congressional mandate, the Commission establishes Advisory Committees in all 50 states and the District of Columbia. Appointees to State Advisory Committees serve renewable four-year terms.
The U.S. Commission on Civil Rights is an independent, bipartisan agency charged with advising the President and Congress on civil rights matters and issuing a federal civil rights enforcement report. For information about the Commission and its State Advisory Committees, please visit http://www.usccr.gov.
The Commission appointed:
Harvard Law School has published Daniel Horwitz’s article: Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1 (2016), in the Spring 2016 edition of the Harvard Latino Law Review. The article, accessible here, argues that the right to the effective assistance of counsel outlined in the landmark U.S. Supreme Court case Padilla v. Kentucky, 559 U.S. 356 (2010), applies to undocumented defendants. Its abstract is as follows:
In Padilla v. Kentucky, the U.S. Supreme Court held that non-citizen defendants who plead guilty as a consequence of having received incompetent immigration advice are entitled to withdraw their pleas if they can “convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” To date, however, a nearly unanimous line of authority that includes two U.S. Circuit Courts of Appeals, seven U.S. District Courts, trial and appellate courts in four states, and at least one academic scholar has concluded in some form or fashion that “Padilla applies only to those who were present in the country lawfully at the time of the plea.” Specifically, these authorities have reasoned that because “a guilty plea does not increase the risk of deportation” for undocumented defendants, “in a situation where a defendant seeks to withdraw a plea based on Padilla, and alleges lack of knowledge of the risk of deportation, prejudice cannot be established[.]” In other words, these authorities conclude, regardless of either the breadth or the magnitude of their counsel’s incompetent immigration advice, undocumented defendants are never entitled to relief under Padilla because they are categorically incapable of satisfying Padilla’s “prejudice” prong.
These contrary authorities notwithstanding, however, this Article argues that Padilla does apply to undocumented defendants. Four reasons are offered to support this view. First, the contrary conclusion neglects the legal and practical reality that a guilty plea frequently does increase the risk of deportation for undocumented defendants. Second, regardless of the fact that there are myriad situations in which a guilty plea can cause an undocumented defendant to be deported who otherwise would not have been, the test for prejudice under Padilla is not whether a non-citizen defendant would have been deported anyway; instead, the applicable test is whether “a decision to reject the plea bargain would have been rational under the circumstances.” Third, the contention that Padilla does not protect undocumented defendants undermines the underlying purpose of the right to effective assistance of counsel itself: to prevent inaccurate convictions. Fourth, Padilla held without equivocation that: “It is our responsibility under the Constitution to ensure that no criminal defendant — whether a citizen or not — is left to the ‘mercies of incompetent counsel,’” and because this holding expressly includes undocumented defendants, lower courts lack the authority to ignore it.
Taken together, this Article concludes that future courts should reject the prevailing view that Padilla does not apply to undocumented defendants and should hold instead that undocumented defendants’ Padilla claims must be carefully reviewed for prejudice on a case-by-case basis.