DICTA.April 2016 by Knoxville Bar Association

Judicial News: PROFILE: Tennessee Court of Appeals Chief Judge Michael Swiney . . . Page 7 Schooled in Ethics: Transplanted Attorneys and the Unauthorized Practice of Law . . . Page 21

A Monthly Publication of the Knoxville Bar Association

April 2016

HOW WILL WATSONâ&#x20AC;&#x2122;S CHILDREN IMPACT THE FUTURE OF LAW PRACTICE?

Professor Judy Cornett will combine her legal expertise with her passion for literature in her CLE program about Harper Lee’s “Go Set a Watchman” and the character of Atticus Finch.

DICTA

April 2016

In This Issue

Officers of the Knoxville Bar Association

April, 2016

COVER STORY 16

How Will Watson’s Children Impact the Future of Law Practice?

CRITICAL FOCUS President President Elect Treasurer Wayne R. Kramer Amanda M. Busby Keith H. Burroughs

Dwight Aarons E. Michael Brezina III S. Dawn Coppock Lisa J. Hall Dana C. Holloway

Secretary Wynne du Mariau Caffey-Knight

KBA Board of Governors Rachel P. Hurt Carrie S. O'Rear M. Samantha Parris Cheryl G. Rice Keith D. Stewart

Immediate Past President Tasha C. Blakney

Hon. Steven W. Sword Taylor A. Williams John E. Winters

President’s Message Total Commitment to the Law and the Community

Judicial News PROFILE: Tennessee Court of Appeals Chief Judge Michael Swiney

Practice Tips Filing a Complaint: “I Hereby Complain!”

The Knoxville Bar Association Staff

Legal Update Fundamentally Fair Proceedings In Parental Termination Cases: A Review of In re Carrington H.

Nice Niche Immigration

Management Counsel: Law Office 101 Form I-9 Regular Internal Audits: An Ounce of Prevention

Marsha S. Wilson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Wendy Williams Membership & Operations Coordinator

Lacey Dillon Programs Administrator

Schooled in Ethics Transplanted Attorneys and the Unauthorized Practice of Law

CONVENTIONAL WISDOM Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org

Tracy Chain LRIS Administrator

Kayla Swiney LRIS Assistant

Matthew Robinson

A Tradition Unlike Any Other

Around the Bar

Of Local Lore & Lawyers

DICTA

publication of the Knoxville Bar Association

DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association.

Publications Committee Executive Editor Executive Editor Executive Editor Editor

J. Nicholas Arning, Jr. Cathy Shuck Chris W. McCarty Lee Nutini

All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Wilson (522-6522).

Heidi A. Barcus Melissa B. Carrasco Casey S. Carrigan Kathryn St. Clair Ellis Elizabeth B. Ford Mark S. Graham Rachel P. Hurt Joseph G. Jarret F. Regina Koho David E. Long

DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members.

Managing Editor Marsha Wilson KBA Executive Director

April 2016

Matthew R. Lyon Christina F. Magrans Jeffrey T. Malotte Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Melissa C. Reinders James K. Scott Ann C. Short

DICTA

High School Mock Trial Competition Edward Terry Sanford, UT Alumnus, Associate Justice of the U.S. Supreme Court

DICTA is the official

Outside My Office Window

Brittany Headrick LRIS Assistant

Volume 43, Issue 4

Hello My Name Is

Tempus Fugit - Time Flies A Defense of Nobility

Well Read Baby Blue’s Manual of Legal Citation

Long Winded

Lawyer Kids

Bill & Phil’s Gadget of the Month

Guilty Pleasures

Time Waits for No Man Objection: Beyond the Scope of a Lawyer’s Son Smart Home Evolution Sweet Temptations

COMMON GROUND 4 18 18 20 27 29 30 31

Section Notices/Event Calendar Barrister Bullets Word Play Legally Weird Ask McLawyer Bench & Bar In the News Pro Bono Project The Last Word

EVENT CALENDAR & SECTION NOTICES

event

Section Notices

calendar

There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. Alternative Dispute Resolution Section The ADR Section has CLE programs planned for 2016. If you have program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Dana Holloway (643-8720). Bankruptcy Law Section The Bankruptcy Section will meet quarterly. To have your name added to the section list, please contact the KBA office at 522-6522. If you have program topic or speaker suggestions, please contact the Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like further information on the Corporate Counsel Section, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Headrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs: Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. For more information about the section, please contact Section Chairs LeAnn Mynatt (549-7000) or Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Daniel Sanders (215-2327). Juvenile Court & Child Justice Section Members of the KBA are invited to join the KBA’s Juvenile Court & Child Justice Section, formerly the Unmet Legal Needs of Children Committee. For information about the Section, please contact Joanie Stewart (215-2515). Senior Section The next Senior Section luncheon will be held at 11:30 a.m. on June 15, 2016 at Calhoun’s on the River. The featured speaker with be Bill Haltom, Lewis Thomason, who will speak about his new book “Milk and Sugar, The Definitive Guide to Seersucker.” Members are encouraged to wear seersucker to the program. If you have suggestions for speakers, please contact Chair Wayne Kline at 292-2307. Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and CLE. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Heather Anderson (934-4000) or Tripp White (712-0963).

DICTA

April ■1 ■2 ■4 ■6 ■6 ■6 ■6 ■ 12 ■ 13 ■ 14 ■ 14 ■ 18 ■ 18 ■ 18 ■ 21 ■ 22 ■ 27 ■ 28

Community Law School Community Law School ADR Section CLE Solo & Small Firm Section Fee Dispute Resolution Committee Law Office Tech Committee Functions Committee Professionalism Committee Barristers Monthly Meeting Lunch & Learn Judicial Committtee Interprofessional Relations Committee Diversity in the Profession Committee Barristers Access to Justice Committee Law Practice Today Expo Reception Law Practice Today Expo Board of Governors Meeting Barristers Volunteer Breakfast

May ■2 ■3 ■4 ■4 ■4 ■6 ■ 10 ■ 11 ■ 12 ■ 12 ■ 12 ■ 16 ■ 16 ■ 16 ■ 17 ■ 17 ■ 18 ■ 18 ■ 24 ■ 26

ADR Section CLE Access to Justice Committee Fee Dispute Resolution Committee Solo & Small Firm Section Law Office Tech Committee Law Day Luncheon & CLE Professionalism Committee Barristers Monthly Meeting Federal Bench Bar CLE KBA/Barristers Happy Hour Judicial Committtee Interprofessional Relations Committee Diversity in the Profession Committee Barristers Access to Justice Committee CLE Committee Functions Committee Board of Governors Meeting Past Presidents Dinner Knoxville Bar Foundation Dinner Barristers Volunteer Breakfast

April 2016

PRESIDENT’S MESSAGE By:

Wayne R. Kramer Kramer Rayson LLP

TOTAL COMMITMENT TO THE LAW AND THE COMMUNITY To be successful in the practice of law is not easy. The demands and challenges are many. In my view, there is no other way to practice law except with both your heart and soul. I really believe that is true. But, when we step back and reflect on what it means to be a lawyer, our commitment must be a total one, not only to the law, but also to the community. In reviewing recently the Preamble to the Tennessee Rules of Professional Conduct (the “Rules”), I was struck by several of the provisions. Those which particularly caught my attention were these: (1)

(2)

(5)

(7)

(9)

Rules require our total commitment. How we can do all of those things, I am not sure. What is clear to me, however, is that we need to be about the effort. Yes, we certainly have a duty to represent our clients. And we must do so in the best way that we can. As has been discussed in this presidential message section of DICTA before, we are both advocates and counselors. We have a unique responsibility to those we represent, but the calling goes well beyond that. Being a “public citizen having a special responsibility for the quality of justice” requires us to do many A lawyer is an expert in law pursuing a learned art in service to things on a daily basis. Those activities will be different for each one of clients and in the spirit of public service and engaging in these us. We are not all interested in the same matters, and we are not all pursuits as part of a common calling to touched by the same issues. We are in different promote justice and public good. stations of our lives, and we are in varying e must participate in ... charitable endeavors, and economic stratas with different family situations A lawyer, as a member of the legal and a wide variety of individual challenges. in any way possible, we profession, is a representative of clients, Nevertheless, the Rules are clear. To be an officer of the legal system, and a “called” is special. Do not let anyone ever say that must support efforts to make not public citizen having a special there are too many lawyers or that lawyers only only the legal profession better, but responsibility for the quality of justice. hurt rather than help. That is simply not the make our community better as well. case. When we do what our Rules suggest and ... In all professional functions a lawyer demand, we are an indispensable and critically should be competent, prompt, and diligent. important part of the community. I see it on a daily basis in the ... courtroom, in law offices, in mentoring young lawyers and more. I also As a public citizen, a lawyer should seek improvement of the law, see it in the schools, in churches, in civic organizations, on little league access to the legal system, the administration of justice, and the ball fields, in gymnasiums, at recitals, and in virtually everything that quality of service rendered by the legal profession. goes on in our local justice system and in the community. Committed ... lawyers are involved. We do not ask for recognition. We do not ask to A lawyer’s responsibilities as a representative of clients, an officer of be called “heroes.” We do not demand special treatment. What we do the legal system, and a public citizen are usually harmonious. is what is required of us, and this makes me proud.

The above selected sections from the Rules’ Preamble lay out a true “calling” for those of us who refer to ourselves as “lawyers.” Being a lawyer is not merely a job. It is not even simply a profession. It truly is in a very real way a “calling to promote justice and public good.” To take that responsibility seriously requires a complete and all out commitment. It cannot be done part-time. It cannot be done only when “we feel like it.” And to ultimately be successful, we must be doing it together. The above language from the Rules set a standard that is extraordinarily high. It is not easy to be “competent, prompt, and diligent.” It takes an extraordinary effort to successfully seek improvement in the law, access to the legal system, the administration of justice, and the quality of legal services. And we are to do all of this as a “public citizen.” Not only must we be dedicated to the law, but we must be dedicated and committed to the community in which we live. It is not possible to meet the standards reflected above if we never leave our office. We must interact with the public. We must participate in charitable endeavors, and in any way possible, we must support efforts to make not only the legal profession better, but make our community better as well. Each one of us individually and all of us collectively have the responsibility to promote justice and the public good. Whether presenting Saturday morning seminars on legal matters, volunteering for various community projects, giving a helping hand to someone in need of legal services or just providing other friendly assistance to another, the April 2016

DICTA

H E L LO M Y N A M E I S . . . M AT T H E W R O B I N S O N By: Katie Ogle Haynes Meek & Summers

It seems as though certain academic paths are more conducive to becoming an attorney than others. For local attorney and Knoxville native Matthew Robinson, his path led directly to a career in the law. Matthew majored in English at the University of Tennessee and credits this background as perfect preparation for becoming an attorney. “Writing numerous papers on a variety of topics definitely helped develop my skills for legal writing. When I started law school, drafting briefs wasn’t nearly as daunting as it could have been.” Matthew graduated from the University of Tennessee and then remained in Knoxville for law school. He began his legal studies at the University of Tennessee College of Law immediately following college graduation. During his time in law school, Matthew was involved in both the law journal and moot court programs. He wrote for the Race, Gender, and Social Justice Journal that was established in 2012 and focuses on legal developments affecting people of different races, genders, and social backgrounds. Additionally, Matthew was also active on the Frederick Douglass Moot Court Team. In this arena, he was able to develop his appellate advocacy skills, as well as continue honing his writing skills. After finishing law school, Matthew was admitted to practice in Tennessee in 2015. He immediately began practicing family law and works as a solo practitioner leasing space in the law office of Clark

Brown & Waters. Matthew works primarily in the area of child custody, but is interested in expanding his practice to include employment law and disability law. “I studied both of these fields intensively in law school and would like to be in a firm that practices in one or both of these areas.” Specifically, Matthew is interested in focusing on accessibility regulations and discriminatory practices within disability law. “I found employment law and disability law to be interesting fields because of the nuances within administrative policies and practices. I also want to work to ensure that employers and workplaces are compliant with federal laws and regulations.” Away from the law, Matthew enjoys spending time with his family, listening to R&B, and is a fan of Volunteer sports. We appreciate Matthew taking time to be interviewed for DICTA and wish him the best in his legal endeavors.

Knoxville Bar Association

LAWYERS CONCERNED FOR LAWYERS ........ to provide assistance to lawyers, law firms, and families of lawyers suffering from alcoholism, addiction, or other mental or emotional problems that impair the lawyers' ability to practice law. Free and Confidential Services Provided by Lawyers for Members of the Legal Profession and Their Families Help when you need it. Lawyers Concerned for Lawyers is a membership service of the Knoxville Bar Association. For more information, please contact Jim Cornelius at 292-2515 or John Butler at 244-3925.

DICTA

April 2016

JUDICIAL NEWS By: Sam Rutherford Kennerly, Montgomery & Finley PC

PROFILE OF TENNESSEE COURT OF APPEALS CHIEF JUDGE MICHAEL SWINEY

In January 2016 Eastern Division, Tennessee Court of Appeals Judge D. Michael Swiney of Knoxville was selected by fellow Court of Appeals judges to lead the 12 member court as Chief Judge for a one year term. Judge Swiney has served on the Court of Appeals since 1999 when he was appointed by then Governor Don Sundquist to fill the position vacated by the death of Judge Don McMurray. Tennesseans voted to retain Judge Swiney, and he has been re-elected in 2006 and 2014. The Chief Judge of the Court of Appeals is responsible for assigning appellate cases to judges, ensuring that cases on appeal move through in a timely manner, and other administrative duties. Mike's attributes were clearly recognized and approved by the other 11 Court of Appeals Judges who voted to make him the Chief Judge. He is a clear example of the goals one can achieve through hard work, intelligence and public service. Mike was born in Florida and raised in Loudon County, Tennessee. He is the youngest of three brothers. His parents did not attend college; however, like many wonderful parents wanted their children to have a better life through higher education. Brother Bernie was a banker in Loudon County and once served as the Mayor of Loudon.

April 2016

Brother Ronnie was tragically killed in an armed robbery while working as a gas station attendant. Mike was born in 1949, graduated from Loudon County High School where he played football, obtained a Bachelor of Science in Education degree from the University of Tennessee, and taught high school science in Virginia. He later returned to UT and obtained a Master's Degree in Recreational Administration and was hired as a district executive with the Boy Scouts of America working in Phoenix City, Alabama. While with the Boy Scouts he noticed most of the volunteers were lawyers and became interested in that fine profession. Mike returned to Loudon County and taught high school biology for a year before being accepted into the 1976 "summer class" of the UT School of Law. An example of Mike's work ethic is shown when he attended law school for nine straight quarters, graduated in December 1978 in the top 10% of his class, and awarded Order of the Coif. Reviewing Mike's legal career, it is apparent he is held in high esteem by members of the legal community. He was hired by the late Don Paine to clerk for the law firm of Edgerton, McAfee, Armstead & Davis, and was subsequently hired again by Don to be an associate for the same firm. Mike became a partner in that firm before leaving with Don Paine and Dwight Tarwater to form the law firm of Paine, Swiney and Tarwater. Mike also served as an adjunct professor at the University of Tennessee College of Law from 1997-2006. In 1999 he was appointed by then Governor Don Sundquist to the Court of Appeals. Mike has many attributes, the most outstanding of which is his love of family. He has been married to wife Suzann for 43 years. They are the proud parents of sons Gabe and Eli. Gabe and Eli both graduated from Brown University. After graduating, Gabe was accepted to and graduated from Harvard Law School and now is with the legal section of the US State Department. Eli was accepted to and graduated from Yale Law School and now works in the Tennessee Attorney General's office. After the boys finished school, Suzann, who has a Master's Degree in Education, returned to work and is an instructor at Pellissippi State. Mike and I have been friends since the summer of 1976 when we started law school together at the University of Tennessee. We befriended two other "summer class" law students Bill Hollows and Frank Anderson, and the four of us studied for exams and played tennis and intramural sports our entire time in law school. Studying and playing competitive sports together allowed me to observe and appreciate Mike's intelligence, many talents and calm demeanor. No one in our group had two nickels to rub together in those days and Mike's budget was further strained by having to replace frames for his glasses and fix a tooth that was knocked out during intermural basketball play. Since 1979 Mike has served his clients, our city and our state with honor and integrity. He serves with even greater distinction as Chief Judge of the Tennessee Court of Appeals, and it is my honor and privilege to call him my colleague and friend.

DICTA

OUTSIDE MY OFFICE WINDOW By: Robert E. Pryor, Pryor, Priest & Harber robertpryorjr.blogspot.com

Jr.

A TRADITION UNLIKE ANY OTHER Every year at this time I’m reminded of the importance of friendship and, more importantly, the impact a father can have on his children. I’m reminded of my father’s greatest lesson when the winter cold fades and the East Tennessee spring descends. The Destin Open is right around the corner. We call it a golf tournament, but it really isn’t. They come from Los Angeles, Louisville, and Atlanta. They fly and drive from North Carolina, Texas, and Florida. Thirty seven of us altogether, all converging upon the panhandle of Florida. There are lawyers, school teachers, and contractors. There is a songwriter, a former PGA tour golfer and a trucking company CEO. Some borrow the money for the trip while others are multi-millionaires. The common thread - we are all life-long friends. For one week every year, we are all teenagers again. We compete on the course, laugh, tell old stories, stay out late and have the time of our lives. We are brothers. I went to kindergarten with some. I pledged the fraternity with others. These men in their 40’s include boys I played football with in the neighborhood when I was in grade school, guys I partied with in a fraternity-house basement, and others I learned to play the game of golf with when I was 12 years old. We’ve been in and attended each other’s weddings. We stand in lines at parents’ funerals. Included among them are the groomsmen who stood with me when I married my high school sweetheart and the six who served as pallbearers when we said goodbye to her 8 years later. For the past 19 years we’ve made the trek to Destin during the last week of April. It is a special thing. Though it was my brainchild, I can hardly take credit. My brother, John, is three years younger than me. When I was a boy making my way into adolescence, I was constantly bothered by the little brother wanting to tag along. While trying to escape to the friends who were my age, my father always stopped me “Take your brother with you.” This daily directive ensured John’s presence in almost every aspect of my life. It is my father’s greatest gift. He taught me that friends would come and go, but that John would always be my best friend. He is a wise man, and although he was right about my brother, he was wrong about my friends ‘coming and going.’ They stuck. The result - John’s friends became my friends and vice versa. The same thing happened when Adam Priest became our ‘brother from another mother.’ Adam and his family vacationed with us growing up. He is even younger than John and was soon tagging along with us. This little tag-along became a dear friend by virtue of our fathers’ law partnership, and, as many of you know, he and I practice law together. The three of us went to Farragut High, the University of Tennessee and pledged the same fraternity. In 1997, Adam, John and I started a “tradition unlike any other” (had to steal the Master’s tagline). “The Open” steadily grew from 8 to 20 to 24. Now, thirty-two of us play golf from Thursday through Saturday. The other five drink beer and follow the golfers around the course. The winner takes home an Orange blazer, the Kline Cup, and quite a bit of prize money. The trip started as a long weekend. Now several arrive on Monday and most by Tuesday. We greet with hugs not handshakes. We’ve seen each other through tragedy and we’ve shared some of the greatest moments of our lives. During the year, through group email, we share accomplishments and reach out when we need our friends. We also rip each other apart, relentlessly, with jokes and quips that never get old. One of our dear friends had a heart attack this past Thanksgiving. He had a line of Destin Open brothers pouring out of his hospital room, each ready with a one liner to brighten his spirits. The Kline Cup is much more than a trophy. Eric Kline died when

he was 26 years old. He was our brother. He was a Hemophiliac who contracted HIV in the mid 80’s from a minor surgery. Between 1970 and the mid 80’s approximately 90% of all severe hemophiliacs contracted HIV through tainted blood products. It is a relatively unknown catastrophe. I started the Destin Open after his passing. This past year I hoisted the trophy and slid on the jacket for the first time in the company of my brothers. It was a moment I’ll never forget. As each year passes our hair shows more gray, or in some cases, continues to fall out. Our bellies get thicker. Our kids grow older. Several have had tragedy and loss, the inevitability that rain must fall in each of our lives. When the rain falls, we mourn together. When success is achieved, we celebrate together. When one falls down, the others make fun and laugh before picking him back up. Like I said, it is a special thing. My friend, Travis Hill (Destin Open Champion 2013), is the songwriter. He has had several number one hits in country music. He wrote a song recorded by David Nail called Turning Home. There are a couple of lines in the song that say it all - “I don’t know no friends like the old friends. Never seem to laugh now like I did with them…I hear their voices even though they’re gone and it keeps me turning home.” Next month, like I do every year, I’ll take a week to travel south where I’ll greet 36 of my dearest friends to celebrate our bond for the 20th straight year. I’ll take my brother with me.

DICTA

April 2016

PRACTICE TIPS By: Jesse D. Nelson Law Office of Jesse D. Nelson

FILING A COMPLAINT: “I HEREBY COMPLAIN!” It is ironic that I was asked to provide tips on drafting complaints Except in the most run of the mill cases, no case looks the same at trial because this is one part of a case I feel quite insecure about. Through as it did when your client first walked in the door. Especially as the my insecurity, however, I have identified a few considerations every plaintiff ’s counsel, oftentimes the other side possesses the documentary lawyer should entertain when drafting a complaint. evidence you need to prove your case. Personally, I want to have the First, I suggest that you identify what kind of case you have. This flexibility to alter my theory of the case as I discover new facts. But if sounds elementary because it is. But I think all litigators can agree that my complaint is too specific, my client may become locked in to a what makes a good, solid complaint in Case A may have disastrous particular assertion that, once shown to be less-than-true, could be fatal. consequences if used as a template in Case B. So to decide even in To help you decide for yourself what level of specificity you want to general terms how to draft your complaint, devote a split-second to include in your complaint, I suggest you ask yourself the following actually identifying how your complaint is going to complement (and questions: Am I in federal or state court? Are my legal claims indeed start) your case. inherently fact-specific, or does a single fact give rise to my claims? Do This segues nicely into the second tip: Figure out if the law I know who the defense attorney will be – how nitpicky is he or she? requires you to include certain information in your complaint. For Can I already prove my factual assertions are completely true, or will I example, a Tennessee statute requires divorce complaints to contain basic have to rely on someone else’s testimony or records to prove them? demographic and other personal information about the parties.1 Does my case rise or fall on a specific date or a specific occurrence, or is Similarly, the initial pleading (though my claim still viable if I use qualifying terms t sets the parameters of the technically not called a “complaint”) such as “approximately?” requesting some forms of extraordinary relief Lastly, decide what you want to litigation, represents the initial must contain a certification that the pleading include – or must have – in your prayer for showing of your legal hand, and it is the first request for such relief.2 In other relief. Be aware that if you are suing for must conform to various legal niceties. money damages in state court, you should types of cases, a law may require the plaintiff to verify the complaint under oath.3 always include a specific monetary amount in Similarly, the rules of civil procedure – both state and federal – require your ad damnum because the general rule is that you cannot recover plaintiffs to plead certain claims “with particularity.”4 more money than you ask for, ergo, if you do not ask for a specific Third, make sure you have named and correctly identified all amount you cannot receive anything. Federal court does not hold to this defendants. This tip is actually deeper than it looks. Although Rule 15 asinine rule. Also, make sure you consider whether the law entitles your allows plaintiffs to add additional claims later and those claims usually client to equitable relief. For example, in my primary practice area – relate back to the date the plaintiff filed the first complaint, the rule employment law – plaintiffs are often entitled to multiple forms of does not necessarily allow a plaintiff to name an entirely new party.5 equitable relief in addition to monetary damages. Then, after you have Also, decide who you are and who the defendant is. I do not mean specifically requested each type of relief to which your client is entitled, I a good versus evil analysis or which one of you would survive a zombie strongly recommend including the catch-all “all other forms of relief, apocalypse; I mean, make sure you thoughtfully consider issues such as general or specific, to which the plaintiff is entitled . . . .” representative capacity, vicarious liability, joint employment, and the Drafting a complaint is a scary endeavor simply due to its legal ramifications of individual versus official capacity suits. significance. It sets the parameters of the litigation, represents the initial As far as good, universal tips are concerned, this is where I leave showing of your legal hand, and it must conform to various legal you. From this point forward, the only thing I have to offer is anecdotal niceties. But once you have thoughtfully considered the most important thoughts and disputable opinions, but that has never stopped me before components and requirements of a complaint, it is like eating hot so I’ll soldier on. wings – there is no wrong way to do it. So, complain away! To me, the next part of drafting a complaint is purely a matter of strategy and experience: describing the guts of your case. If you are 1 Tenn. Code Ann. § 36-4-106(b)(1) (2016). filing in federal court, you should familiarize yourself with our circuit’s 2 Tenn. Code Ann. § 27-8-106 (2016). interpretation of the pair of Supreme Court cases known affectionately 3 Tenn. Code Ann. § 36-4-107 (2016). 6 as Twombly/Iqbal. Everyone who practices in federal court has an 4 Tenn. R. Civ. P. 9.02; Fed. R. Civ. P. 9(b). opinion of these cases and their effect on pleading standards. I am 5 See Tenn. R. Civ. P. 15.03 and Fed. R. Civ. P. 15(c)(1)(C). happy to share my opinion when Executive Director Marsha Wilson 6 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009). allows me to write the entire DICTA publication. Until then, you should just be aware that these cases require complaints to include more than bare legal assertions, so you should include as many “who, what, when, where, how” details as feasible. But here is the other side of that coin: Do you really want to include every specific fact you think you know? My advice is no.

April 2016

DICTA

AROUND THE BAR By: Kathryn Ellis Legal Aid of East Tennessee

HIGH SCHOOL MOCK TRIAL COMPETITION March Madness came to the City-County Building in downtown Knoxville a few weeks early this year! Schools from Knoxville Catholic High School, Union County High School, Clinton High School, Seymour High School, L&N STEM Academy, Jefferson County High School, and Farragut High School represented Districts 2, 3, and 4 in the competition held on February 20 and February 27. With a total of ten teams (Catholic, Union, and Jefferson each had two), there were five courtrooms running at a time during the four preliminary rounds. The nearly 100 high school students came to litigate the highly contentious matter of Ashton Stepinghuf v. Thorobern Applicance, Inc., which was a complex products liability case involving an exploding refrigerator in a horse trailer. These high school students grappled with rules of evidence and procedure, developed high-caliber litigation strategies, and encountered objections and challenges from other competitors aimed at zealously representing their own fictitious client. Year after year, these students prove that they are capable of controlling a courtroom and presenting a compelling case for why a jury comprised of local volunteer attorneys should return a verdict in their favor. Each Saturday, more than 20 local attorneys, as well as students from the University of Tennessee College of Law, volunteered their time to serve as bailiffs, scoring judges, and presiding judges for the students’ trials. The Knoxville Bar Association Barristers has a long tradition of hosting the district high school mock trial competition to provide local students the opportunity to get their feet wet in the areas of public speaking, critical thinking, and leadership development. This offers an opportunity for our bar to both support our local students and to be consistently amazed with the dedication, efforts, and talents of area high school students, as supported by the faculty, staff, volunteers, parents, friends, and loved ones from the local school. Perhaps the mock trial competition even offers a gentle reminder that the practice of law can be fun! During the four preliminary rounds, the teams were “power matched” against each other in a process intended to bring the best teams to the top. After each round, competition organizers Kathryn Ellis (Legal Aid of East Tennessee) and John Rice (Elmore, Stone & Caffey, PLLC) tallied win-loss records and total points for the teams and then matched against each other for the next round. Each team competed twice as plaintiffs and twice as defendants. Finally, it came time to determine which two teams would be competing for the championship in the final round. While Jefferson 1 was a clear leader with a perfect record, there were three teams tied for second at the end of the preliminary rounds. Clinton, Jefferson 2, and Farragut all had a record of 10 ballots won and 2 ballots lost. Unlike in basketball where ties are broken in overtime, ties in mock trial are determined by points earned over the preliminary rounds. At the awards ceremony, the Best Witness, Best Advocate, and Final Round Teams were all announced to an assembly room full of students, coaches, parents, and supporters. The Best Witness and Best Advocate awards were based on votes from the attorneys who judged each round. According to attorney Christina Magrans from Legal Aid of East Tennessee, who volunteered as a scoring judge on February 27, “I was extremely impressed by the level and quality of the students’ advocacy in the courtroom.” While dozens of students received votes in each category, the final results awarded the Best Attorney gavel to Tyler Harlow from Jefferson County High School and the Best Witness gavel to Alex Bolinsky from Jefferson County High School. After scrutinizing the points awarded to Jefferson 2, Clinton, and Farragut, the second

team advancing to the championship round was identified as Clinton High School. At the final round, Clinton represented the plaintiff and Jefferson 1 represented the defendant in front of the Honorable Greg McMillan, who took his regular spot on the bench in Knox County’s 4th Circuit Court. Immediate Past President of the KBA Tasha Blakney, Chris McCarty, and Richard Gaines served as the scoring judges for the championship round. After all of the witnesses were done testifying and all of the evidence was presented, the judges had the difficult task of naming a winner. And, the winner was . . . . Jefferson! But, don’t feel bad for the litigators from Clinton – for the second year in a row, the organizers of the state competition have offered our districts two slots in Nashville. So, both Jefferson County High School and Clinton High School will be representing Districts 2, 3, and 4 on March 18 and 19. Wish them luck!

DICTA

Jefferson County – First Place

Clinton – Second Place

Mock Trial competition heats up. April 2016

L E G A L U P DAT E By: Laura S. Hash LMU Duncan School of Law

FUNDAMENTALLY FAIR PROCEEDINGS IN PARENTAL TERMINATION CASES: A REVIEW OF IN RE CARRINGTON H. The Tennessee Supreme Court recently released In re Carrington H., wherein it addressed the constitutional rights of parents in termination of parental rights proceedings.1 In this 3-2 opinion, the Court considered, for the first time, the issue of whether an indigent parent has a constitutional right to contest a finding terminating his/her parental rights based on ineffective assistance of counsel, including the scope of review on appeal.2 This case began with the Department of Children’s Services (DCS) making allegations of dependency and neglect against Carrington’s parents. After working with the family for approximately eight years, presumably with Mother having appointed counsel at all phases, DCS filed the parental termination petition at issue in this appeal.3 During the termination hearing, Mother’s counsel actively participated in the hearing, successfully eliciting evidence that supported elements of Mother’s defense.4 However, the Juvenile Court ruled that DCS proved all three grounds supporting termination of Mother’s parental rights and that termination was in the child’s best interests.5 Mother, through appointed counsel, appealed the Juvenile Court’s findings to the Court of Appeals.6 The Court of Appeals affirmed the Juvenile Court and Mother appealed that affirmation to the Tennessee Supreme Court.7 The Court first addressed the scope of appellate review, noting that the lower court affirmed the termination of Mother’s rights based on her failure to contest one of the grounds, thus affirming termination based on the uncontested ground.8 In an effort to strengthen the efficiency and fairness with which parental terminations are reviewed on appeal, the Court concluded that appellate courts should always review each ground and finding of best interests made by the trial court, without regard for whether the parent challenged every finding.9 The Court next reviewed Mother’s assertions that she had been prejudiced by appointed counsel, who had provided deficient representation during the dependency and neglect, termination, and appellate phases of the case. This begged the question: Are indigent parents entitled to effective appointed counsel?10 The Court went through a lengthy review of the applicable legal standard and concluded that constitutional protections mandate that termination proceedings be “fundamentally fair.” However, that mandate does not permit defendant parents to challenge the effectiveness of legal counsel.11 In the absence of a Sixth Amendment right to counsel, the Court ruled that there is no right to effective assistance of counsel in parental termination proceedings, as this would allow for repeated re-examination of the trial court proceedings, causing serious harm to children.12 The dissenting opinion argues that failing to recognize a litigant’s right to effective legal counsel makes that right to counsel less meaningful and deviates from the majority of jurisdictions that have addressed this issue.13 The majority acknowledges the dissenting justices’ concerns in its opinion, but further justifies its conclusion by pointing out that every attorney has an ethical obligation to provide “competent representation” using “legal knowledge, skill, thoroughness, and promptness[,]” thus permitting litigants to hold counsel accountable to these obligations.14 The Court was adamant that, contrary to the opinion

April 2016

of the dissenting justices, the fairness of a judicial proceeding does not hinge on a litigant’s right to assert a claim of ineffective assistance of counsel, but is instead ensured through the following: 1) an elevated standard of proof and judicial involvement, 2) a requirement that both grounds for termination and best interests of child be proven to successfully to terminate parental rights, 3) a burden placed on trial courts to make specific written findings on each ground and best interests factor, 4) an allowance for indigent parents to obtain a copy of the record at no expense, 5) appointment of counsel to indigent parents, and 6) the new mandate articulated in this opinion that appellate courts review every trial court finding pertaining to grounds and best interests, without regard for whether the finding was appealed.15 In conclusion, practitioners need to be aware of a couple of issues this case may prompt. First, although it has always been permissible, even required in some instances, trial courts, opposing counsel, and litigants may become more likely to raise ethical violations against attorneys. As such, attorneys should not only adequately represent clients pursuant to ethical obligations, but also make sure to carefully document their efforts to defend parents in termination cases, should their representation come under scrutiny. Second, when appealing termination cases, counsel should brief every finding of the trial court regarding termination grounds and best interests, as all relevant findings will be subjected to review. In re Carrington H., __ S.W.3d __, No. M2014-00453-SC-R11-PT, 2016 WL 819593 (Tenn. Jan. 29, 2016). Id. at *1. 3 Id. at *4. The father’s parental rights are not issue in this appeal. Id. at n.2. 4 Id. at *5-9. 5 Id. at *9. 6 Id. at *10. 7 Id. There is no indication in the opinion regarding whether Mother’s counsel was the same attorney at all phases of the proceedings, but the opinion does indicate that new counsel was appointed for the appeal before the Tennessee Supreme Court. Id. 8 Id. at *12. 9 Id. at *13. In lieu of remanding this case back to the Court of Appeals to review each ground, the Supreme Court undertook review of each ground, affirming the juvenile court’s conclusions as to each ground and finding of best interests. Id. at *13, 23-25. 10 Id. at *10. The Court limited its review to Mother’s argument as it pertained to the termination and appellate hearing, finding that dependency and neglect proceedings are separate from termination proceedings. Id. at *22. 11 Id. at *14-16. 12 Id. at *14-19. 13 Id. at *26-27. 14 Id. at n.26. Although the Court did not allow Mother to challenge the effectiveness of her attorney’s representation, it found that Mother’s counsel provided more than adequate representation to ensure, along with the other safeguards, that Mother received a constitutionally fair hearing. Id. at *21-22. 15 Id. at *21 and n.26. 1

DICTA

NICE NICHE By: Jeremy S. Jennings Jennings Immigration Law Office

IMMIGRATION What is your primary practice area? My practice is limited to all areas of immigration law: non-immigrant visas, family- and employment-based immigrant visas, naturalization and citizenship, humanitarian relief, and removal (deportation) defense. How did you decide to become an immigration lawyer? I focused on international transactional law while in school at the University of Denver. I think DU offered one immigration law class at the time, but I never thought to take it. Having decided to move to Nashville after graduation, however, I quickly learned international transactional jobs were not a hot commodity in Nashville in 1998. Instead I took a job practicing employment law at a corporate defense firm. While the field interested me, the culture of that firm did not. A year or so later, when an attorney friend who worked at a small immigration firm informed me he was moving to California to get married, I asked him to introduce me to the proprietor. I spent the next five years there learning and practicing immigration law before moving to Knoxville to open my own practice.

What does a normal work week look like for an immigration attorney? A normal work week in my office involves lots of client consultations, document review, and government application preparation and submission. I spend a significant amount of time keeping abreast of the myriad changes in regulation, policy, and procedure by the Department of Homeland Security, the State Department, and the Department of Labor. The only court that I typically appear before is the Memphis Immigration Court, a federal administrative law court. The balance of my week is filled with all the responsibilities of running a small business. Is there anything people would find surprising about your practice?

What types of problems or issues do you typically handle for your clients? At its core, the issue I deal with is how a foreign national obtains permission from the United States to lawfully enter and remain with the appropriate authority to perform his/her desired activity. These activities can range from temporary visitor, student, or employment visas, for example, to family, employment, or humanitarian visas that result in lawful permanent residence (green card).

I also represent foreign nationals seeking to gain U.S. citizenship or U.S. citizens needing proof of the same. I advise criminal defense attorneys as to the immigration effects of criminal pleas (and attempt to mitigate the adverse effects of pleas entered without knowledge of the immigration consequence). I consult with persons without lawful immigration status to determine if there is a path to legalization and, if so, represent them through the applicable process. I represent individuals against whom the government has initiated removal proceedings and employers against whom the government has initiated I-9 compliance audits and investigations.

People outside of the field are often surprised at how difficult it can be to obtain and maintain a lawful immigration status in the United States. Country and category quotas, application backlogs, irrational policies, convoluted procedures, strict penalties and bars, and layers of federal bureaucracy frustrate the aspirations of many pursuers of the American Dream.

DICTA

April 2016

MANAGEMENT COUNSEL: LAW OFFICE 101 By:

Susan S. Davis Davis Immigration

Form I-9 Regular Internal Audits: An Ounce of Prevention Employers are required by law to maintain for inspection original Forms I-9 for all current employees. Every employer who fails to comply with the laws governing Form I-9 compliance risks facing significant fines and legal costs. Even if Form I-9 non-compliance is unintentional due to oversight, fines for “paperwork violations” can be steep depending on the state of the employer’s Form I-9 files. The time to plan an internal audit of a company’s Form I-9 files is well before the receipt of a Notice of Inspection (NOI) served by Immigration and Customs Enforcement (ICE) compelling the employer to produce Form I-9s within three (3) business days. The likelihood of I-9 correction mistakes being made during these tension-filled, pre-audit three days is much greater than if time had been taken to inspect Form I-9s routinely. Often, ICE will request the employer to also provide supporting documentation, which may include a copy of the payroll, list of current employees, Articles of Incorporation, and business license. When an ICE Agent finds technical or procedural violations, an employer is given ten (10) business days to make corrections. If the corrections are not made or are done incorrectly, a monetary fine for all substantive and uncorrected technical violations will be issued. If ICE determines the company has knowingly hired or continued to employ unauthorized workers under INA §274A(a)(1)(a) or (a)(2) (8 U.S.C. § 1324a(a)(1)(a) or (a)(2)), the company will be required to cease the unlawful activity, may be fined, and, in certain situations, executives and managers may face criminal prosecution. Importantly, a finding that the company knowingly hired or continued to employ an unauthorized worker could result in the company being subject to debarment by ICE resulting in the company’s prevention from participating in federal contracts. Unfortunately, most employers are unaware they have a problem with Form I-9 employment eligibility verification requirements until they are audited by government agents. In anticipation of an ICE audit, every company should develop a Form I-9 internal audit program. A basic internal audit program should consist of a review of a meaningful sample of the company’s Form I-9s or perhaps all Form I-9s for an initial internal audit. The review should focus on errors that routinely arise in Form I-9 completion. Below are a few of the more common Form I-9 questions I have encountered from clients. The suggested corrections were taken from I-9 Central (www.uscis.gov/i-9-central), an excellent resource for Form I-9 compliance training and self-audits. How should I communicate with my employees about the Form I-9 audit? As your employees will likely be involved in helping to correct Form I-9 errors, and you want to avoid the appearance of singling out an employee or groups of employees, it is recommended you inform all employees in writing that you are conducting a Form I-9 audit. When you discover a deficiency on an employee’s Form I-9, communicate with the employee privately and provide the employee with a copy of the deficient Form I-9 and copies of any documents used to initially

complete the Form I-9. Provide the employee with clear instructions regarding the changes needed. What if there are errors/omissions in Section 1 of the form? Because the employer can’t make changes to Section 1 of the Form I-9, you will need to have the employee correct any errors or omissions and initial and date any changes made. If the employee is no longer with the company (and you are still required to retain the Form I-9 – see the final paragraph), you should attach a signed and dated statement to the Form I-9 explaining why the corrections could not be made. What if we didn’t complete or sign Section 2 of the form? If there is missing information in Section 2 of Form I-9, the employer should enter the omitted information and initial and date the addition. If Section 2 has not been signed, then the employee/agent who reviewed the original documents should sign the Form I-9 and date with the current date (no back-dating). If the person who initially completed Section 2 of the Form I-9 is no longer with the company, the employer will need to review the original document(s) and complete any omissions before signing Section 2. How do I make corrections to the form? The government-recommended way to correct the form is to: 1) draw a single line through the incorrect information; 2) enter the correct information in an adjacent space; and 3) initial and date the information. Under no circumstances should errors be concealed (such as with correction tape or fluid) or dates be back-dated. What if there are numerous mistakes on the form or the form is missing? If the errors are numerous, you may redo the section(s) on a new Form I-9 and attach it to the old form. If entire sections of Form I-9 are incomplete (or the Form I-9 is missing entirely), then complete a new Form I-9 and attach it to the old Form I-9. In either case, a memo clearly explaining why corrections were made or a new Form I-9 was created should be placed in the file. Finally, although employers should never dispose of a Form I-9 for an active employee, it is just as important to purge all inactive Form I-9s for those employees no longer with the employer. Form I-9s should be purged for all former employees either one (1) year after the date the employee was terminated or three (3) years after the date the employee was hired, whichever date comes later. Failing to destroy Form I-9s within the outlined timeframe can subject an employer to additional fines for any errors found on inactive Form I-9s during a government audit.

About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Cathy Shuck at 541-8835. April 2016

DICTA

OF LOCAL LORE AND LAWYERS By: Joe Jarret University of Tennessee, Department of Political Science

EDWARD TERRY SANFORD, UT ALUMNUS, ASSOCIATE JUSTICE OF THE U.S. SUPREME COURT Knoxville’s Son

In the end, however, the pressure from the White House was just too much, and in 1908, he humbly accepted the appointment.

When a child was born to Emma and Edward Sanford, on July 23, 1865, little did they know that their son, Edward, would become the only UT alumnus to have served as an associate justice of the U.S. Supreme Court. A carpenter and businessman who made his fortune during the post Civil War years, Edward the elder, a proponent of education, saw to it that his son enrolled in the University of Tennessee at the tender age of fourteen. Young Edward proved himself a scholar as evidenced by the fact that he graduated at the head of his class with both AB. and Ph.B. degrees. He continued his education at Harvard University, where he received another AB. Degree, M.A and LL.B. degrees. While at Harvard he served as one of the first editors of the newly established Harvard Law Review. Sanford passed the Tennessee bar exam (having been examined by Tennessee Supreme Court Justice Horace H. Lurton) while still in law school, albeit he did not begin his legal career until he graduated 1890.1 According to researcher John H. A. Maguire, Sanford's Knoxville legal career had an interesting beginning. A Harvard graduate, Sanford was something of a unicorn, attracting a large number of persons to the Knox County Courthouse to observe him in action. In his first case at the bar, Sanford was appointed special prosecutor by the City of Knoxville to prosecute a man who had imbibed too much Christmas cheer, which manifested itself in the “shooting up” of the Imperial Hotel. Sanford obtained a guilty verdict.2 Despite a successful outcome, Sanford usually avoided criminal practice, opting rather to practice in the courts of law and equity. After several years in private practice, he found himself and his family in Washington D.C. where he accepted an offer to serve as a special prosecutor under Assistant U.S. Attorney General and future Supreme Court Justice James C. McReynolds in a series of federal cases involving violations of the fertilizer trust provisions of the Sherman Antitrust Act.3 Sanford succeeded in securing indictments against thirty-one corporations and twenty-five individuals engaged in the manufacture and sale of fertilizer in the Southeast, charging them with conspiracy to fix prices and suppress competition.4 Between his political and family connections, but more importantly his prowess as an attorney, Sanford was appointed Assistant Attorney General for the United States by President Theodore Roosevelt in 1907. The Reluctant Jurist After approximately a year on the job, the district judgeship for the eastern and middle districts of Tennessee became vacant. President Roosevelt offered the position to Sanford, who had become content with life in Washington and initially declined the position. Reminisced Sanford in 1923: “I did not want to go on the bench, for I loved the profession of the lawyer. I remember that one of the saddest days of my whole life was when I made my last argument before the Supreme Court in Washington when I knew that I would never have again that most delightful of intellectual exercises. I love it [the practice of law] still and hope that I shall always be called a lawyer, in a profession that defends the weak and gives justice among men.”5

The District Court Bench: As a district court judge, Sanford always paid extreme attention to detail, despite the fact that he inherited a full docket he was expected to master in short order. Such pressures did not do anything to convince him to lower his exacting standards. Throughout his judgeship he was conscientious, possessed of a keen sense of justice, and exhibited the same painstaking care in disposing of litigation dealing with the most humble person who came before him as he was in considering litigation involving prestigious corporations. It was common knowledge among the lawyers who practiced before him that he would write and rewrite his opinions until he got them to convey his exact meaning. "His decisions were often lenient, always sympathetic, and devoid of excessive pride; he would on occasions even reverse his own decisions.”6 The U.S. Supreme Court Needless to say, Sanford distinguished himself on the District Court Bench, so much so that in 1923, President Warren Harding, relying on the advice of Chief Justice William Howard Taft and Attorney General Harry Daugherty, nominated Sanford to be an associate justice of the U.S. Supreme Court. Considering the tenure of most U.S. Supreme Court Justices, Sanford’s seven years of service was incredibly brief. This brief tenure has confounded many a judicial scholar bent on formulating a clear and concise judicial philosophy of the man. Nevertheless, over the course of those seven years, Sanford authored an impressive 130 opinions, the most being said that he was less than rigid in his interpretation of the Constitution. Noted one historian, Sanford was of the mind that constitutional interpretations should "be adjusted by the times.”7 Sadly, Justice Sanford unexpectedly died of uremic poisoning following a tooth extraction in Washington, D.C. on March 8, 1930, just a few hours before his friend and mentor Chief Justice William Howard Taft passed away. Oliver Wendell Holmes, learning of Justice Sanford's death, called him "a faithful worker, born to charm." Justice Sanford is buried in Knoxville’s Greenwood Cemetery. 1 Ragan, Allen E., “Mr. Justice Sanford,” East Tennessee Historical Society Publications, IV (1943), 73-88. 2 Maguire, John H. A., “The Supreme Court Justice from Knoxville: The Politics of the Appointment of Justice Edward Terry Sanford.” Master's Thesis, University of Tennessee, 1990. 3 The Sherman Antitrust Act (Sherman Act, 26 Stat. 209, 15 U.S.C. §§ 1–7) is a landmark federal statute in the history of United States antitrust law (or “competition law”) passed by Congress in 1890. It prohibits certain business activities that federal government regulators deem to be anti-competitive, and requires the federal government to investigate and pursue trusts. 4 U.S. Department of Justice, Annual Report of the Attorney General of the United States for the Year 1906, (Washington: Government Printing Office, 1906), p. 9, cited in Cook, “Path to the High Bench,” p. 61. 5 “Justice E. T. Sanford, U. S. Supreme Court, Honored by Bar,” Nashville, Tennessean, February 14, 1923. 6 Burner, David, “Edward Terry Sanford, The Justices of the United States Supreme Court 1789–1969: Their Lives and Major Opinions,” 6. 7 Laska, L.L., “Mr. Justice Sanford and the Fourteenth Amendment,”Tennessee Historical Quarterly, 210-227(1974).

DICTA

April 2016

TEMPUS FUGIT – TIME FLIES By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.

A DEFENSE OF NOBILITY In the United States, fancy titles are frowned upon. Sure, it is perfectly fine to call someone “Doctor” to acknowledge the earning of a Ph.D. It is also fine to call someone “doctor” if he or she actually is a medical doctor, but that is less of a title and more of a description of what that person does as a profession. Otherwise, we stick with the basics: Mr., Ms., and the increasingly rare Sir or Ma’am. This rejection of fancy titles runs deep. Our Founding Fathers thought it was so important that they put a prohibition on granting titles of nobility in the Constitution.1 Given the context in which our country was born, it makes sense that titles of nobility would be as welcome as King George III at the first DAR meeting. But, despite Article 1’s prohibition, the legal profession has allowed one semi-noble title to flourish to this day. Its history speaks volumes about how our profession has changed over the years. The term “Esquire” originated in England as a “title of dignity” ranking somewhere above a gentleman but below a knight.2 It comes from the Old French word esquier which was the title of a knight’s shield bearer and then, during the Middle Ages, was used to identify a person who was entitled to knighthood but had not been granted full knighthood.3 In feudal times, knighthood was one of the few ways a person who was not of noble birth could obtain an interest in land (or “fief ” if anyone wants to know why that word appears in many older deeds) by his dedication and service to the Crown.4 Thus, a person bearing the title “Esquire” was not yet a knight, but someone who had dedicated his life to service of the Crown and was in the process of earning the honor of knighthood along with all of the attendant rights and duties. The title “Esquire” survived the Middle Ages and in the United Kingdom, it remains in the formal Order of Precedence5 to this day. Granted, it is second from the bottom in the Order of Precedence between “Younger Sons of Knights” and “Gentlemen,” but at least “Esquire” is on the list.6 A few titles of nobility, including “Esquire,” travelled across the Atlantic during colonial times, surviving in the charters and land grants to various nobles for the purpose of establishing colonies “in the parts of America not yet cultivated or planted . . . .”7 But with plenty of land to be owned and a lot of work to be done by one and all, a person became known less for the family in which he or she was born and more by what he or she did. And so, the title of “Esquire” came to be associated with a group of people whose profession was characterized by an air of nobility, the humility which comes from not having fully arrived, and a lifelong commitment to service, not of the Crown, but of something greater than the Crown: the rule of law to which all are subject. Today, we call them lawyers. In 1910, Justice Vann of the New York Court of Appeals wrote an opinion which contained this observation: The practice of law is not a business open to all, but a personal right, limited to a few persons of good moral

April 2016

character, with special qualifications ascertained and certified after a long course of study, both general and professional, and a thorough examination by a state board appointed for the purpose. The right to practice law is in the nature of a franchise from the state conferred only for merit. It cannot be assigned or inherited, but must be earned by hard study and good conduct. It is attested by a certificate of the Supreme Court, and is protected by registration. No one can practice law unless he has taken an oath of office and has become an officer of the court, subject to its discipline, liable to punishment for contempt in violating his duties as such, and to suspension or removal.8 I found this opinion as a law clerk, and it has been a fixture on my desk ever since. A century later, where are we compared to that standard? In 2014, a Princeton University study concluded that lawyers are generally perceived as competent professionals who are on par with prostitutes when it comes to trustworthiness.9 “They earn respect but not trust. Being seen as competent but cold might not seem problematic until one recalls that communicator credibility requires not just status and expertise but also trustworthiness.”10 For a profession responsible for speaking on behalf of others, earning respect but not trust is unsatisfactory. It certainly does not suggest the nobility, humility, and service associated with the title of “Esquire.” Nobility ought to be a part of the legal profession, not as a title – that would be unconstitutional – but as an accurate description of the way we interact with our clients, our colleagues, the courts, and the public as we practice law. U.S. Const. art. 1, §§ 9, 10. Black’s Law Dictionary 406 (1st ed. 1891). Later editions of Black’s Law Dictionary shortened the definition to, “A title of courtesy commonly appended after the name of a lawyer.” Black’s Law Dictionary 585 (8th ed. 2004). 3 Encyclopedia Britannica Online, Esquire, available at http://www.britannica.com/ topic/esquire-title. 4 See L. Kip Wheeler, Feudalism, https://web.cn.edu/kwheeler/feudalism.html. 5 The Order of Precedence is a list of various titles associated with ladies and gentlemen of rank and status starting with the Duke of Edinburgh. See Debrett’s Precedence Amongst Gentlemen in England & Wales, http://www.debretts.com/forms-address/ hierarchies/precedence-amongst-gentlemen-england-and-wales. 6 See id. 7 The Charter of Carolina, Mar. 24, 1663, available at http://avalon.law.yale.edu/ 17th_century/nc01.asp. The Yale Law School Lillian Goldman Law Library has compiled a very useful collection of electronic versions of the colonial charters and land grants of the original colonies. It is available at the following website: http://avalon.law.yale.edu/subject_menus/statech.asp. 8 In re Co-Operative Law Co. 198 N.Y. 479, 483 (1910). 9 Susan T. Fiske & Cydney Dupree, Gaining Trust as Well as Respect in Communicating to Motivated Audiences about Science Topics, 111 PNAS 13593, 13595 (2014). 10 Id. at 13595. 1 2

DICTA

HOW WILL WATSON’S CHILDREN IMPACT THE FUTURE OF LAW PRACTICE?

One night in 2011, a lot of TV viewers (including the authors) were glued to the screen watching Jeopardy. Three episodes made television and science history as IBM’s Watson, a computer with artificial intelligence, took on two of the best players Jeopardy had ever seen. Ken Jennings had the longest unbeaten run at 74 appearances and Brad Rutter had won the largest prize - $3.25 million. Man vs. Machine It was a fascinating night. Watson was in a back room with his answers piped into the studio. He couldn’t be in the room because he consisted of ten racks of ten Power 750 servers and his cooling system . . . well . . . roared a bit. He was represented at the podium by an avatar of IBM’s Smarter Planet logo, whose moving lines would turn green when he was right and orange when he was wrong. Watson wasn’t perfect – he was a little shaky on his Harry Potter knowledge but the upstart player rattled his human counterparts almost from the beginning. In the end, Watson decisively won the game with $77,146, leaving Rutter and Jennings eating his dust with $21,600 and $24,000 respectively. As the grand winner, Watson received the first place prize of $1 million. Jennings, knowing defeat was certain, appended his final answer with the words “I for one welcome our new computer overlords.” Author Nelson was transfixed and remarked to author Simek “They’re going to bring Watson to the legal sector one day – and it’s going to play hell with the practice of law.” Author Simek agreed – and this story and our thoughts about it have been simmering ever since.

IBM’s Investment in Business Sectors Watson has many children now, in many sectors. Some bear his name and some do not. If you scan IBM’s Watson website, you’ll see that Watson has moved into social services, the health industry, data analytics, wearable technology, the banking sector – and even fantasy football. IBM certainly knows that Watson’s progeny will make Big Blue a fortune and has sunk a lot of money into expanding Watson’s capabilities. It took five years to build Watson before he wowed audiences around the globe on Jeopardy. Four years later, we began to see Watson’s children in many arenas. In 2011, the Watson business unit was created, joined by 107 Watson staffers. Watson’s entourage knew from the beginning that they would tackle the healthcare industry first, but they correctly judged that any information-intensive industry (and yes, that means the legal industry) was ripe for Watson’s talents. And the team moved fast – in the first year, Watson became 240% faster. Once the size of a master bedroom, Watson was now 18 inches wide, 36 inches deep and weighed 100 pounds. The healthcare industry began to use Watson as a tool to diagnose and treat patients. There were glitches, some of them comical. After Watson was “fed” the Urban Dictionary, he answered one researcher’s query with the word “Bulls***.” The dictionary was quickly removed so that Watson would display the right business behavior. Where Watson was wrong, medical specialists corrected him. He learned – again and again. For those familiar with

DICTA

technology-assisted review in e-discovery, you will recognize the “wash, rinse, repeat” nature of teaching machines. Citi Bank began to use Watson to improve customer experiences and to let Watson decide whether potential customers were likely to repay loans and to ferret out probable cases of fraud or identify theft. And those were the early days. Watson’s Son Ross At its core, Watson is a question answering system. He (how easy it is to personify a machine!) takes a question expressed in everyday language, seeks to understand the question in detail, and then returns a precise answer to the question. The first time we learned Watson had a lawyer son was when we read news reports that IBM was moving into the legal vertical. The stories reported on the Watson University Competition, at which a group of University of Toronto students built a legal application on top of the Watson platform. The "son of Watson" was called “Ross, the super intelligent attorney”. The students placed second in the IBM contest. IBM supplied the Ross team with continued access to Watson’s cloud platform. The students created Ross by loading a huge volume of public legal documents and used the subject matter experts on their team to calibrate Watson to provide useful answers on the documents. What makes Watson so powerful is its ability to learn - so the more lawyers use it, the better it gets. Ross, by taking advantage of the natural language and cognitive computing platform

April 2016

COVER STORY

that Watson offers, can predict the outcome of court cases with a confidence rating, assess legal precedents, and suggest readings to prepare for cases. Ross, who his creators say has “gone to law school” is now being funded by Dentons, a global law conglomerate with over 6,000 lawyers. As they put it, Ross has landed a job – and they expect he “will become a senior partner in every single practice area.” You have to start somewhere. As of August 2015, Ross was learning everything there is to know about U.S. bankruptcy law. The former students are now the entrepreneurs behind Ross Intelligence. And Ross is being piloted in a number of elite law firms. As for Dentons, it has an undisclosed investment in Ross Intelligence Inc. The company will make use of the law firm’s NextLaw Labs, a project aimed at developing new technology for the legal industry. Dentons also announced a partnership with IBM to provide legal startups (like Ross Intelligence) working within NextLaw Labs access to a technology platform using IBM’s cloud computing resources. Y Combinator also has an undisclosed investment in Ross Intelligence. Pity the Paralegals and the Lawyers?

Scary Stuff from the Altman Weil 2015 “Law Firms in Transition” Survey Hold on to your hats because the stats from this survey may blow you away. Responses were received from 320 law firms including 47% of the 250 largest U.S. law firms. The survey indicates clearly that legal leaders increasingly anticipate that work handled by human beings in 2015 will inevitably be handed over to intelligent systems. When respondents were asked whether they could envision a law-centric artificial intelligence system replacing workers in their offices within five to ten years, 47 percent said paralegals could be replaced by AI in that time, 35 percent said first year associate work could be replaced, and 19.5 percent indicated that intelligent systems would be able to handle work done by third year associates within that time frame. Leaders still believe senior associates, those with four to six years of experience, will remain mostly irreplaceable. Only 6.84 percent agreed that their work could be replaced within five to ten years. Perhaps the most telling stat is that the

percentage of leaders who believed “computers will never replace human practitioners” has dropped dramatically from 46 percent in 2011, to only 20.3 percent in 2015. Final Thoughts So yes, Ross (and perhaps his own progeny) is a threat to lawyers. We see Ross as a replacement for a lot of paralegals and junior associates over time, particularly if he masters form-based lawyering and document review, which he certainly will. And if Ross should go outside of law firms, a lot of people with garden variety legal problems are going to question whether they need human lawyers at all. And here we all were, worrying about LegalZoom . . . we may have been focused on the wrong horizon entirely. The authors are the President and Vice President of Sensei Enterprises, Inc., a legal technology, information security and digital forensics firm based in Fairfax, VA. 703-359-0700 (phone) www.senseient.com

Recently, lawyer/blogger Lee Rosen wrote “Paralegals have largely been replaced by technology. If you’re still using them, then you should be carefully examining their function and looking at tech options for solving the problems the paralegals are solving now. Bring in the technology and dispatch the paralegals.” Lee is talking about case management, document management and other currently available tech tools. But if you take Lee’s position to the future, Watson would largely eliminate the need for paralegals. Without question, Watson can replace some lawyers. Who needs an army of associates to do legal research when you can just ask Watson? On the other side of the equation, there are lawyers who are irreplaceable because of who and what they know and their expertise in “custom” law – negotiating, strategic planning, litigation skills, etc.

April 2016

DICTA

WORD PLAY

barrister bullets •

•

Plan now to attend the Barristers monthly meeting on Wednesday, April 13, at 5:00 p.m. at the Bistro at the Bijou. Everyone is welcome. This is a great opportunity to get to know your fellow young lawyers. Get updates on the Barristers on Facebook at www.facebook.com/knoxvillebarristers. Everyone is welcome to join the Barristers for Happy Hour at 5 p.m. on Thursday, March 31, at Clancy's Tavern & Whiskey House at 602 South Gay Street, Knoxville, TN 37902. Please come out and have a drink or grab a bite with friends and colleagues. Happy Hour officially starts at five, but it goes until seven, so feel free to drop in when you can. This is a great opportunity to network, meet new faces, and get involved with the Barristers, so join us for the first happy hour of 2016. RSVP by clicking on March 31 in the event calendar at www.knoxbar.org. The Hunger & Poverty Relief Committee thanks everyone who participated in this year’s Teddygram Drive! The campaign donated 102 teddy bears to the Knoxville Police Department. For more information on how to get involved with upcoming projects, please contact Courtney Houpt at choupt@taylorknightlaw.com or Kourtney Hennard at khennard@londonamburn.com. The School Outreach & Law Week Committee is looking for volunteers to present the Junior Judges video to elementary school students in Knox County schools in April. This is an opportunity to increase awareness of our judicial system to this area’s youth. Please contact Courtney Read (cread@watsonroach.com) and Ashley Morgan (amorgan@wmbac.com) for more information. Please submit your nominations for the Law & Liberty Award to the School Outreach & Law Week Committee Chairs Courtney Read (cread@watsonroach.com) or Ashley Morgan (amorgan@wmbac.com). We are seeking nominees who are visible to the profession and local bar, work to advance understanding of the law in the greater community, set an example of good citizenship, donate time for volunteer work, set high professional standards, and achieve professional goals even in the face of adversity. The award will be presented on May 6th at KBA Law Day. Spring Cleaning? Make room in your closet and help others at the same time! Barristers Hunger & Poverty Relief Committee is collecting professional clothes April 4-18. Items needed are slacks & skirts, suits, blouses & shirts, dresses, ties, dress shoes. Multiple donation locations will be available including Gay Street, Main Street, law schools, and West Knoxville. Please do not donate clothes with holes, stains or rips. Women's clothing will be donated to the YWCA and Connect Ministries Career Closet. Men's Clothing will be donated to Knox Area Rescue Ministries. For more information please contact the Chairs of the Hunger & Poverty Relief Committee Courtney Houpt and Kourtney Hennard. The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. The Barristers Volunteer Breakfast Committee always needs volunteers to serve food or sponsor. The cost is $150 for sponsoring, and we need 4-5 volunteers. If you are unable to fund the breakfast, the Barristers will subsidize the cost of the breakfast. Volunteers meet at 6:15 a.m. and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30 a.m. It’s a great way to serve the community. This is a great chance to partner with members of your firm, or law school classmates or friends or use it as an opportunity to involve staff in your office too. Sign up at http://www.knoxbar.org/Job-Placement/ volunteer-breakfast-sign-up. For more information, please contact Committee Chairs Paul Wehmeier at pwehmeier@adhknox.com or Kati Goodner at kgoodner@lewisthomason.com.

By: Peter D. Van de Vate Finkelstein, Kern, Steinberg & Cunningham

“Turn a blind eye” At the naval battle of Copenhagen in 1801, the great Horatio Nelson, then Vice Admiral, was in disagreement with his superior, Sir Hyde Parker, who issued him an order to break off his attack on the enemy. While the order gave Nelson the discretion to proceed or withdraw, Nelson lifted his telescope to his blind eye so that he could not see the order. Orders in those days were signaled by flags. Nelson prevailed in the battle and his gesture of lifting the glass to his blind eye was immortalized. Nelson later remarked that since he had a blind eye, from time to time he had the right to use it.

Thank you to all who participated in the Barristers Teddygram drive. The Hunger & Poverty Relief Committee raised $295 and purchased 102 teddy bears to donate to the Knoxville Police Department. A special thanks to Dale Amburn and Jim London, with London and Amburn, who generously donated $100 towards the Teddygram drive.

DICTA

April 2016

WELL READ By: Lee T. Nutini Judicial Law Clerk, United States District Court

BABY BLUE’S MANUAL OF LEGAL CITATION across Harvard Law’s bow: Malamud wishes Harvard “the best” in “continuing to sell their Genuine Blue spiral-bound book,” noting that democracy demands that legal code be freely communicated. (Page 7). Indeed, the introduction to Baby Blue confirms that the manual is free of copyright restrictions and also challenges the users to improve upon the free “re-coded” system. The manual hopes to be just the “first step” in returning to pragmatic legal communication. Cooler still is that Baby Blue makes an important policy point: if we expect pro se or prisoner litigants to communicate with our courts, why hide the citation manual online behind a pay wall? If courts want cogent, clear legal argumentation then pro se litigants or even the low-margin solo practitioner shouldn’t have to purchase a Bluebook for nearly $40. Perhaps this is hyperbole, but it is hard to overlook the fact that many Yale Law students – including several of the Yale Law Journal’s editors – have signed a letter of support for Baby Blue and its mission. Yes, the access to justice initiative seems to have expanded all the way into politicizing the string citations of the country’s finest law journals. So what is in Baby Blue? It contains all of the information from the “Bluepages,” but with broader guidance and without the superfluous, rarely used citation rules (like how to cite the United Nations’ manuscripts). The cheekiness I referred to earlier is folded into the entire manual— callout boxes (dubbed “Indigo Inklings”) point out frustrating Bluebook precedents and clarify rules along the way. My personal favorite indigo inkling is:

You’ve probably heard that Baby Blue is the next big thing in the legal profession, which, by the way, seems to be finally entering the 21st century. If you haven’t heard of it, this column is all you need to know about the new citation manual. Let’s get a few things out of the way: Yes, it really is called Baby Blue. And, no, it is neither authorized nor affiliated with Harvard and The Bluebook. It also isn’t $38.50. Baby Blue’s Manual of Legal Citation, a production of anonymous students at NYU Law and Professor Christopher Jon Sprigman, is an open-source (read: free, online, and editable) version of a legal citation manual that hopes to topple the Ivory Tower known as The Bluebook. The best part about Baby Blue isn’t that it simplifies uniform citation rules—the best part is that it is cheeky about it. In the manual’s foreword, Carl Malamud, a leading public technology advocate, writes: We do not begrudge the Harvard Law Review Association one penny of the revenue from the sale of their spiral-bound book dressed in blue. However, we must not confuse the book with the system. There can be no proprietary claim over knowledge and facts, and there is no intellectual property right in the system and method of our legal machinery. The infrastructure of our legal system is a public utility, and belongs to all of us.

Note that many of the Internet citation rules are little more than common sense (that’s a compliment, not a dig). For example: include the URL that most directly links your reader to the authority, as you don’t want to send readers on a wild good chase through the recesses of the Internet in search of a source. (Page 58). All in all, the Baby Blue manual is smart and effective in its goal to clarify certain Bluebook ambiguities. There is some concern floating around that the Harvard Law Review Association will shut Baby Blue down, presumably because it provides a free, easy-to-share PDF copy of the only book every American law student is required to purchase. No matter whose side you take, the Baby Blue manual represents an important moment in legal writing. You may want to download or share it before it’s gone. Moreover, if users adhere to Baby Blue’s mission, the manual will be further improved by the time you read these words. I highly recommend it for any well-read lawyer. To start using Baby Blue’s Manual of Legal Citation, it is available for free at https://law.resource.org/pub/us/code/blue/BabyBlue. 20160205.pdf. The letter of support and petition penned by members of the Yale Law School is available at https://law.resource.org/pub/ us/code/blue/harvard.response.20160208.pdf. And for those interested in viewing, for example, Ropes & Gray LLP’s (Harvard Law Review’s legal counsel) request for Malamud and the NYU Law team to shut down Baby Blue, look here: https://law.resource.org/pub/us/code/blue/ harvard.response.20130718.pdf.

(Pages 6-7). Clearly Malamud and the entire Baby Blue NYU Law team have a chip on their shoulders. The foreword is also a preemptive shot April 2016

DICTA

L E G A L LY W E I R D By: Latisha J. Stubblefield Pilot Travel Centers, LLC

“But Officer….” As alert/aware/cautious drivers, we all know to be wary of fellow patrons of the road who are mindlessly swerving about the roadway or constantly drifting into lanes other than the one they’re driving in. In those situations, you know to speed up, get around them, and get as much distance between you and those drivers as possible. Because, let’s face it, whether the person is distracted, under the influence, or past his or her driving prime, the person likely shouldn’t be operating a vehicle. While there are certainly other signs of inept drivers, a driver in Roselle, Illinois has taken the cake on unabashedly exhibiting signs of drunken driving. In January of this year, officers with the Roselle, Illinois police department witnessed a car traveling down the street in the wrong direction with… wait for it … a 15-foot tree lodged in the front grille of the Lincoln car. So after hitting a 15-foot tree, which became lodged in the car’s front grille, the driver “decided” the best option was to just continue driving. With the 15-foot tree sticking through the front of the car. Hit-and-run, anyone?!? Or perhaps, more accurately, hit-and-take-it-with-you?!? Clearly the police were alerted by the driving tree and knew that something was amiss. After stopping the driver, Maryann Christy, 54, of Schaumburg, Illinois, officers noticed that the car’s airbags had also been deployed, most likely from hitting the tree. However, I’m not willing to rule out the possibility that Ms. Christy hit something else before the tree. Ms. Christy told the officers that she struck the tree somewhere in her hometown, just north of Roselle, but she didn’t quite remember where. Probably not surprising, but Ms. Christy smelled of alcohol and failed the field sobriety tests. She was arrested and charged with driving under the influence. In an attempt to be “pro-active and put something on [their] new Facebook page,” Roselle officers posted a photo of the tree-laden car as a message to avoid drinking and driving. The photo quickly went viral. However, the social media frenzied masses started questioning the authenticity of the photo, which prompted the police department to release a video of the unusual encounter, quelling any notion that this was not the real deal. Moral of the Story: Don’t drink and drive. Even more so when there is a 15-foot trees shooting out of the front grille of your car.

DICTA

April 2016

SCHOOLED IN ETHICS By:

Paula Schaefer U.T. College of Law

TRANSPLANTED ATTORNEYS AND THE UNAUTHORIZED PRACTICE OF LAW Ellen Stevens is licensed to practice law in North Carolina and recently moved to Tennessee because of her spouse’s job. Ellen has been licensed in North Carolina since March 2013. She believes her spouse is likely to be in Tennessee for only a couple of years, so she would rather not invest the time (and money) taking the Tennessee bar exam. She would like to know her options for practicing in the state if she is not licensed here. What are her options?

Conduct Rule 5.5(c) permits an attorney licensed in another jurisdiction to work as in-house counsel to a company in Tennessee or to provide services authorized by federal law or other law of this jurisdiction. If the lawyer wishes to work as in-house counsel, then the lawyer must register pursuant to Tenn. Sup. Ct. R. 7, § 10.01. Both of these options are available to Ellen in our hypothetical.

What is the unauthorized practice of law in Tennessee?

Can an attorney licensed elsewhere practice virtually in that other jurisdiction from an office located in Tennessee?

It is a Class A misdemeanor to engage in the “practice of law” or to do “law business” in Tennessee if a person is not licensed in Tennessee. T.C.A. §§ 23-3-101, 23-3-103. Further, Tennessee R.P.C. 5.5 provides that, unless another provision of the rule or other law allows it, a lawyer not licensed in Tennessee shall not “establish an office or other systematic and continuous presence” in Tennessee for the practice of law, or represent to the public that the lawyer is admitted to practice in Tennessee. Tenn. R.P.C. 5.5(b). Ellen’s challenge is to either: (1) gain admission in Tennessee without taking the bar exam; or (2) fit within a provision of the law that allows an attorney licensed elsewhere to practice in Tennessee. The possibilities are considered below. When can an attorney licensed elsewhere be admitted by motion in Tennessee? In order to seek admission by motion (rather than by examination), an applicant must (among other requirements) have been engaged in the “active practice of law” in a state in which the attorney is licensed for five of the seven preceding years. Tenn. Sup. Ct. R. 7, § 5.01(a)(3). Because Ellen has only been licensed since 2013, she cannot satisfy this rule. This is a problem faced by many attorneys in today’s mobile society. That is a reason the ABA’s Model Rule on Admission by Motion allows admission by motion after three of five years of licensed practice in another jurisdiction. While the Tennessee Supreme Court has not adopted this rule at this time, it should consider it in the future. Are the rules different for military spouses? If Ellen’s spouse is a military servicemember on military orders stationed in Tennessee or Fort Campbell, Kentucky, she may be able to seek temporary licensure in Tennessee under Rule 7, Section 10.06. There are eleven requirements that Ellen must meet to qualify under the rule, but most are easily satisfied by an attorney licensed and in good standing in another jurisdiction. There is not a requirement that she practiced for a certain length of time in the jurisdiction in which she is licensed. Are there types of legal work an attorney licensed elsewhere can do in Tennessee?

Given modern technology, Ellen might wonder if it is possible to serve North Carolina clients from Tennessee without violating Tennessee law or professional conduct rules. The answer to that question depends on whether Tennessee would consider Ellen’s conduct “the practice of law in Tennessee.” T.C.A. § 23-3-103. Under professional conduct rules, the question would be whether Ellen has “establish[ed] an office or other systematic and continuous presence” in Tennessee for the practice of law. Tenn. R.P.C. 5.5(b). On the one hand, Ellen is “practicing law in the state of Tennessee” in these scenarios. And states have traditionally expected an attorney with an office in the state to be licensed there, regardless of the clients served. On the other hand, Ellen is serving only clients from the state where she is licensed. A key reason that we require attorneys to be licensed – protection of the public – is served even if Ellen is not licensed in Tennessee. There appear to be no reported cases in Tennessee (or elsewhere) that address this scenario. But it is one that is likely to be more common in the future given technology, attorney mobility, and attorney dislike for the bar exam. The issue is likely to come to a head when an attorney in Ellen’s situation attempts to practice North Carolina law from a physical location in Tennessee for two more years so that she can satisfy the five-year practice requirement of the admission by motion rule. Tennessee Rule 7, section 5.01(c) specifically provides that years in which an attorney is engaged in the unauthorized practice of law cannot count towards the five years, explaining: “For purposes of this rule, the active practice of law shall not include work that, as undertaken, constituted the unauthorized practice of law in the jurisdiction in which it was performed or in the jurisdiction in which the clients receiving the unauthorized services were located.” Tenn. Sup. Ct. R. 7, 5.01(c) (emphasis added). It is certainly conceivable that the Board of Law Examiners might assert that while the attorney in this scenario was not engaged in the unauthorized practice of law in North Carolina, the attorney was engaged in the unauthorized practice of law in the state of Tennessee where the services were performed. Rather than waiting for litigation to resolve this issue, the Tennessee Supreme Court could address the issue by amending Rule 5.5. An amended rule could explicitly provide that an attorney physically located in Tennessee, but exclusively serving clients in a state in which the attorney is licensed, is not engaged in the unauthorized practice of law in Tennessee.

Even if Ellen is not a military spouse, there is still hope that she can practice in Tennessee without a Tennessee law license. Professional April 2016

DICTA

Find the Right Mediator!

Search the mediator profiles based on a mediator's subject area experience and the mediator's qualifications. Everything you need to select the right mediator for your case is provided including court certifications, subject area experience, training & mediation experience, and mediator notes. With all the relevant details needed to identify a mediator best suited to help the attorneys mediate, the selection process is made easy. Hourly Rates & Fees Don't mediate another case before checking out the mediator's qualifications at www.knoxbar.org.

DICTA

April 2016

LONG WINDED By: Jason H. Long Lowe, Yeager & Brown

TIME WAITS FOR NO MAN Getting old is for the birds. I’ll be the first to admit that I have never been in prime physical condition. Even at my best, I was always at least ten pounds overweight, was never the most coordinated individual and was always one of the slower runners you ever saw. Still, I always felt good and never had many complaints. I don’t know exactly when, or exactly how, but that has disappeared somewhere between the ages 35 and 44. How do I know this? It is Sunday night and I am writing this column immobile and after taking 6 aspirin in the hopes that every muscle in my body will stop aching. Let me back up and explain. My wife’s father passed away last October. It was a true loss for our family and we all miss him deeply. However, he lived a very full life and I think he knew up until the end that he had a family who loved him and of whom he could be proud. That is really all any of us can ask for. In any event, he left behind a home filled with furniture and personal items and the focus of my wife’s life for the past three months has been to agonizingly go through all of the inventory and decide what should be done with it. Saturday was “D-Day.” My wife’s brother rented a U-Haul and drove in from Nashville. The Plan was to begin early by driving the truck to our house to pick up furniture we wanted to get rid of and drive it to her father’s house. Step two was to drop off the furniture and then load the truck up with items from her father’s house that we wanted to bring back to ours. We would then, in step three, drive back to her dad’s house and load up the furniture that her brother intended to take back to Nashville. Finally, other members of the family would then come by the house and, like a plague of locusts, devour whatever was left. My first mistake came at 7:30 a.m. that morning when I carried our kids’ train table downstairs to load onto the truck. It was one of those tasks that, twenty years ago, I would have handled with ease and bravado. Now, however, the table is just large, heavy and awkward enough that it was a true adventure that ended when I dumped it into the back of the truck and felt a small, but very distinct pinch up around my neck. One of my nerves was already revolting and I knew it was not the last I had heard from him. After loading the truck up for its first trip, I was drenched in sweat and had already drunk about a gallon of water. Mind you, it was a cool 65 degrees outside and we only loaded up about 5 pieces of furniture. We made it back to my wife’s father’s house and quickly unloaded the truck. My arms were pretty rubbery at that point and my son was visibly shaken to see his father sweating so much (it’s tragic when a boy first starts to see the cracks in the superhero veneer of his father). The pinched nerve was starting to flare up and it was clear it wasn’t going to go away. I try not to be one who complains. So I soldiered on, trying to recapture the 24 year old I once was. Here’s the thing about my father-in-law: He lived to the ripe age of 83. I am glad we had him with us for so long, but a man who lives that long naturally accumulates a lot of furniture. Also, much of that furniture is from the 1950s and 60s when they did not care about the weight and, in fact, it was a mark of craftsmanship to build a kitchen table that weighed half a ton. Needless to say, my wife was attached to the heaviest pieces of furniture he owned. By the time we loaded the truck to go back to our house, I was silently praying for God (assuming there was a god. At that point I wasn’t entirely sure) to end my misery

April 2016

in whatever manner he or she saw fit. My wife and kids were no longer speaking to me. Either they respected my need to conserve all available energy, or they were collectively terrified by the wild vacant look in my eyes. Through faith and prayer, and with the help of my brother-in-law, I was able to unload the furniture at our house. At that point, I told my wife that I would meet her back at her father’s house for the last load and I proceeded to take a shower and change into fresh clothes, as I was no longer presentable to polite society. The last half hour was really just a blur. My body was numb and my mind was blank. People would just stick a piece of furniture in my hands and point me in a direction. My throbbing neck pushed out the pain in my arms and feet and I almost began to experience a runner’s high, believing I could go on forever. But it didn’t go on forever. We finally loaded the last piece of furniture in and I sat down in a chair that was likely to be where they would ultimately find my body. As the runner’s high wore off and my body temperature cooled down, the stiffness set in and I was afraid to move at all. Relatives came in to sift through the leftover furniture and were taken aback that I could neither stand to greet them nor make prolonged eye contact (either because I was so sore my eyeballs were hurting or so ashamed I could not meet their gaze – not sure which). So here we are, 24 hours later, and my body is taking its own sweet time recovering. I hope to be in the office Monday with a smile on my face, but I may be stuck in this chair, gritting it out hour after hour. In my youth, even when I did pull a muscle or over exert myself, recovery time was quick. I could be back on my feet in no time ready to go. These days, I have to block off time on my calendar to make room for extended convalescence. It really does stink, getting old. Anyway, that was my weekend, how was yours?

DICTA

LAWYER KIDS By: Webber Herrman High School Junior

OBJECTION: BEYOND THE SCOPE OF A LAWYER’S SON My name is Webber Herrman, and I am a junior at Farragut High School. I am originally from Panama City, Florida, but moved to Knoxville when I was thirteen-years-old. I play lacrosse at Farragut, and I am a part of Farragut’s Mock Trial Team. I am an Honor roll student. I have one older brother, Coleman Herrman, who is nineteen, and my parents are Paige Coleman and John Campbell. These facts are significant to who I am, but more importantly, I am a lawyer’s son. Being the son of a lawyer has many advantages. To start, since I want to be a lawyer when I am older, I have plenty of insight into what the profession is all about. I am also able to learn far more about the law than the average teenager, for my mother is able to tell me all she knows about the law and its application. Secondly, I am able to see the hard work and dedication it takes y mom’s career and to be a lawyer. It is apparent to everyone the trials one knowledge of the must face to graduate law law benefits me school, and pass the bar now in my learning of the law, exam, but those two obstacles are only the and will continue to benefit beginning of what a me when I decide to tackle successful lawyer must the vocation myself. endure. Learning from my mother’s experience in the profession, I know the difficulties of what comes after one passes the bar exam. Half the battle of becoming a successful lawyer is finding a job. My mom spent about a year searching for a job before she decided to open a non-traditional law firm. Her law firm, The Legal Walk-in Center, goes against the traditional, old-fashioned precedent set by attorneys hundreds of years ago. She was forced to be creative just to be competitive in the profession. Because of my mother’s risk in opening her business, I may be able to walk into her firm right out of law school, and that is the ultimate advantage I have. My mom’s career and knowledge of the law benefits me now in my learning of the law, and will continue to benefit me when I decide to tackle the vocation myself. On the other hand, being the son of a lawyer has many cons too. First, throughout my high school career I have been forced to be an extremely independent teenager, for my mom is the busiest human being I know. While being independent is not a bad trait, my mom has been absent from a lot of my coming-of-age life happenings. Also, my mom tends to be very stressed out, as lawyers often are, which takes away from family life. Though the modern lifestyle style has recently shifted away from traditional family time, my family’s ever-so-clashing schedules in work, in school and in our hobbies keeps us from spending time with one another. Lastly, my mother’s profession has made her take risks average families may not endure. The most prominent example being her risk in opening a firm, for this has put a great deal of stress on her, on her financial situation, and on our family as a whole. In short, there is no part of my family life that has been unaffected by my mother’s decision to become a lawyer later in life.

To conclude, the pros of being the son of a lawyer far outweigh the cons and, because the advantages I have will be in effect until I am a seasoned lawyer myself, and give me a head start in my career of choice, I’m so glad that my mom became a lawyer. Though my mom has a busy schedule, we are still very active in each other’s lives, and her schedule has made me far more independent than my peers. Being a lawyer’s son is tough at times, but my mom and her career have taken me down paths that may have gone uncharted without her help. For that purpose, I am thankful to be the son of the greatest lawyer I know, my mom.

DICTA

April 2016

B I L L & P H I L’ S G A D G E T O F T H E M O N T H By:

Bill Ramsey Neal & Harwell

Phil Hampton Founder and CEO, LogicForce Consulting

THE SMART HOME EVOLUTION We've tried smart phones, smart watches, smart shoes, even smart socks; so we thought it was time to bring this smartness home, literally. From the plethora of connected devices now appearing on retail store shelves, it is quite apparent that the era of the "smart home" has arrived. The choices are myriad and a little overwhelming, so our advice is to do like we did and take one step at a time. In other words, we decided to take an evolutionary approach and make our homes smart by introducing new devices and teaching new tricks a little bit at a time. We call this the "smart home evolution" and it is in full swing with many new exciting things coming down the pike. The first thing we have noticed about the evolving smart home market is that there are a lot of players with competing products as we witnessed at this year's Consumer Electronics Show. Iris, Wink, Insteon, WeMo, Philips are just a few of the major players in this market and all have similar product offerings. There is no law that says you have to use devices from only one brand; however, product integration (smart lights, for example) can be easier when they are all of the same brand controlled through a central hub. Probably the most common smart device that many consumers have already been using quite a bit is the smart thermostat, which provides a touch screen interface, Wi-Fi connectivity, programmable controls, and "learning" capability. The popular Nest thermostat (now owned by Google) has been around for a few years and is very easy to install and operate. The Honeywell Wi-Fi Smart Thermostat is another popular option that we have been using. It has many cool features, but to be honest, the only "smart" feature that we use quite a bit is the ability to adjust the temperature setting remotely via a smartphone app. We most certainly will get around to "training" the thermostat to predict our daily temperature preferences; but alas we are too busy programming all of our other home gadgets. Probably the simplest way to ease into the smart home "ecosystem" (we hate that word, but all the tech gurus seem to really like it, so we want to play the part) is to purchase a smart switch. This is simply a Wi-Fi-enabled outlet extension that plugs into an existing electrical outlet. We opted for the Belkin WeMo Switch because it was available on the Best Buy shelf and not terribly expensive at $39.99. So with this switch, you can make any device "smart" by plugging it into the WeMo switch. We plugged the WeMo switch into the wall outlet and then plugged a regular "dumb" lamp into the WeMo switch. We then downloaded the WeMo app which promptly found our new switch and allowed us to name it whatever we wanted. We decided on the innovative name "lamp". So now we can turn on the lamp from anywhere in the world by simply bringing up the WeMo app on our phone and flipping it to 'on'. So again the easy way to make a home "smart" is to get a number of these switches and plug regular devices (lamps, coffee makers, crockpots, radios, TVs, etc.) into the smart switches. Controlling regular home devices via our smart phone app is cool enough, but taking a step up the coolness ramp is when you can control these devices with voice commands. Oh yes! Apple has a HomeKit product that allows compatible devices to be controlled via Siri voice commands. Google also has an app that allows control of smart home devices via voice commands. Our choice for voice control of smart home devices, however, is Amazon's Echo, a gadget that we purchased a April 2016

few months ago and fell in love with. It was evident that Amazon had a hit with Echo when many smart home products from different manufacturers were touting Amazon Echo integration at CES. Our Belkin WeMo switch that we deployed first, for instance, is compatible with Echo. So instead of turning the lamp on or off via the smart phone app, we can simply say "Alexa, turn on the lamp" and like magic the lamp flips on. Now this is home automation that we can get excited about. It is our view that the Amazon Echo is going to be an integral piece in the smart home ecosystem (there's that word again, impressed?) going forward. Now that we have the basics down, it is time to continue the evolution of our homes into smart havens of cool technology. The question is what do we deploy next. We could go with the smart doorbell: Ring is a popular option here which provides a video alert on your phone when someone rings the doorbell. We could start replacing regular light bulbs in our house with smart LED bulbs which allows us to control individual bulbs via app as well as change the color of the light emitting from the bulb. We could feed our morning passion for coffee with a smart coffee maker called BrewGenie (it also plays music while it's brewing a fresh pot to wake you up). Maybe we need to invest in a smart vacuum that can be programmed to clean our floors at a certain time every day (or via a voice command). The choices are endless and growing. The key is to take it one step at a time and let your smart home evolve rather than burying you in an avalanche of new technology. To be sure, the choices that are around the corner are even more breathtaking and exciting: smart refrigerators, smart walls, smart toilets….well, we'll just leave it there. Have fun making your home smart.

DICTA

Join Bill & Phil at the KBA’s Law Practice Today Expo on April 22nd for “The Bill & Phil Tech Trunk Show 2016” at 9 a.m.

GUILTY PLEASURES By: Angelia Nystrom University of Tennessee Institute of Agriculture

SWEET TEMPTATIONS As a general rule, the Nystroms try to adopt healthy eating habits. We have been known to eschew bread for weeks on end, and pizza and fried chicken are a thing of the past in our house. But we have not always been successful when it comes to bypassing dessert. When sugar is present, our collective willpower goes out the window. I recall making a chocolate trifle a couple of years ago. It included chocolate brownies with chocolate chips, chocolate pudding, whipped cream and English toffee bits layered in a trifle bowl. Hugh called it “heaven in a bowl,” but I called it “chocolate sin” because it was sinfully good. I had made it for a dinner party, and unfortunately (or fortunately), the bowl was not empty at the end of the night. Hugh put the leftovers in Tupperware and placed them in the refrigerator. Try as I might, I could not sleep… for the leftovers were calling my name. “One bite,” I told myself, as I crept down the stairs. Sometime later, Hugh found me, sitting on the floor in front of the refrigerator, with an empty Tupperware container and a spoon. I may or may not have even licked the container clean. Needless to say, desserts are one of my guiltiest pleasures. Although I am not a fan of crème brulee or cheesecake, almost everything else is fair game. I love coconut pies and cakes, and I never pass up banana pudding. Hot blackberry cobbler with vanilla ice cream is always a hit with me. And I even like fruitcake. I am happy to report that I am not alone. Esther Bell says, “I don't just ‘like’ dessert. I LOVE dessert. Favorite part of any meal. Or all by itself. Anytime. Day. Night.” Esther continues, “Picking a "favorite" is really challenging for me. But cookies are probably the one dessert I'd wish for if I were stranded on a desert island. Wade's Bakery thumbprint cookies were the best! Wade’s was a grand and wonderful bakery in the oooooooooold Oak Ridge mall, back in the day when that mall was a robust square-shaped strip mall, and Walgreen's had a fountain counter, and life was still magical at Christmastime. This tiny girl toddled along with her mother and siblings in her frilly anklets and patent-leather shoes, because back then, going to Oak Ridge to go Christmas shopping was a BIG DEAL. And we always ended the day by visiting Wade's Bakery with everyone getting one thumbprint cookie apiece. It was SO delicious - partly because of the anticipation as we strolled by the bakery numerous times while shopping and the scents rolling out of that place were delicious beyond description! YUM!” “Alas, Wade's closed down when the Oak Ridge mall became an "indoor" mall, but the good news is, some years ago the Knoxville News-Sentinel was allowed to PUBLISH the Wade family's secret recipe for thumbprint cookies, and my mother clipped that recipe. Now it is one of my most treasured documents in the house! I make them only on special occasions because they are so tempting to me. I confess I have absolutely no control and will eat two dozen in a day without the slightest twinge of guilt! HAHA!” Esther is also a fan of a dessert that could be classified as healthful (pumpkin is a fruit, right?). “UT Bakery's pumpkin bread is in my top ten. I've loved that bread since college and always enjoy a slice whenever the opportunity arises to be close to a retail outlet that sells the pumpkin bread on campus.”

Heather Ferguson is also a fan of desserts. “Sadly, I love sugar. My favorite cake of all time is Litton’s Strawberry Cake. I could just die thinking about it right now. Of course, there are family favorites that I could think of if I took the time, but my top dessert of all time is their strawberry cake! What makes it great is the dense, moist texture of the cake; the real strawberries buried in the cake layers and the frosting, and the perfect balance of sweet and tart all in one forkful.” Cindy Wagner is also a cake fan. “I love Ham and Goodies Red Velvet Cake. I once ate the entire cake for my birthday and ate my sister’s entire cake for her birthday (in the same month..lol).” While some of us are “cake fans,” Joanie Stewart is an ice cream fan. Joanie says, “I love a caramel sundae with no whipped cream. I tell myself that since I don't get the whipped cream, the calorie count is minimal. Keith will go to Sonic and get these for me. Best. Husband. Ever. My dog, Elvis, always hopes I will share it with him. He is an eternal optimist.” Annette Winston is an “equal opportunity” dessert eater—she likes both cake AND ice cream on occasion. She also cannot say “no” to pie. Says Annette, “Lately I watch my sweets so much that I reserve my sweet calories for one very special ice cream from Cincinnati. It's Graeter's Black Raspberry Chocolate Chip. It is phenomenal. As far as around town, I have quickly come to love the bundt cakes at Nothing Bundt Cakes. But my favorite restaurant dessert has to be the coconut cream pie at Litton's.” It’s good to know that I am not alone when it comes to dessert. I try not to keep them in the house, but sometimes I cannot resist. This year, when the option presented itself, I bought 40 boxes of Girl Scout cookies (mostly Thin Mints, which are safely in my freezer). But I think I may need one—or two, or a sleeve—now. As the old saying goes, “Life is short. Eat dessert first.”

DICTA

April 2016

ASK MCLAWYER

“Ask McLawyer” is dedicated to answering questions on procedure, evidence and trial tactics in a variety of venues and subject matter. Should you have a question for McLawyer, please address the question to Ask McLawyer, c/o Marsha Wilson, KBA, 505 Main Street, Suite 50, Knoxville, TN 37902 or mwilson@knoxbar.org. Your question will then be submitted to McLawyer for potential response in this column. McLawyer is an anonymous neutral counsel dedicated to answering questions of procedure from members of the Knoxville Bar Association.

Question Presented:

If a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or a corporation or other entity fails to make a designation under Rules 30.02(6) or 31.01, or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.

Hey McLawyer, I recently took a deposition, and the opposing party referenced documents in his deposition that I wanted to see. I asked to make those documents late filed exhibits to the deposition. Opposing counsel will not produce those late filed deposition exhibits. After actually picking up the phone and calling opposing counsel to discuss the matter, the documents have not been produced. I filed a motion to compel the production of the late filed deposition exhibits. Should I have filed that motion? Discussion and Analysis: The short answer is that you probably should not have filed a motion to compel quite yet. Instead, you should have propounded requests to produce the documents you wanted under Tenn. R. Civ. P. 34. Although it is a common practice to request that documents referenced in a deposition be marked as late filed exhibits, there simply is no such thing under the Tennessee Rules of Civil Procedure. Accordingly, the Tennessee Rules of Civil Procedure do not require a party to produce documents marked as late filed deposition exhibits and provide no mechanism for the Court to enforce compliance. Specifically, Tenn. R. Civ. P. 37.01(2) provides a list of the things that can be the subject of a motion to compel:

April 2016

Noticeably absent is anything regarding late filed deposition exhibits. Unless opposing counsel agreed on the record to provide the late filed deposition exhibits or the documents referenced should have produced pursuant to an earlier Tenn. R. Civ. P 34 request, then I think most courts are going to deny your motion based on these grounds, and you will have wasted your client’s time and money. In the future, dictate Tenn. R. Civ. P. 34 requests for production of documents asking for those late filed exhibit requests right after the deposition from your notes and send them to opposing counsel to hopefully avoid any issues. Also, do not forget that Tenn. R. Civ. P. 30.02(5) of the Tennessee Rules of Civil Procedure allows you to send Tenn. R. Civ. P. 34 requests for production of documents with your notice of deposition.

DICTA

Address Changes Please note the following changes in your KBA Attorneysâ&#x20AC;&#x2122; Directory and other office records: Sharon Potter BPR # 012467 151 Major Reynolds Place Knoxville, TN 37919 Ph. (865) 673-5745 FAX: (865) 521-5162 sharon.potter@regions.com

Kyle A. Baisley BPR # 027080 Long, Ragsdale & Waters, P.C. 1111 N. Northshore Dr. Ste S-700 Knoxville, TN 37919 Ph. (865) 584-4040 FAX: (865) 584-6084 kbaisley@lrwlaw.com

Keith H. Burroughs BPR # 014255 Egerton, McAfee, Armistead & Davis, P.C. P.O. Box 2047 Knoxville, TN 37901-2047 Ph. (865) 546-0500 533 FAX: (865) 525-5293 kburroughs@emlaw.com

Julie D. Eisenhower BPR # 027777 Young Williams Child Support Services 520 W. Summit Hill Dr. Ste. 602 Knoxville, TN 37902 Ph. (865) 862-0366 julie.eisenhower@tn.gov

Jason T. Murphy BPR # 020221 Frantz, McConnell & Seymour, LLP P.O. Box 39 Knoxville, TN 37901Ph. (865) 546-9321 FAX: (865) 637-5249 jmurphy@fmsllp.com

Meghan King Bodie BPR # 029256 9724 Kingston Pike Suite 1101 Knoxville, TN 37922Ph. (865) 691-0400 FAX: (865) 691-0025 meghankinglaw@gmail.com

J. Steven Collins BPR # 012030 Spicer Rudstrom, PLLC 800 S. Gay Street, Ste 1400 Knoxville, TN 37929 Ph. (865) 673-8516 FAX: (865) 673-8972 kwilliams@spicerfirm.com

Benjamin T. Norris BPR # 028155 The Norris Law Firm, P.C. P.O. Box 397 Strawberry Plains, TN 37871 Ph. (865) 933-7081 FAX: (865) 932-3960 btn@norrislawpc.net

Thomas Miles Brinson BPR # 032007 Law Office of Miles Brinson P.O. Box 18739 Knoxville, TN 37928Ph. (865) 660-2238 milesbrinsonlaw@gmail.com

Peggy G. Comstock BPR # 017934 618 S. Gay Street, Suite 225 Knoxville, TN 37902 Ph. (865) 521-7600 FAX: (865) 521-7007 pcomstock@pgc-law.com

William W. Gill BPR # 033716 Lincoln Memorial University Duncan School of Law 601 West Summit Hill Dr. Knoxville, TN 37902 Ph. (865) 545-5312 FAX: (423) 869-6915 william.gill@gmail.com Katherine Sanford Goodner BPR # 030499 Lewis, Thomason, King, Krieg & Waldrop, P.C. P.O. Box 2425 Knoxville, TN 37901 Ph. (865) 546-4646 FAX: (865) 523-6529 kgoodner@lewisthomason.com

Wendy G. Patrick BPR # 032298 320 Wears Valley Road Pigeon Forge, TN 37863 Ph. (865) 742-2466 FAX: (865) 229-5326 wendygpatrick@gmail.com

Amy D. Williams BPR # 032438 210 South Main St. Elizabethton, TN 37643 Ph. (423) 213-2474 FAX: (423) 213-5191 williamsadlaw@gmail.com Name Change: Esther Roberts BPR # 021666 Chief Executive Officer Global Intellectual Property Management, PLLC 900 S. Gay Street, Suite 2107 Ph. (865) 525-0848 FAX: (865) 525-9450 esther@globalipam.com

W E LCOM E NEW MEMBERS THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS: Charles F. Aiken Provision Health Care, LLC

Tiffany DiIorio U.S. Trustees Office

Becky L. Jacobs U.T. College of Law

Joanna R. O'Hagan Quist, Cone & Fitzpatrick, PLLC

Sarah C. Atkinson

Douglas L. Dutton

Renee Quinn

Jason K. Baril Ogle, Elrod & Baril, PLLC

Casey H. Field

Miriam Johnson Knox County District Attorney General's Office

Jonathan M. Blanchard Pitts & Lake, P.C. John M. Boucher Jr. Troy L. Bowlin II The Bowlin Law Firm, P.C.

Eliza E. Fink Lincoln Memorial University Duncan School of Law

Jerry K. Joseph Pitts & Lake, P.C. Nathanael P. Kibler Baker, Donelson, Bearman, Caldwell & Berkowitz

Jason Edward Fisher Kramer Rayson LLP

Matthew R. Knable

Michael D. Fitzgerald University of Tennessee

Stephanie Dorsey Debusk DeRoyal Industries

Angela N. Snyder Costner & Greene

Allison M. Major Sheri A. Fox Legal Aid of East Tennessee, Inc. Jeremy R. Goolsby London Amburn

Jess E. Maples Leitner, Williams, Dooley & Napolitan, PLLC Elizabeth L. Marsh Meares and Dillard

Crystle L. Carrion Anna East Corcoran The Law Office of Anna East Corcoran

Stacey C. Sisco McGehee & Cole, P.C.

Travis E. Stanley

Jeremy P. Floyd

Kent M. Carringer

Charles G. Shepherd Woolf, McClane, Bright, Allen & Carpenter, PLLC

Rondeau T. Laffitte

Justin A. Brackett Amanda G. Butterworth Baker, Donelson, Bearman, Caldwell & Berkowitz

Adam Selvidge

Nancy S. Harr U.S. Attorney's Office

Megan R. Newman Knox County Public Defender's Community Law Office

William B. Hickman Nakeisha C. Jackson Knox County Public Defender's Community Law Office

DICTA

Melissa Loney Stevens Baker, Donelson, Bearman, Caldwell & Berkowitz Matthew T. Tuck McGehee & Cole, P.C. Shelby R. Ward Tennessee Clean Water Network Nick A. Williford

Jennifer K. O'Connell Ogle, Elrod & Baril, PLLC April 2016

BENCH AND BAR IN THE NEWS This “members only” column is published each month to share news and information among KBA members. Submissions should be limited to 75 words and will be edited for space and other considerations.

CLE SPEAKERS Do you know someone who would make a great speaker for one of KBA's seminars? Let us know about it, or submit a proposal of your own. Contact Tammy Sharpe at tsharpe@knoxbar.org or 865-522-6522. NEED GUIDANCE IN A SPECIFIC PRACTICE AREA? One of the best kept secrets of the Knoxville Bar Association is our Mentor for the Moment program. We want to let the secret out and make sure that our members use this wonderful resource. It's really simple to ask a question of our helpful volunteer mentors. Log in to the members' only section of www.knoxbar.org or check out the list in the KBA Attorneys’ Directory and begin your search! Our easy-to-use website allows you to search by last name or by subject area experience.

FOLLOW THE D.A’.S OFFICE District Attorney General Charme Allen invites all members of the Knoxville Bar Association to go online to keep up with the activities of the District Attorney General’s Office. You can visit the D.A.’s Office website www.knoxcounty. org/dag to view our calendar of events and to receive information about our Office and the criminal justice system, and you can also “Like” our Office’s page on Facebook and “Follow” our Office on Twitter.

OFFICE SPACE AVAILABLE: A perfect office space available with • signage on Peters Road. The office has just been renovated and ready for new occupants. Space offers room for two private offices and reception area and other area for a work station. The

location is visible from Kingston Pike and would make a great office for an accountant, insurance agent, attorney or mortgage broker, engineering firm or anyone who would like high visibility. Offers a carport for your parking along with a paved parking lot. Carport also has a storage closet. Rent: $900.00 per month. Contact Karen Emmert at 356-5049. •

Office Space for Lease: Fountain City: 5344 N. Broadway. Approximately 2,000 sq ft. *Will divide space * One level. Across from Fountain City Park. Space on either side occupied by long-term law firms. Present floor plan accommodates four offices plus a conference room and a reception area. Two (2) Year minimum lease required. Great for satellite office. Qualified prospects call: 805-1911.

BEST EDUCATED BAR = FREE EDUCATION The KBA wants to help our members become better lawyers - more informed, more educated, more effective and more satisfied practitioners. KBA members have the option of watching any pre-recorded online CLE program for FREE. More than 85% of our live CLE programs are recorded and are available on the KBA website for viewing. Members who wish to receive CLE credit will be required to pay for the online CLE program but if you just wish to view the program for educational purposes, feel free to watch the recording and even download the course material at no charge. This is a great opportunity for newly licensed attorneys and law student members who wish to view programs on a variety of topics that will help as they settle in to new practice areas. It is also a great chance for members who miss a live program or have to leave early, to watch the program for FREE. The registration process is simple. Go to www.knoxbar.org and click on the CLE tab. Search by course type "Online Videos". Complete the normal registration process and choose the payment option "KBA MBR - No CLE Credit." AFFILIATED ORGANIZATION The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, April 14, 2016, at 12:00 pm. in the U.S. Attorney’s Office, Knoxville, Tennessee. Wayne A. Ritchie, II of Ritchie, Dillard, Davies & Johnson, P.C. will be presenting the topic of Ethics. The presentation will last one hour. A lunch buffet is available at the cost of $12/person with reservations. Please contact Kati Wheatley, ACP at president@smparalegal.org or (865) 985-0706 for additional information and/or lunch reservations. April 2016

DICTA

Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System

PRO BONO PROJECT

By: Terry Woods Project Director

TENNESSEE FAITH & JUSTICE ALLIANCE A recent study of the legal needs of low-income Tennesseans revealed that these members of our community encounter a wide variety of civil legal problems every year.1 Their problems included conflicts with creditors, collecting wages, custody disputes, auto accidents, handling an estate, and a variety of other issues. One of the most interesting parts of the survey involved what low-income families did to get help with the issue they considered their most significant legal problem. Over 60% of them did nothing. They gave a lot of reasons for not trying to find help: • • • • •

“That’s just the way things are” or “Nothing could be done.” Fear of retaliation Didn’t want anyone to know about the problem Couldn’t afford help Didn’t know where to go for help

Of the 37.1% of low-income respondents who did try to do something about their legal problems, fewer than half sought help from a lawyer. In focus groups, the surveyors explored in more depth the reluctance to ask for a lawyer’s help: The cost of legal assistance and the lack of resources were the reasons most commonly given by the focus group participants. Lack of trust in the judicial system and legal professionals also emerged as significant reasons for not seeking advice. A majority of participants reported having some experience with an attorney and the judicial system and many were left with feelings that they had not been treated fairly. There was a pervasive attitude that “you get what you pay for” and those with resources were favored by the system.

In the words of one participant, “I am not a stupid man but I don’t have a great deal of education and I don’t understand those big words being thrown at me. Why can’t they explain things in a way that everyday folks can understand?” If lawyers couldn’t help, who could? It turned out that a lot of survey respondents turned to their faith communities. Even before this report was issued, the Tennessee Access to Justice Commission anticipated that collaboration between lawyers and faith-based groups could remove some of the access-to-justice barriers facing low-income persons; so the Commission created the Tennessee Faith and Justice Alliance. As part of this effort, Legal Aid and various community partners facilitated a meeting for local religious leaders and offered training to help them identify their congregants’ legal problems and the resources available to help. From the beginning, Ian Hennessey and Bill Coley have been instrumental in building a coalition of faith leaders in the Knoxville area and they proposed conducting legal advice clinics at places of worship to make give people a less intimidating environment to talk to a lawyer. The first Faith and Justice Legal Clinic will be held on Saturday, May 7, 2016, at First Baptist Church, 510 West Main Street, in conjunction with Legal Aid’s regular Saturday Bar Clinic. We will move Saturday Bar to First Baptist that day for our regular Saturday Bar volunteer lawyers and law students to meet with Legal Aid clients and participants in the Faith & Justice Alliance will invite congregants from their churches, synagogues, and mosques to bring their legal questions as well. Since this is the inaugural clinic, we can’t predict the number of clients who will attend. But we would like to recruit at least a dozen lawyers in addition to regular Saturday Bar volunteers to participate. If you are willing to help make the Faith & Justice Alliance work, please contact us.

That doesn’t mean that they believed that a lawyer couldn’t help: They reported they had suffered from feelings of anxiety and felt they would have benefitted from someone taking the time to explain how the system worked. This would have allowed them to make well-informed decisions.

Terry Woods Bill Coley Ian Hennessey

865-384-2175 865-292-2307 865-637-0203

twoods@LAET.org bcoley@hdclaw.com ihennessey@londonamburn.com

The full report is available through the Tennessee Alliance for Legal Services at www.TALS.org.

Still, past interactions with lawyers created a problem: Many reported previous experiences where they did not feel their legal representative had spent adequate time with them to fully understand their situation. ....

Thank you to all of the other lawyers who offered their time in the service of others by accepting or consulting on new cases or participating in Saturday Bar, the OP Clinic, Detainer Court, mediation, or in any other way since publication of the last list in DICTA: Brenda Brooks Emma Drozdowski David Gall Maria Gillen

Carolyn Gilliam Jim Hickman Lindsey Hobbs Jason Long

David Luhn Ian McCabe Ken Miller Andrew Pate

Mital Patel Laura Rudder Lynn Tarpy Paul Wehmeier

Dave Yoder

The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 502 S. Gay Street, Suite 404 • Knoxville, TN 37902 phone (865) 525-3425 e-mail: TWOODS@LAET.ORG fax (865) 525-1162

DICTA

April 2016

Q: A:

THE LAST WORD By:

Jack H. (Nick) McCall

In the September 2014 DICTA, we first asked the question: “What famous persons/public figures have you encountered, and how did you run into them?” Here is the latest saga of random, happenstance, or just weird, encounters with the “high and mighty.” RANDOM BRUSHES WITH CELEBRITY AND THE RICH AND FAMOUS, PART TWO

Ed Summers, Haynes, Meek & Summers: A long-time friend in town, Jim Boruff, was a pilot who, for a period of time, flew country music stars to and from their shows. Among them were Merle Haggard and George Jones. About 15-20 years ago, I flew with my friend Jim to Evansville, Indiana to a George Jones concert. The next morning he flew George back to East Texas. I had an enjoyable flight playing poker with George Jones, except for the $80 that I lost to him. A delightful, down-to-to earth man. Terry Woods, Legal Aid of East Tennessee: In 1990, I was with a friend in an Indian restaurant in Chicago. We were both struggling with the menu when a Indian man and his girlfriend sat at the next table and graciously helped us choose a meal. We combined our tables to share dinner, whereupon our new friends imbibed more than a few alcoholic beverages. Around the time the man had gotten rip-roaring drunk, a large group of men dressed in black suits and bowties entered the restaurant. The Indian man said, “There’s Louis Farrakhan, the most dangerous man in America. Let’s meet him.” Mr. Farrakhan was very gracious, as shown in the attached photo. Rob Frost, Arnett, Draper & Hagood, LLP: Long story short: both my late grandfather and my late father were concert promoters. From decades of them having shows all over the South and being in that profession, I’ve had lots of interactions with some artists. Here are some of them:

• • • •

• Sound checks (pre-concert warmups) for Billy Squire, Ratt, and other bands at Auditorium Coliseum in the 80s. Come to think of it, the ringing in my ears from the Billy Squire concert probably ended last week. For sound checks, it’d be me, a few friends and the band. • For Ratt/Billy Squire: it was festival seating, meaning there are no seats; as soon as the doors open, fans rush in. Since we were already in for the sound check, when the doors were opened, we saw people jump probably 12 feet (or more) down to the floor of the Coliseum and then run to be at the front of the stage. So for the opening act, every time Ratt’s lead singer came close, we'd get sandwiched between the surging fans and the fixed wall at the base of the stage. We tried to turn round and round (coincidentally, the title of Ratt's one hit song ) to escape, but we couldn't until Ratt was done. REM: their final practice warmup shows before they went on tour. Before REM headed out on tour, they’d put together their show, set list, lighting, etc. Some friends and I would be the entire audience. Luciano Pavarotti: before he performed at Thompson-Boling Arena, he warmed up at the Tennessee Theater. He sung to me and my girlfriend (now, wife). Liberace: the Regas would host post-concert private meals with Liberace and my family. Scott Thorson was there too (Liberace’s partner, but he wasn’t an artist). Liberace would go antiquing with my mother in different cities. Using my father as a straw man, he also tried to buy an antique here--the L&N Station (yes, the building)-- but he was outbid on it. In no particular order: John Schneider, a/k/a Bo Duke of the “Dukes of Hazzard;” Anson Williams, a/k/a Potsie on “Happy Days”; the Indigo Girls; Robert Palmer; the Preservation Hall Jazz Band; Dwight Yoakum and his band; Lyle Lovett; Carol Channing; Mitzi Gaynor; Debbie Reynolds; Mickey Rooney; Don Knotts; Arlo Guthrie; Butterfly McQueen; Roger Williams; Ferrante and Teicher; Andy Williams; Hal Holbrook; Dixie Carter; Ann Miller; Barbara Eden; Tony Randall; Tim Conway and Harvey Korman; Louis Grizzard; David Copperfield; Harry Blackman; and Dick Van Dyke.

I also met E. Howard Hunt, a Nixon White House “Plumber.” He was friends with my late aunt and uncle in Miami. I enjoyed a few meals with him over the years. Lastly, through the same late aunt and uncle: Joe Frechette, the head of security for the Miami Hurricanes football team during its NCAA rule-breaking, game-winning heyday (think of when the football team got off the plane in Tempe wearing camo; Joe was right there with Jimmy Johnson). When visiting, I would attend a weekly lunch with retired FBI agents and other law enforcement officials in Miami. Joe regularly attended. A couple of years ago at lunch, Joe’s son (who didn’t know I was a UT alumni) was telling everyone about how they all got to go to the Sugar Bowl with his dad and the team when they took on the Vols. They then discussed how the Vols wiped the floor with the Hurricanes, and hearing “Rocky Top” played so much by the Pride of the Southland Band that they couldn’t get “Rocky Top” out of their heads for weeks. ☺ Donna Davis, Butler, Vines & Babb, P.L.L.C.: My husband and I were traveling with five other UT alumni, including Frankie Wade, formerly a KBA member, in South Africa. We were seating in the waiting room of the Johannesburg airport, waiting to fly to Hoedspruit for the safari portion of our trip. I happened to look over my shoulder, and there stood Ted Koppel. Without thinking, I got up, walked over to him and said, “ I do believe you are Ted Koppel.” He laughed and told me he believed he was indeed Ted Koppel. After a good laugh I introduced myself and we proceeded to have a very nice chat. He and his wife were heading on safari also and acted like they were our next door neighbors and not celebs. I have the photo to prove my story, but you will have to look at the other 1,000 from the trip in order to see it. It is the prize slide show finale! Editors’ Note: If any DICTA readers would like to contribute an account for a Part 3 “Last Word” in this series, let Nick know.

“The Last Word” column is coordinated by KBA Member Nick McCall. If you have an idea for a future column, please contact Nick at nick.mccall@gmail.com. April 2016

DICTA

Prsrt Std U.S. POSTAGE

PAID P.O. Box 2027 Knoxville, TN 37901

KNOXVILLE, TN PERMIT NO. 652