DICTA.April 2018

Legal Update: When a True Man Acts Unlawfully: State v. Perrier Reshapes Self-Defense Law in Tennessee . . . Page 11 Management Counsel: Law Practice 101

Health Law Update: The Employer Mandate Today . . . Page 13

A Monthly Publication of the Knoxville Bar Association | April 2018

U.S. SUPREME COURT TO RELEASE EPIC DECISION ON MANDATORY ARBITRATION OF EMPLOYMENT DISPUTES

Tennessee Attorney General

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DICTA

April 2018

In This Issue

Officers of the Knoxville Bar Association

Cover Story 16

President Keith H. Burroughs

President Elect Wynne du Mariau Caffey-Knight

Treasurer Hanson R. Tipton

Immediate Past President Amanda M. Busby

Secretary Cheryl G. Rice

KBA Board of Governors Charme P. Allen Maha Ayesh Jamie Ballinger-Holden E. Michael Brezina III Kathryn St. Clair Ellis

Stephen Ross Johnson Elizabeth K.B. Meadows Mary D. Miller Carrie S. O’Rear T. Mitchell Panter

M. Samantha Parris Robert E. Pryor Jr. Mikel A. Towe

The Knoxville Bar Association Staff

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7

Jonathan Guess Database Administrator

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

An Update On Litigating Arbitration Clauses In Nursing Home Liability Cases

When a True Man Acts Unlawfully: State v. Perrier Reshapes Self- Defense Law in Tennessee

Health Law Update: The Employer Mandate Today

The Paper-Light Office

Making Decisions at Trial: McCoy v. Louisiana and Ineffective Assistance of Counsel

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Volume 45, Issue 4

Dicta

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.

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 Watson (522-6522).

Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Elizabeth B. Ford Joseph G. Jarret F. Regina Koho David E. Long

Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short

Managing Editor Marsha Watson

KBA Executive Director

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

April 2018

21

8

14

20

Adelyn Bryson LRIS & Membership Assistant

DICTA

Judicial News

11

Lacey Dillon Programs Administrator

President’s Message

Members give 110%

Catching up with new Claims Commissioner Bill Young

19 Tammy Sharpe CLE & Sections Coordinator

U.S. Supreme Court to Release Epic Decision on Mandatory Arbitration of Employment Disputes

Critical Focus

13

Marsha S. Watson Executive Director

April 2018

24

25

Practice Tips

Legal Update

Management Counsel: Law Practice 101 Productivity Pointers Schooled in Ethics

Conventional Wisdom Outside My Office Window

The Power of Song

Life & Law in Harmony

The Power of Choice

Of Local Lore and Lawyers

Marguerite Kelly Lanham: Pioneering Lawyer, Advocate, and Activist

Hidden Knoxville

The Savage House and Garden

Well Read

Book Review:

Going All-In on Diversity and

Inclusion: The Law Firm Leader’s Playbook

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27

28

Your Monthly Constitutional

An Encounter with Dr. Death

Long Winded

A Matter of Perspective

Bill & Phil’s Gadget of the Month

Satisfying Our Drone Envy with the DJI Mavic Pro

Common Ground 4 6 23 29 30 31

Section Notices/Event Calendar Bar Hopping Barrister Bullets Bench & Bar In the News Pro Bono Project Last Word

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event

EVENT CALENDAR & SECTION NOTICES

Section Notices

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 will be planning regular CLE throughout the year. If you have program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Bob Stivers (386-1630).

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. The Section is partnering with Legal Aid of East Tennessee, with the support and involvement of United States Bankruptcy Judge Suzanne H. Bauknight, to create a Pro Bono Debt Relief Clinic to provide pro bono legal services to income eligible consumer debtors. The next clinic will be held on May 5, 2018, from 9:30 a.m. to 12:00 p.m. and will be held at the Knox County Public Defender’s Community Law Office. LAET staff will screen potential clients and give instructions to complete a questionnaire and bring it along with tax returns and pay stubs to the clinic.

If a client qualifies for and desires to file a bankruptcy petition, during the clinic, the volunteer attorney and client will schedule a follow up appointment to move forward with a case. If you are interested in participating, 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 to get involved, 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. If you would like to know how you can get involved or have suggestions for CLE topics, 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 Ron Mills (215-2050).

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 Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440).

New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2016 will automatically be opted-in to the section. The goal of the section is to provide programming for new lawyers, including educational opportunities, social/networking events, listserv, and e-community with a comprehensive file-sharing system. Events are planned for the last Monday of each month. For information about the Section, please contact Section Chairs Liz Anne Bowden (6371980) or Sam Louderback (546-0500).

Senior Section The KBA Senior Section will meet next on Wednesday, March 28, 2018 at Calhoun’s on the River.

The program title is “Barbecue and the Meaning of Life: A Guide to the Great Barbecue Joints of America” and will feature Vince Staten, Metro Columnist for the Kingsport Times-News. The luncheon will be held from 11:30 a.m. to 1:00 p.m. The price includes an entree, vegetable, salad and beverage. Please indicate your choice of grilled shrimp or chicken teriyaki. Register online by clicking March 28 in the Event Calendar at www.knoxbar.org. 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 offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. To have your name added to the section list, please contact Section Chairs Tripp White (712-0963) and Patrick Slaughter (637-6258).

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DICTA

April

calendar

n 2 ADR Section CLE n 3 Law Office Tech Committee Meeting n 5 Interprofessional Relations Comm.

Meeting n 7 Faith & Justice Legal Advice Clinic n 10 Professionalism Committee Meeting n 11 Veterans Legal Advice Clinic n 11 Barristers Meeting n 12 Expo 2018 n 13 Expo 2018 n 16 Diversity in the Profession Committee Meeting n 18 Board of Governors Meeting n 19 Lunch & Learn n 19 Barristers Bowling Event n 26 Volunteer Breakfast n 30 New Lawyers Section Event

May n 1

Law Office Tech Committee Meeting

n 1 n 3 n 5

KBA & Barristers Summer Fun CLE Law Day Luncheon Pro Bono Debt Relief Clinic

n 7

ADR Section CLE

n 8

Professionalism Committee Meeting

n 9 Veterans Legal Advice Clinic n 9 Barristers Meeting n 10 Lunch & Learn n 10 Judicial Committee Meeting n 11 Circuit Court Bench Bar CLE n 16 Board of Governors Meeting n 16 Past Presidents Dinner n 17 Barristers Social Hour n 21 KBA & New Lawyers Section Pop Up

Yoga & Social Hour n 21 Diversity in the Profession Committee Meeting n 22 CLE Committee Meeting n 26 Volunteer Breakfast

Mark Your Calendar Law Day Luncheon May 3, 2018 April 2018

PRESIDENT’S MESSAGE By: Keith H. Burroughs Egerton, McAfee, Armistead & Davis. P.C.

MEMBERS GIVE 110%

My message this month is not about achieving a fundraising goal.

Rather, it is to share the story of some of the outstanding work that our Bar Association has accomplished through the expenditure of energy, effort and intellect offered by members of the KBA in committee service.

Already this year, the KBA Professionalism Committee, co-chaired

by Chancellor John F. Weaver and Garry Ferraris, has tackled two proposed Supreme Court Rule changes. The first was in response to the Tennessee Supreme Court’s Invitation for Comment to a Petition filed by the Tennessee Board of Law Examiners (“TBLE”) with the Supreme Court requesting consideration of adoption of the Uniform Bar Examination (“UBE”) beginning with the examination in February of 2019. The TBLE Petition noted that lawyers are more mobile than previously, and that multi-jurisdictional and cross-border practice is more common today, especially in Tennessee which borders more states than any other state in the Union. As of the time of the filing of the TBLE Petition, twenty-eight jurisdictions had adopted the UBE and three others were actively considering adoption. Nine of the states utilizing the UBE also had adopted a pre-admission local law component and ten jurisdictions require a mandatory post admission law course. The TBLE Petition requested the Court consider a mandatory, post admission local law component but left open the details of such mandatory educational component for further consideration and determination by the Court or other Commissions.

The Professionalism Committee took up this Petition for consideration, review and reporting to the Board of Governors. After thorough consideration, the Professionalism Committee presented a detailed report to the Board with the recommendation that the Board support the Petition and proposed amendments but with the added emphasis that there should be a specific pre or post-admission CLE type educational requirement included in the Rule change to ensure that attorneys entering the practice in Tennessee, whether seeking admission directly from a Tennessee Law School or after having been admitted and/or practiced law in another state, will have certain familiarity with Tennessee law specifically. The Board of Governors adopted the recommendation of the Professionalism Committee at its January 2018 meeting and has since communicated that recommendation to the Tennessee Supreme Court.

The Professionalism Committee next moved on to consider the request of the Tennessee Supreme Court for comment on a Joint Petition filed by the Tennessee Board of Professional Responsibility (“BPR”) and the Tennessee Bar Association (“TBA”) to adopt a new Tennessee Supreme Court Rule 8, RPC 8.4(g) and comments thereto prohibiting discrimination and harassment by attorneys. After hours of consideration of the proposed Rule addition and an extended Committee Meeting at which Lucian T. Pera, TBA President, was present and participated, the Professionalism Committee recommended that the Board of Governors communicate to the Supreme Court that it supports consideration of the proposed new Rule but with several revisions to the language requested for adoption in the Joint Petition of the BPR and TBA. The revisions recommended by the Professionalism Committee would limit the Rule’s applicability to speech on matters of public concern in particular forums in two ways. First, the Committee recommended that the Rule not apply to conduct protected by the First Amendment as it relates to a lawyer’s “private sphere” where personal opinion, freedom of association, religious expression and political speech is protected by the April 2018

First Amendment. Second, in an effort to minimize the risk that lawyers will have to defend complaints lacking merit the Committee suggested modifying the proposed subjective standard for enforcement of the Rule in the comments to the proposed Rule to a higher objective standard that requires that the discrimination or harassment by a lawyer in violation of the new paragraph be “severe or pervasive” in an effort to minimize the risk that lawyers will have to defend complaints lacking merit. Upon consideration of the Professionalism Committee’s recommendation to the Board of Governors, the Board of Governors adopted the recommendation at its February 2018 meeting and has filed its comment with the Tennessee Supreme Court on behalf of the Knoxville Bar Association.

The Professionalism Committee is one of the most active committees of the KBA and one that often faces challenging questions with very short deadlines in which to evaluate, consider in committee session and make a recommendation to the Board of Governors as to whether any action should be considered. With the Committee’s assistance, the KBA is able to respond to all requests for comments to proposed Rule changes by the Tennessee Supreme Court, allowing our Bar an active voice concerning changes that directly impact the profession we practice and the rules that govern us.

Another Committee that is actively at work through most of each year is the Law Office Technology and Management Committee.

Co-chaired by Robyn Jarvis Askew and Steven Ross Johnson, this Committee has been diligently at work since October of last year planning for the 2018 Law Practice Today Expo. The Expo will be held on Thursday afternoon, April 12 and all day Friday, April 13.

The Committee has assembled an excellent faculty of speakers and topics and has worked tirelessly to finalize the arrangements for this award-winning Expo. For only $175.00, members can choose from twenty-two continuing legal education sessions to earn up to 8 hours of dual CLE credit with an all expo pass, including a noon-time judicial roundtable luncheon with special guest speaker Hallerin Hilton Hill.

The programming this year is second to none and is extraordinarily timely for both law practice management and technology issues. If you have not signed up, please do so because this program almost always sells out. Thanks to the Committee for your hard work in developing another extraordinary program that is sure to please all in attendance.

The volunteer efforts of our members and the committees and sections on which they serve make our Association the very best it can be. Our members truly give 110%.

DICTA

5

BAR HOPPING By: Brady Cody Lewis Thomason

Bar Hopping highlights one of the many beautiful courthouses around the State. The trick? It is up to you to figure out where. For the first time, we had no winners last month. Since I know lawyers love a challenge, I’m bringing last month’s photo back for a repeat performance and will add one hint – you better look out for this courthouse because it rocks.

Think you can name this courthouse?

Email me at bcody@ lewisthomason.com with your answer. Correct answers will receive a shout-out in the next issue of DICTA. Check back next month for the reveal and a list of the big winners. As a bonus incentive, all winners will be entitled to one (1) joke from Chris McCarty. (Author makes no promises and/or guarantees that the joke will be funny. No refunds.).

Have a photo that you would like to submit? Send me an email and have it featured in an upcoming issue.

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DICTA

April 2018

JUDICIAL NEWS By: Hanson R. Tipton Watson, Roach, Batson, Rowell & Lauderback, P.L.C

CATCHING UP WITH NEW CLAIMS COMMISSIONER BILL YOUNG

On June 20, 2017, Tennessee Governor Bill Haslam named William A. (“Bill”) Young, a longtime member of the Knoxville Bar, to the Tennessee Claims Commission, replacing Newport attorney William O. Shults as Commissioner for the Eastern Division. Commissioner Young’s appointment was effective July 1, 2017 and he has been serving as a Commissioner since that date. His appointment has been confirmed by both houses of the Tennessee General Assembly. The appointment is for an eight-year term. I recently sat down with Commissioner Young to discuss his new position and to discuss the Claims Commission, a court with which many attorneys are not familiar.

“The Claims Commission is a creature of legislation which appeared in the 1980s,” explained Commissioner Young, “and it has exclusive jurisdiction for all monetary claims against the State based on the acts or omissions of State employees.” There is one Commissioner in each grand division of the State (West, Middle, and East,) and the other Commissioners are James A. (“Jim”) Hamilton, III (West) and Robert N. Hibbett (Middle). The Claims Commission Clerk’s office is located in Nashville. For attorneys unfamiliar with the Claims Commission and what it does, Commissioner Young highly recommends an article co-authored by Commissioner Hibbett for the March 2017 issue of the Tennessee Bar Journal1: “I certainly would encourage anybody who is interested in a general overview of the scope of Claims Commission jurisprudence and procedures to read Commissioner Hibbett’s article because it’s exceptionally good.”

The statutes governing the Tennessee Claims Commission are contained in Title 9, Chapter 8 of the Tennessee Code Annotated, and the various categories of claims for which the Claims Commission holds exclusive jurisdiction are listed in Tenn. Code Ann. § 9-8-307. Through this statute the state has established a limited waiver of sovereign immunity in approximately 23 types of claims, including the following categories: negligent care, custody, and control of persons, property, or animals; negligent operation or maintenance of a motor vehicle; dangerous conditions created or maintained on state real property or on state-maintained highways; defamation; breach of a written contract; taxes paid under protest; and claims by crime victims.2 The Claims Commission’s jurisdiction also includes workers’ compensation claims of state employees and transfers or appeals from the Division of Claims Administration of matters involving the Criminal Injury Compensation Act.

Describing the operation of the Claims Commission, Commissioner Young continued, “The Claims Commission has two dockets: there’s the small docket, which the best way to describe it is in the nature of April 2018

being like a general sessions court docket, and then there is the regular docket, which is by statute referred to as being similar to courts of record.” Generally the Tennessee Rules of Civil Procedure and the Tennessee Rules of Evidence apply in regular docket cases before the Claims Commission, though Commissioner Young suggests that attorneys practicing in the Claims Commission should be sure to visit the Commission’s website and review the Claims Commission Rules, as there are some rules of civil procedure that are not used and some rules of practice that are unique to the Claims Commission.3 Rulings of the Commissioner on the small docket are final and are unable to be appealed, whereas regular docket rulings may be appealed to the entire Commission en banc, or to the Tennessee Court of Appeals or Tennessee Supreme Court.

Commissioner Young will not have a designated courtroom he presides over in East Tennessee. Rather, “what has occurred over the years is that the claims commissioners through their staffs have developed relationships with various court clerks around (in my case, East) Tennessee and when we schedule matters for trial we will attempt to schedule a matter at a location that is near the plaintiff. I say near the plaintiff because typically the cases are defended by attorneys with the Attorney General’s office and often those individuals come out of Nashville so they’re going to have to come in this direction anyway.”

The Eastern Division offices have been located in Newport during Commissioner Shults’s terms, but the offices are in the process of moving to Knoxville where they will be located in the SunTrust building at 7610 Gleason Road.

I asked Commissioner Young what sort of preparation he undertook before taking the bench and he replied, “My official role started on July 1, so I am handling cases now and have been [since then]. So, the process is obviously a rapid process that involves a lot of reading, a lot of thinking, a lot of compartmentalizing these various types of claims and working with the two other commissioners, with them assisting me and with me assisting them thinking through some of these issues.” He said that he had also received advice from outgoing Claims Commissioner Bill Shults.

“I have found it to be a very collegial group of people and the amount of help is immense. But as you know, we’re lawyers and we are trained to do what lawyers do, which is to read things and understand things. Most of this is statutory. With that said, there is an abundance of case law interpretation of the statutes. So it’s just a learning process that doesn’t end on a certain date. It proceeds through every case or every claim that you’re handling.”

Discussing his goals as a claims commissioner, Commissioner Young pointed out: “I think the goals for a claims commissioner should be the same goals for a circuit judge or a chancellor or an appellate judge, and that is to try to address the cases or claims as you see them and as the law requires you to see them and to be the best you can to be impartial and fair to all sides. That’s obviously a statement of intent – it’s aspirational – but that’s what we all should strive for.” As a final piece of advice for DICTA readers who intend to practice before the Claims Commission, he encourages attorneys to familiarize themselves with the statutes and rules governing Claims Commission practice. Doing so can help attorneys avoid pitfalls such as circumstances described in Tenn.

Code Ann. § 9-8-402(b) under which a claim is barred. Commissioner Young said that if attorneys have any procedural questions about Claims Commission practice, Clerk Paula Merrifield should be able to address them or attorneys can consult the Claims Commission website at http:// www.treasury.tn.gov/claims/.

1 See Commissioner Robert N. Hibbett and Justin Hickerson, The Tennessee Claims Commission: The State’s Least-Known ‘Court’, Tennessee Bar Journal, March 2017, at 18 – 24.

2 Tenn. Code Ann. § 9-8-307.

3 One important rule that is unique to the Claims Commission is the inapplicability of the saving statute when litigants non-suit and then attempt to re-file within one year. The Tennessee Court of Appeals has held that the saving provision of Tenn. Code Ann. § 28-1105 does not apply in Claims Commission matters.

DICTA

7

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

Jr.

THE POWER OF SONG

Making the Farragut Middle School basketball team was a monumental moment in my life. I was 13 and alive for the first time. On a winter night in 1982, I kissed a girl named Sherry on the back of the middle school basketball team bus. I stayed up that night discussing the life-changing event with a couple of buddies who spent the night with me in my basement. I woke the next morning to “Sherry Baby” by Frankie Valli & The Four Seasons blaring throughout the house. My father was sitting at his “control panel” - the corner of our basement where his musical equipment and records were located. I don’t know how he came by the information but he was smiling when I turned to look at him.

I can’t remember a day in my life without music. Music, in all forms, is my true inheritance. While the three Pryor children have little musical talent, we were born to parents who love music and who have lived their life surrounded by it. John, Amy, and I have an innate ability to identify and appreciate good music. I was one of the few kids in my gradeschool class who knew the B sides to Elvis’s hits and the names of those who collaborated to write the greatest works in Rock n’ Roll. We were regaled at dinner with stories about the music business and biographies of the great songwriters. John and I were forced to perform as the Blues Brothers in talent shows. All of us were infused with my father’s hatred for Pat Boone and other white men who’d taken the songs of great black musicians and song writers, usually with nominal or no compensation, and claimed them as their own. If you want to get my father started ask him about Pat Boone or Donald Trump. We followed his musical phases, listening to the outlaw country of Merle Haggard and Waylon Jennings and then back to the early Rock n’ Roll of Bill Haley and Chuck Berry.

My 6th grade social studies teacher asked me why I had the lyrics to Willie Nelson’s “Blue Eyes Crying in the Rain” on my notebook. I told her it was written by Fred Rose and originally performed by Roy Acuff, not Willie. And, I told her it was a beautiful song. Puberty.

My father spent hours in our basement with his records and sound system. “He’s with his music,” my mother would say. It was not unusual for my father’s friends to show up after midnight and drag him out of bed to play music for them. For young children this was beautiful theater.

We heard and saw it all. It was a common thing for the three of us to drift off to sleep with the bass humming through the floorboards and sheetrock of our home, the songs rising from the basement to cover us up like an electric blanket. We were dragged, sometimes in our pajamas, to the original Buddy’s BBQ in Bearden to hear bluegrass on Friday nights.

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We sat in fields of cut hay at Red Gate and other bluegrass festivals while delicious voices singing “May the Circle be Unbroken” rose from the stage into the hot and humid skies while we ate fried chicken from styrofoam coolers.

Mom and Dad are known among their friends for their performance of “Sweet Thang” - the Loretta Lynn/Ernest Tubb version. I’ve seen them perform a lip sync to the song in crowded hotel ballrooms or suburban living rooms, never disappointing or missing a lyric. The vacations of my youth required mix tapes. He’d make tapes for the road, for the beach and for the condo we rented. Before the iPod, he made playlists of genres. Tapes would carry the title “Country” or “Disco.” He collected funny songs, and made one tape entitled “Funny Funny” that was worn out from playing over and over to the delight of his children.

Some songs were appropriate for children of tender years (The Hokey Pokey and Flying Purple People Eater) and some were not. When I close my eyes, I can still see three kids in the back of a Oldsmobile station wagon, having made a bed in the back, laughing to the lyrics and music of artists like Weird Al Yankovic as we flew down the Florida Turnpike.

He and my mother made the traveling better than the destination.

My father gave me a reel-to-reel tape player - his hand me down - and taught me how to run my radio thru it. I spent every weekend listening to and recording selected songs from the Top 40 Countdown with Casey Kasum. We took Billboard Magazine, and I’d read the charts and stories about the recording industry, while in the next room the Motown Sound pumped from the best speakers in town.

We were shown, not told, that music is a universal language and a common denominator. I will never forget the five of us sitting in the the 10th row of the famous Apollo Theatre in Harlem for Amateur Night.

We had been lectured about the theater’s importance in the world of Rock n’ Roll, how Buddy Holly played there and how Elvis and The Beatles spoke of it as the Holy Land. The five of us watched as the talented and not so talented took to the stage, and when a famous rapper came on stage and implored the crowd to rise, my father was the first on his feet, hands in the air, calling out as instructed “I - Love - My Mother!”

My house is still full of music. My kids can name the songs we sang on those rides to school - rides that hold a vaunted place in the Hall of Fame deep inside my mind. We’ve danced on the beach to playlists from my iPod, and they never tire of the story of my first gift to Nancy when we were dating - an mp3 player with strategically selected downloaded music. The legacy continues. My heart is full. Thanks Mom and Dad.

DICTA

April 2018

PRACTICE TIPS By:

John A. Willis Fox & Farley

AN UPDATE ON LITIGATING ARBITRATION CLAUSES IN NURSING HOME LIABILITY CASES

Inappropriate as the analogy may be, we lawyers often compare litigation and trial work with going to war. (The good news for us lawyers are that the consequences are not nearly as dire when the courtroom is the field of battle!) Nonetheless, in the arena of nursing home litigation, the first true skirmish in the “war” between the parties involves the application of an arbitration clause.

Almost universally, nursing homes have new residents or their family members sign agreements waiving the resident’s Seventh Amendment right to a trial by jury in a civil lawsuit. In almost all those cases, the resident or their family members do not understand what they are signing. Admission to a nursing home is often fraught with emotion.

People being admitted to nursing homes, if they are aware of what is happening at all, understand that they are losing the independence that good health provides and fear what is happening to them. Family members are preoccupied with their concern for a loved family member and perhaps feel guilt associated with giving that person into the care of strangers. The admission process is long and the paperwork seems endless. An arbitration agreement is just one piece of paper in a long line of documents that need signatures and the patient or family member is generally numb to the entire process. Only after there has been an injury or death associated with alleged negligence or abuse does a full understanding of what was signed hit home: the courthouse doors may be closed to the injured party as the nursing home seeks to enforce the arbitration agreement.

When the injured resident or family of a deceased resident files suit in court, often the first responsive pleading filed is a motion to compel arbitration with a copy of the arbitration agreement attached. Failure to move timely to compel arbitration may result in a finding that the nursing home has waived its right under the agreement. This is nothing new. There is a long line of cases in Tennessee grappling with whether to enforce the arbitration agreements or not. These cases generally center around: 1) the mental status of the patient at the time they signed the agreement and whether they had the legal capacity to enter a lawsuit, or 2) whether the family member (or less commonly, other acquaintance) who signed on the patient’s behalf had the legal authority to bind the patient.

With regard to the second issue above, the nursing home will generally need to show the person signing on behalf of the patient had either a valid power of attorney granting the authority to enter into contracts for the patient or has executed a proper form pursuant to the Tennessee Health Care Decisions Act at Tenn. Code Ann. §68-11-1806 to act as a surrogate to make health care decision “for a patient who is an adult…if, and only if: The patient has been determined by the designated physician to lack capacity…”.

One argument that has often been made by the patient or their family is that the enforceability of arbitration agreements should be viewed with more scrutiny because of their very nature. The agreements are often executed unwittingly and have the effect of waiving a Constitutional right. Last year, however, the U.S. Supreme Court handed down an opinion that effectively does away with that argument.

Kindred Nursing Ctrs Ltd. P’Ship v. Clark, 137 S.Ct. 1421 (2017), involved two, now-deceased residents of a Kentucky nursing home. In each case, a family member held the resident’s power of attorney. Each also signed an admission form on behalf of the resident that included a binding arbitration agreement.

Both agents later sued the nursing home, alleging its “substandard care” caused their respective residents’ deaths. The nursing home moved to enforce the arbitration agreements and dismiss the lawsuits. The Kentucky Supreme Court eventually found the arbitration agreements April 2018

were invalid, holding that a power of attorney could not authorize someone to deprive a person of their right to a jury trial without express authorization. In other words, unless the power of attorney contained express language permitting the agent to sign an arbitration agreement, no such authorization could be inferred. Interestingly, the Kentucky Supreme Court did not focus on the Seventh Amendment right to a civil jury trial. Rather, it relied upon the Constitution of Kentucky and the right to jury trial conferred thereunder.

The U.S. Supreme Court disagreed. Justice Kagan, writing for an 8-1 majority, wrote that the Federal Arbitration Act (9 U.S.C. §2) required courts to place arbitration agreements on equal footing with all other contracts. The FAA states that arbitration agreements are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Id. The Supreme Court found that the Kentucky state Supreme Court failed to put arbitration agreements on an equal plane with other contracts when it articulated its “clear-statement rule.” Thus, federal law prevents a state court from “singling out” arbitration contracts for such special treatment.

“By requiring an explicit statement before an agent can relinquish her principal’s right to go to court and receive a jury trial,” Justice Kagan wrote, “the [Kentucky] court did exactly what this Court has barred: adopt a legal rule hinging on the primary characteristic of an arbitration agreement.” Without explicitly citing the Supremacy Clause, the Court essentially held that there could be no conflict between the FAA and state law, including rights enumerated under a state constitution.

The lone dissenting vote was Justice Clarence Thomas, who wrote separately to state his view that federal arbitration law “does not apply to proceedings in state courts.”

After the Kindred Nursing Ctrs case was published, however, the Court of Appeals in the Western Section issued an opinion addressing the appropriate forum for litigating the enforceability of an arbitration agreement. In Edwards v. Allenbrooke Nursing and Rehabilitation Center, LLC, No. W2016-02553-COA-R3-CV (Tenn.Ct.App. Oct 26, 2017), the trial court held that the arbitration agreement was unenforceable.

At issue was whether the daughter who signed the health care surrogate form pursuant to §68-11-1806 had authority to execute the agreement.

The trial court held that section 1806 required a physician to determine the patient “lacked capacity.” In this case, the patient’s doctor specifically noted that the patient did not lack capacity. On appeal, the sole issue raised by the nursing home was whether the trial court had authority to decide enforceability or whether it should have been decided by an arbitrator. The Court of Appeals held: “…[A] court, rather than an arbitrator, must resolve the parties’ formation dispute. Although there is a federal policy favoring arbitration, that policy does not override the principle of consent. Accordingly, a challenge to the formation of a contract is a question to be resolved by the court. In sum, when a party claims it never concluded an agreement at all, it is for the court, not the arbitrator, to determine whether the parties agreed to the arbitration provision upon which the party seeking arbitration relies.”

(Internal citations omitted). So, the battle goes on. While nursing homes can rely on Kindred Nursing Ctrs as courts and legislatures might fashion rules to protect a patient’s constitutional right to jury trial, the fight regarding issues of contract formation remain within the discretion of the trial courts.

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Photo Ops

The Knoxville Barristers sponsored a Veterans’ Legal Advice Clinic on February 14th at the Knox County Public Defender’s Community Law Office.

The monthly clinic is a joint project of the Knoxville Barristers, KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, Knox County Public Defender’s Community Law Office, the University of Tennessee College of Law, and the local VA office. Sixteen veterans were assisted by ten attorneys and four law students.

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April 2018

L E G A L U P DAT E By: Kyle Hixson Deputy District Attorney General, Sixth Judicial District

WHEN A TRUE MAN ACTS UNLAWFULLY: STATE V. PERRIER RESHAPES SELF-DEFENSE LAW IN TENNESSEE

Issues of gun control and police/citizen interactions are at the forefront of an ongoing national debate. In the past few years, a large part of this debate centered on so-called “stand your ground” laws. “Stand your ground” laws – or the “true man” doctrine, as it was known at common law – generally refer to the legal principle that a law-abiding citizen need not retreat before acting in self-defense. These laws came under sharp scrutiny in the aftermath of Trayvon Martin’s killing and a Florida jury’s acquittal of his shooter, George Zimmerman. While it is arguable whether Florida’s version of “stand your ground” was the true legal cause of Zimmerman’s acquittal,1 it is undeniable that the Zimmerman case sparked a national dialogue that continues today in our courts and legislatures.

This past November, our Supreme Court opined on Tennessee’s version of “stand your ground” in State v. Perrier2 and, in doing so, fundamentally changed the way that we think about self-defense claims.

Perrier has had an immediate effect on cases involving self-defense claims, but to appreciate its full import, some background on Tennessee’s selfdefense laws is in order.

Prior to the 1989 codification of criminal defenses, self-defense was purely a creature of common law in Tennessee,3 and almost every self-defense claimant had a duty to retreat before using force to respond to a threat.4 In 1989, however, the General Assembly joined a growing national trend and explicitly adopted a version of the “true man” doctrine as a component of the self-defense statute. Unlike the common law doctrine, Tennessee’s statutory formulation of “true man” contained no exceptions or qualifications: “There is no duty to retreat before a person threatens or uses force.”5

In 2007, the General Assembly dialed back Tennessee’s “stand your ground” law by adding the traditional qualifiers that were present at common law. A blanket no-duty-to-retreat rule was replaced by the following language: “[A] person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force . . . .”6 It seemed as though the General Assembly had simply reinstated a limited duty to retreat prior to acting in self-defense for those who were engaged in unlawful activity or who were in a place where they had no right to be. As the post-2007 application demonstrates, it was not quite that simple.

In the years following the 2007 amendment, the “unlawful activity” and “place where a person has a right to be” clauses came to be viewed not as qualifiers for a person’s privilege not to retreat before acting in selfdefense, but rather as barriers to a person’s ability to claim self-defense in the first instance. This is intimated in the Tennessee Pattern Instruction on self-defense: “If a defendant was not engaged in unlawful activity and was in a place where he or she had a right to be, he or she would have a right to [threaten][use] force against the [deceased][alleged victim]. . . .”7 This notion gained momentum in 2013 when this oft-cited dictum appeared in the Supreme Court’s opinion in State v. Hawkins: “To prevail on the theory of self-defense, a defendant must show that he or she was ‘not engaged in unlawful activity’ and was ‘in a place where the person has a right to be’.”8 Other cases followed Hawkins that reinforced the proposition that a person acting unlawfully was precluded from asserting self-defense as a threshold matter.9

Against this backdrop, the Supreme Court agreed to hear the appeal of Antoine Perrier. Mr. Perrier was convicted by a Shelby County jury of attempted voluntary manslaughter and other crimes after he opened fire at a group of people standing outside the Miracles Mini Market in Memphis. The altercation, it appears, arose following a conversation between Mr. Perrier and one of the store patrons regarding the physical appearance of Mr. Perrier’s female companion. This conversation quickly soured. In the parking lot, Mr. Perrier produced a handgun and opened fire towards the front of the store. Several bullets passed through the clothing of one of the intended victims. An innocent eight-year-old girl inside the store had a bullet pass through her hand, and two other bullets grazed her stomach and leg.10

Mr. Perrier’s argument at trial was that he opened fire in self-defense because he thought that one of the alleged victims was reaching into his back pocket for a gun. The rub in this case for Mr. Perrier is that he was a convicted felon at the time of this shooting and was therefore forbidden from possessing a firearm. This set of circumstances demonstrates the importance of the question before the Supreme Court. If the Court April 2018

followed the Hawkins understanding of self-defense, Mr. Perrier’s unlawful possession of a firearm would completely preclude him from asserting a self-defense claim. The jury would not be charged on self-defense, and his attorney would not be able to argue it in closing. On the other hand, if the Court departed from the Hawkins understanding of self-defense, Mr. Perrier could still make a self-defense argument, but the prosecution would be able to respond that he had a duty to retreat from the situation before using force. It would be up to the jury to sort out the factual issues – could he retreat in safety, was it reasonable for him to believe that force was necessary, etc.

In a unanimous opinion authored by Justice Roger A. Page, the Court chose the latter option and held that the “unlawful activity” language in the self-defense statute applies only to the duty-to-retreat requirement and does not serve as a threshold bar to asserting a selfdefense claim. In addressing Hawkins, Justice Page wrote that the Hawkins Court “assumed that the unlawful activity language applied to the defense as a whole[,]” but noted that the issue was not directly before that Court.

The Perrier decision provides much needed clarification in an area that had become muddied since the 2007 amendment to the self-defense statute. And its ramifications will cut both ways for litigants in criminal cases. Prosecutors will no longer be able to avoid a self-defense instruction based upon a defendant’s unlawful [name-your-crime] at the time of the charged offense. They will, however, be able to argue that self-defense claimants had a duty to retreat before using force if they could do so in safety. This is an argument that can carry significant weight, especially in a case similar to Mr. Perrier’s where the defendant was next to a vehicle at the time of the shooting and could have removed himself from the situation before resorting to violence.

Perrier also provides for a jury-out procedure for determining whether a self-defense claimant was acting unlawfully, and it clarifies the interaction between Tenn. Code Ann. § 39-17-1322 (setting forth a defense against gun charges for those acting in self-defense) and the general self-defense statute in § 39-11-611. Importantly, it overrules the Knox County case of State v. Deanty Montgomery11 and holds that gun charges can in fact serve as “unlawful activity” for the purposes of the selfdefense statute, notwithstanding § 39-17-1322.

Some questions remain following Perrier. For instance, the Court chose not to consider whether there must be a causal nexus between the “unlawful activity” and the charged conduct.12 Also, Perrier does not provide explicit guidance as to the continued validity of the pattern instruction on self-defense, nor does it direct how a jury should be instructed in cases where a defendant has an affirmative duty to retreat.13 These questions and others will surely be the subject of future criminal litigation in our courts.

See, e.g., Ta-Nehisi Coates, How Stand Your Ground Relates to George Zimmerman, THE ATLANTIC, July 16, 2013, available at https://www.theatlantic.com/national/archive/2013/07/ how-stand-your-ground-relates-to-george-zimmerman/277829/.

2 536 S.W.3d 388 (Tenn. 2017).

3 See State v. Kennamore, 604 S.W.2d 856 (Tenn. 1980).

4 Limited exceptions to the duty to retreat requirement included when a person lawfully acted in an official capacity or in defense of one’s habitation. See, e.g., Morrison v. State, 212 Tenn. 633, 371 S.W.2d 441 (1963).

5 Tenn. Code Ann. § 39-11-611(a) (1989).

6 Tenn. Code Ann. § 39-11-611(b)(1), (b)(2) (2010) (emphasis supplied); see, 2007 Tenn. Pub. Acts ch. 210, § 1.

7 7 T.P.I—Crim 40.06(b).

8 406 S.W.3d 121, 128 (Tenn. 2013).

9 See State v. Victor Dyson, No. W2014-01818-CCA-R3-CD, 2015 WL 9466679, at *4 (Tenn.

Crim. App. Dec. 28, 2015) (quoting Hawkins), perm. app. denied (Tenn. Aug. 19, 2016); see also State v. Zachary Carlisle, No. W2012-00291-CCA-MR3-CD, 2013 WL 5561480 (Tenn. Crim. App. Oct. 7, 2013), perm. app. denied, (Tenn. Mar. 17, 2014).

10 Ironically, the girl’s mother moments before had allowed Mr. Perrier to check out in front of her.

11 No. E2015-01014-CCA-R3-CD, 2015 WL 3409485 (Tenn. Crim. App. May 28, 2015), perm. app. denied (Tenn. Oct. 15, 2015).

12 Hypothetically, if Mr. Perrier had lawfully possessed a gun, would he still have had a duty to retreat if he had, for example, a marijuana joint in his pocket at the time of the shooting?

13 Tennessee’s common law definition of the duty to retreat is a likely option: “The law of [selfdefense] requires that the defendant must have employed all means reasonably in his power, consistent with his own safety, to avoid danger and avert the necessity of taking another’s life.

This requirement includes the duty to retreat, if, and to the extent, that it can be done in safety.”

Kennamore, 604 S.W.2d at 860.

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April 2018

MANAGEMENT COUNSEL: LAW OFFICE 101 By: Ashley Trotto Kennerly, Montgomery & Finley, P.C.

HEALTH LAW UPDATE: THE EMPLOYER MANDATE TODAY

Late December 2017, media outlets were abuzz with news that the Affordable Care Act’s Individual Mandate had been repealed. Had he done it? Had President Trump delivered on his promise to repeal Obamacare? Well, not exactly; at least not yet anyway.

Although the Individual Mandate was effectively repealed, the Tax Cuts and Jobs Act (“TCJA”) had no effect on the Employer Mandate or its associated reporting requirements.1

In fact, the Employer Mandate seems to be thriving. Almost simultaneously with the adoption of the business-friendly TCJA, the Internal Revenue Service (“IRS”) began issuing Employer Mandate penalty assessments to large employers for the 2015 calendar year.

Depending on the alleged failure, the penalties are based either on Internal Revenue Code (“Code”) § 4980H(a) or (b). The largest penalties are for failures under Code 4980H(a) and are based on an employer’s failure to offer minimum essential coverage to at least 70% of its fulltime employees.2 The penalty is only assessed if at least one of the employer’s full-time employees receives a premium tax credit through the Exchange.3 That penalty is calculated by subtracting 80 from the employer’s total number of full-time employees then multiplying that number by $2,080.4 For many large employers, this calculation results in penalties in the millions.

Although some large employers may have actually failed to comply with the Employer Mandate, others are receiving assessment letters due to simple reporting errors. You might be thinking, wait; didn’t the IRS waive reporting penalties? It did. Recognizing the challenges faced by employers in complying with the reporting requirements, the IRS published guidance providing a waiver of reporting penalties so long as an employer made a good faith, timely effort to meet its filing requirements.5 However, that guidance has not hindered the issuance of penalty assessments under Code § 4980H. It is up to each employer to prove to the IRS that the alleged failure was solely due to incomplete or incorrect reporting and was not a substantive Employer Mandate compliance failure.

Additionally, this assessment activity seems to fly in the face of President Trump’s first Executive Order, signed hours into his presidency, which provides, “to the maximum extent permitted by law, the Secretary of Health and Human Services (Secretary) and the heads of all other executive departments and agencies (agencies) with authorities and responsibilities under the Act shall exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.”6

In response to a Wall Street Journal article raising this apparent inconsistency, the IRS issued a written statement providing: “The ACA’s “employer mandate” unfortunately remains the law of the land, and IRS has informed Treasury that it is sending notices to employers assessing their tax obligation under the law. Treasury lawyers see no ground for the Secretary to direct the IRS to not collect the tax . . . In fact, when the

Obama administration delayed collecting this tax, the Wall Street Journal called the delay a “lawless rewrite” and of “dubious legality.” This tax is yet another example of how Obamacare is hurting the American people and needs to be repealed.”7

As you might expect, business groups are demanding that Congress take some action to retroactively repeal the Employer Mandate to avoid the penalty assessments. To that end, Representatives Devin Dunes (R-Calif.) and Mike Kelly (R-Pa.) are pushing to have a suspension of the mandate included in an upcoming long-term spending deal.

Additionally, House Ways and Means Committee Chairman Kevin Brady (R-Tx.) has told reporters that he has discussed a repeal or delay of the Employer Mandate with members of the Committee and the new Health and Human Services Secretary Alex Azar. Brady stated, “we want to make sure our businesses aren’t caught up in some sort of fines or punitive measures for the past three years,” and that “the goal would be to delay or repeal it in total, but retroactive as well.”8

Penalty assessment issue aside, we must consider the fact that the Individual and Employer Mandates are somewhat intertwined. The Individual Mandate was adopted, in part, to increase the number of healthy individuals in the insurance marketplace, with the idea that the healthy could subsidize the sick. If healthy individuals are now permitted to opt-out of coverage without penalty, employer premiums are likely to spike, and overall, may create an unsustainable system.

Because the mandates were intended to support one another, there are some strong opinions in the employee benefits community that, following effective repeal of the Individual Mandate, repeal of the Employer Mandate is not far behind. For example, James Klein, President of the American Benefits Council, recently stated, “the whole legal basis for the employer mandate in the ACA was to support the individual mandate, and with the repeal of the individual mandate, there’s no legal or logical basis for the employer mandate.”9

So, as of today, the Employer Mandate maintains its status as the law of the land.10 How long its reign will last is yet to be determined.

1 PL 115-97, 2017 HR 1, PL 115-97, Part VIII, Section 11081, December 22, 2017 (reducing the Individual Mandate penalty to zero, effective January 1, 2019).

2 26 U.S.C.A. §4980H. 3 26 U.S.C.A. §4980H(a).

4 26 U.S.C.A. §4980H(c).

5 See Preamble to the §§ 6055 and 6056 regulations; IRS Notice 2016-70; and IRS Notice 2018-06.

6 Executive Order 13765, Section 2 (January 20, 2017).

7 US Department of the Treasury, Statement from Treasury Spokesperson on the Wall Street Journal Editorial, Nov. 7, 2017, https://www.treasury.gov/press-center/pressreleases/Pages/sm0210.aspx.

8 Jessie Hellman, Business groups pressing for repeal of ObamaCare employer mandate, The Hill, Feb. 16, 2018, http://thehill.com/policy/healthcare/374116-business-groupspressing-for-repeal-of-obamacare-employer-mandate.

9 Id. 10 This article was drafted on March 7, 2018.

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 2018

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LIFE AND LAW IN HARMONY By: Leslie L. Beale, JD Executive and Developmental Coach

Profusion Strategies

THE POWER OF CHOICE

I have to go to this conference next month.

I can’t skip the committee meeting tonight.

I have so much I have to get done around the house.

Have you ever paid attention to how many “have to’s” there are in your life? If you’re like most people, your brain is crowded with an ongoing list of obligations, commitments, and appointments that leave you feeling trapped. No matter how much you may want to, you feel like you can’t make real changes in your life because there just isn’t any margin to do anything new or different.

The Reality

What if I told you that all those things you “have to do” are actually a series of choices? That you can change those choices and make dramatic improvement in your level of satisfaction? At first you might think I was a little bit crazy, but the truth is, almost everything we do is a choice.

We choose to respond to emails, and when and how we do so. We choose to pay our bills on time, or not. We choose to join committees, and how much we participate. We even choose to pay our taxes. There are consequences for each of these choices – some of them intended and some unintended. If we change our choice, we may change the consequence. Sometimes the change is positive and sometimes it’s negative. Some consequences might be extremely severe (like going to prison for tax evasion). But, at the end of the day, each choice is still ours to make.

Having Choices Changes Things

the group or not, I was able to see what that choice would really cost me.

Attending meant I wasn’t keeping up with existing clients’ work the way I wanted. They are my best source of referral business, so letting my service to them slide isn’t wise. I can’t believe I didn’t see this before! Resigning from the group is definitely the right choice.”

What would you have done in her situation? It’s possible you would have chosen differently. Part of the beauty of recognizing the power of choice is the results are totally individualized.

Often, you discover that you wouldn’t really change the choices you’re currently making. For instance, I do certain things in my life because they matter to me, like maintaining an orderly home, responding to emails promptly, and participating on several committees and boards.

When I feel overwhelmed by these things, or fall into the trap of thinking “I have to” do them, I remind myself I can choose differently if I want. When I choose to keep going the same way, I remind myself why and find my motivation renewed.

Try It for Yourself

We all feel trapped, overwhelmed or frustrated from time to time, but it’s up to us to make the changes necessary to get ourselves unstuck.

Why not try it now? Identify one area of your life where you feel stuck or frustrated. See if you can identify the choices you’re making in those areas. Ask yourself if you want to make a different choice, or if you just need to remember why you made this choice in the first place. If you want to make a change, begin to imagine what would be possible if you chose differently. After all, it’s up to you.

At this point, you might be thinking, “So, everything’s a choice, so what?”

If the things you do (and don’t do) are choices, you always have the power to choose differently. Just recognizing that fact allows you to evaluate the choices you’re making in a new light. You free yourself to determine if what you’re doing is really working for you.

If it isn’t, rather than feeling trapped by your circumstances, you’ll be open to new possibilities. Creative solutions that have evaded you in the past will suddenly appear as no-brainers. Don’t believe me? Take a recent example from one of my clients…

This woman, a busy professional with a demanding career and young children, was increasingly frustrated by a lengthy monthly meeting that she “had to” attend.

“What if you didn’t? What if you resigned from the group?” I asked.

“I can’t,” she said. “The group members might be a good source of referrals.”

“So, you’re choosing to attend so that you’ll have the opportunity for referrals.”

“I guess.”

“Is that a choice that’s working for you?”

“No. I’m angry and resentful. I’m behind on the work I already have, and I haven’t gotten one referral from the group in over a year.”

As we ended, I asked her to look for another choice she could make in this situation that might lead to a better result for her. When we spoke next, I could tell she was excited.

“Guess what? When I realized it was my choice to keep attending

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U.S. SUPREME COURT TO RELEASE EPIC DECISION ON MANDATORY ARBITRATION OF EMPLOYMENT DISPUTES

At the time of this writing, arbitration is front-page news. Its “fifteen minutes of fame”1 comes as the result of a non-disclosure agreement between a Delaware LLC and an adult film actress, Stephanie Clifford. That agreement, purportedly entered into just prior to the 2016 presidential election, prevented Ms. Clifford from speaking publicly about an intimate relationship she had allegedly shared with then-candidate Donald Trump in return for a six-figure payment.2 The contract included a mandatory arbitration clause, and the White House Press Secretary, Sarah Huckabee Sanders, has deflected questions about the alleged relationship by responding that “[t]his case has already been won in arbitration.”3 Ms. Sanders’ statement was an apparent reference to a temporary restraining order issued by an arbitrator on February 27 enjoining Ms. Clifford from speaking publicly about the non-disclosure agreement.4

The latest sturm und drang surrounding our President has shined additional light upon the increased use of mandatory arbitration provisions in all types of contracts. It comes on the heels of Congress’s use of the Congressional Review Act in October 2017 to repeal the Consumer Financial Protection Bureau’s Final Rule on Arbitration. That Final Rule had barred mandatory arbitration clauses that denied consumers the option of class actions in the issuance of consumer financial products and services.5 The departure of Obama appointee Richard Cordray as Director of the CFPB in November 2017 effectively ended the executive branch’s work on arbitration, and the current GOP-controlled Congress is similarly unlikely to address it. As a result, the real action on the use of mandatory arbitration provisions lies where it has for several years: in the courts. Indeed, yet another significant mandatory arbitration case is currently pending before the U.S. Supreme Court. This one has the potential to affect any of us who work under an employment contract.

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The Supreme Court’s Revival of the Federal Arbitration Act

We all learned during the first couple of weeks of law school that the substantive law governing contracts is primarily left to the states. Why, then, has the U.S. Supreme Court made mandatory arbitration provisions in contracts such a priority over the past several years? The answer rests in a 1925 law called the Federal Arbitration Act (FAA).

The “primary substantive position” of the FAA stated that a contractual provision to settle disputes arising out of the contract via arbitration “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”6 Beginning in the 1980s, conservative judges, most notably Supreme Court Justice Antonin Scalia, began reading the FAA expansively, determining that the FAA reflects a public policy favorable to arbitration and expressed Congress’s desire for courts to “place arbitration agreements on an equal footing with other contracts . . . and enforce them according to their terms.”7 As Neil Gorsuch stated during his Supreme Court confirmation hearing: It used to be back at common law that arbitration was disfavored because it was thought that everyone should go to trial, trials were the norm, Seventh Amendment and all that. And then in [1925] Congress passed a law called the Federal Arbitration Act . . . Congress expressed a judgment that people should arbitrate their disputes. It made a judgment, policy judgment in favor of arbitration, because it’s quicker, cheaper, easier for people.8

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Thus, the FAA preempts efforts by state legislatures and courts to curtail the use of mandatory arbitration provisions, even when the efforts are based in federal and state public policies to preserve access to the courts (i.e., the “Seventh Amendment and all that”).

This view does not necessarily flow from the language of the FAA. Indeed, Justice Clarence Thomas has dissented from several of the Supreme Court’s recent arbitration decisions on the belief that the FAA does not apply to proceedings in state courts at all.9 However, Justice Thomas’s view notwithstanding, the broad reading of the FAA has become settled law.

Mandatory Arbitration in Consumer Agreements

The Supreme Court has already made clear in AT&T Mobility LLC v. Concepcion that mandatory arbitration provisions in contracts for consumer and financial services are generally to be upheld. In that 2011 decision, the struck down a California rule10 that classaction waivers in certain types of consumer adhesion contracts were unconscionable, and therefore unenforceable. The Court concluded that “[r]equiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.”11

In 2015, the Supreme Court affirmed that it had meant what it had said in Concepcion when it decided DIRECTV, Inc. v. Imburgia.

The DIRECTV subscriber agreement compelled individual arbitration, but that provision was to be disregarded “[i]f the law of [the subscriber’s] state would find this agreement to dispense with class action procedures unenforceable.”12 The intermediate appellate court in California held that the parties had bargained to apply California law as it existed when they entered into the contract in 2008, before the Concepcion decision.13 The Court reversed, holding that April 2018

COVER STORY By: Matthew R. Lyon LMU Duncan School of Law

although parties are free to choose which law governs their contract, the ordinary meaning of the phrase “the law of your state” is valid, not invalid, state law.14 Because, after Concepcion, California’s attempts to limit mandatory arbitration are preempted by the FAA and therefore invalid, the Court directed the California courts to enforce the arbitration provision in the subscriber agreement.15

As described above, the CFPB’s attempt after Concepcion and DIRECTV to curtail the use of mandatory arbitration provisions in contracts for consumer and financial services have been repealed by Congress and President Trump. Accordingly, they appear to be here to stay.

Mandatory Arbitration in Employment Agreements

The next frontier for mandatory arbitration is the employment agreement. A September 2017 report by the left-leaning Economic Policy Institute indicated that over 55 percent of private-sector, nonunion employees in the United States – or approximately 60 million workers – are subject to mandatory arbitration clauses in their employment agreements.16 This percentage is up from about a quarter of the workforce in the early 2000s and about two percent of workers in the early 1990s.17 About one-third of the employers who require mandatory arbitration of employment disputes also include classaction waivers in their agreements with employees.18 In other words, employers and their lawyers appear to be following the Supreme Court’s jurisprudence on mandatory arbitration and acting rationally in response to it.

It is in this context that the Supreme Court granted certiorari to resolve a circuit split regarding a conflict between the FAA and the National Labor Relations Act (NLRA). Of course, the NLRA is another federal law, not a state law or rule as were at issue in Concepcion and DIRECTV. However, in another postConcepcion decision, the Supreme Court upheld an arbitration clause that included a class-action waiver even though it effectively prevented the plaintiffs from vindicating their rights under the federal antitrust laws.19 So there is precedent for applying the FAA’s favorable policy to arbitration even when it conflicts with another federal statute.

In the case at issue, Epic Systems, Inc. v.

Lewis, employees challenged the validity of an agreement their employer had emailed to April 2018

them mandating that “wage-and-hour claims could be brought only through individual arbitration and that [they] waived ‘the right to participate in or receive money or any other relief from any class, collective, or representative proceeding.’”20 Section 7 of the NLRA states that employees shall have the right to form labor unions, to collectively bargain, “and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”21 The phrase “concerted activities” is not defined in the NLRA, but many courts, as well as the National Labor Relations Board, have long held it to include the ability of employees to aggregate their claims and sue their employers as a class.22 Thus, the FAA’s policy in favor of arbitration would appear to be at odds with the NLRA’s policy in favor of employee class actions.

In Epic Systems, the Seventh Circuit held that Section 7 of the NLRA rendered the employer’s mandatory arbitration agreement unenforceable.23 Moreover, the NLRA does not conflict with the FAA because, as noted above, Section 2 of the FAA (its “savings clause”) compels an arbitration provision to give way if “grounds . . . exist at law or in equity for the revocation of any contract.”24 According to the Seventh Circuit, the NLRA constitutes precisely such grounds. Other circuit courts, hewing closely to the Supreme Court’s language in Concepcion and Italian Colors, have held differently.25

Epic Systems, which has been consolidated with two other cases, was the first case the Court heard in its October 2017 term. Perhaps unsurprisingly, at oral argument a majority of a divided Court seemed prepared to uphold mandatory individual arbitration provisions in employment contracts.26 The Court’s opinion will come soon enough, but the stakes are high as it chooses between a resurgent Lochner-era law, the FAA, and one of the stalwart acts of the New Deal, the NLRA. Throw in the current overheated political climate, and it is quite the showdown. Some might even call it “epic.”

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1 “In the future, everyone will be world-famous for 15 minutes.” This statement is attributed to the artist Andy Warhol, who included it in a brochure accompanying his 1968 exhibit in Stockholm, Sweden. The world could not possibly have known fifty years ago how true that statement would prove to be today.

2 Jim Rutenberg & Peter Baker, Trump Lawyer Obtained Restraining Order to Silence Stormy Daniels, N.Y. TIMES (Mar. 7, 2018), available at https://www.nytimes. com/2018/03/07/us/politics/stormy-daniels-trump.html/.

3 Callum Borchers, Has Trump’s legal battle with Stormy Daniels “already been won in arbitration’?, WASHINGTON POST (Mar. 8, 2018), available at https:// www.washingtonpost.com/news/the-fix/wp/2018/03/08/ whats-the-deal-with-this-arbitration-thing-betweentrump-and-stormy-daniels/.

4 https://www.nytimes.com/files/stormy-Danielsrestraining-order.pdf.

5 Andrew Ackerman & Yuka Hayashi, Congress Makes it Harder to Sue the Financial Industry, WALL STREET JOURNAL (Oct. 24, 2017), available at https://www.wsj. com/articles/congress-votes-to-overturn-cfpb-arbitrationrule-1508897968.

6 AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (quoting 9 U.S.C. § 2).

7 Concepcion, 563 U.S. at 339.

8 Garrett Epps, How the Supreme Court Could Reshape Employment Law, THE ATLANTIC (Feb. 25, 2018), available at https://www.theatlantic.com/politics/ archive/2018/02/how-the-supreme-court-could-reshapeemployment-law/554009/.

9 See, e.g., Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1429 (2017) (Thomas, J., dissenting); DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463, 471 (Thomas, J., dissenting).

10 See Discover Bank v. Superior Court, 113 P.3d 1100 (Cal. 2005).

11 Concepcion, 563 U.S. at 344.

12 DIRECTV, 136 S. Ct. at 466.

13 Id. at 467 (citing Imburgia v. DIRECTV, Inc., 170 Cal. Rptr. 3d 190, 193 (Ct. App. 2014)). After Concepcion was decided, the provision at issue was removed from DIRECTV’s agreements with subscribers.

14 Id. at 469.

15 Id. at 471.

16 Alexander J.S. Colvin, The Growing Use of Mandatory Arbitration, Economic Policy Institute (Sept. 27, 2017), available at https://www.epi.org/publication/the-growinguse-of-mandatory-arbitration/.

17 Id. 18 Id. 19 American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013). The plaintiff merchants argued unsuccessfully that because of the expense involved in antitrust litigation, they could not effectively vindicate their rights under the federal antitrust laws if forced to arbitrate their claims individually.

20 Lewis v. Epic Sys. Corp., 823 F.3d 1147, 1151 (7th Cir. 2016). The employees were deemed to have accepted the agreement if they continued to work at Epic after receiving the email; there was no option to decline and keep their jobs. Id. 21 Id. (quoting 29 U.S.C. § 157).

22 Id. at 1152-53.

23 Id. at 1155-56.

24 Id. at 1157.

25 See, e.g., D.R. Horton, Inc. v. Nat’l Labor Relations Bd., 737 F.3d 344, 357 (5th Cir. 2013).

26 Amy Howe, Argument analysis: An epic day for employers in arbitration case?, SCOTUSblog (Oct. 2, 2017), available at http://www.scotusblog.com/2017/10/ argument-analysis-epic-day-employers-arbitration-case/.

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PRODUCTIVITY POINTERS By:

Jennifer S. White Peterson White, LLP

THE PAPER-LIGHT OFFICE

Paperless offices seem to be all the hype these days. A simple google search of “paperless office” returns multiple articles and tips discussing the change to paperless, debating the pros and cons of the hype, and even lamenting the downfall of the civilization as society transitions from paper to electronic mediums – think SkyNet, IRobt and the like. Various bar associations, conferences and vendors “put on” CLEs, seminars and other teachable moments, providing tips for lawyers on how to make the transition from paper to paperless. With all this apparent support and information, many law firms are still behind the curve when it comes to moving to paperless. Frankly, transitioning to paperless is oftentimes difficult for law firms, depending upon the area of practice. My firm has been “paperless” for approximately seven years. We have document servers, cloud based practice management systems, and many other fancy (and expensive) gadgets to ensure seamless productivity and maximum efficiency in the workplace. Despite all these resources, we also have a huge printer in our office and multiple stacks of paper. The other day the office manager was forced to venture out to the office supply store for an “emergency” paper run, as all the paper in the office had been used for a special printing project.

Although an office without paper would be ideal (especially from a cost standpoint for owners), a more realistic approach would most likely be a “paper-light” office. What follows are some tips and pointers on what works at our firm (and what doesn’t) in moving towards paperless.

1.

Paradigm Shift. Attorney and staff attitudes are the most difficult hurdle to creating a paper-light office. Everyone is afraid to recycle hard copies of letters and documents, even after said documents have been safely scanned into a cloud-based document management system. In our practice, most originals are not needed. Staff members are deathly afraid to throw away documents, and staff will even covertly keep hard copies for months, even after above-said scanning takes place. Many attorneys REFUSE to read documents online. Instead they will print every single medical record on a file, convinced their attorney powers will not activate until their eyes are able to scan over the words printed on a piece of dead tree. I had one assistant who would receive emails, print them, THEN scan them back into the computer, and save them to the file. (Obviously a training error on my part). Many times staff and attorneys don’t get the big picture. It took a while to train our staff to view cloud based document storage as identical to paper files. In fact, saving documents to the cloud is many times more secure than paper files.

How many times have attorneys or harried file clerks ran around hours before trial searching for that ultra-important exhibit that was misfiled? When tornados ripped through downtown Clarksville, how many attorneys had to cobble through court files or other pieces of information after files were completely destroyed? Training your staff to FIRST understand the big picture and benefits of the paperless system, will greatly cut down on inefficiency and resistance to your system at later dates.

we learned when setting up a paperless system was to (1) organize everything by date and (2) accurately name documents. Our online files are generally organized into 4 folders: - Court Documents - File Documents - Correspondence - Medical Records Feel free to name your file folders appropriately and with respect to your practice area. Within these folders, documents are organized by date and description. Thus a letter to opposing counsel regarding a settlement offer is as follows: 18.03-08 Ltr to OC re: settlement offer

It is imperative that you stick with the same system for naming.

In our firm, if documents are not named correctly, then attorneys cannot find the document, and then end up asking my paralegal to find said letter, pleading, record, etc. My paralegal then stops work that is income generating, and spends time looking for document for said attorney. Bottom line – find a good way to name documents and stick with it. Thousands of documents later, you will be reap the benefits.

3. Training. Quality and consistent training is a must. Our firm has monthly staff meetings. In those meetings, we usually will brush up on one aspect of our cloud based system. We also have a process manual with delightfully exciting topics such as “Naming Documents.” You will eventually have to print paper in some instances. Have your staff members ask themselves, “why am I printing?” Do I actually need that ink signature on a letter or will electronic signature work just as well? Do I need to mail this document, or may I fax or email? Remind your staff about the big picture.

4.

Court Appearances. Litigating is difficult to accomplish without paper. Most Judges require that I hand them a paper copy of an order rather than email or fax. While many courts are moving towards electronic filing, many counties are still completely stuffed with paper. Even at the newly created Court of Workers Compensation Claims, every settlement approval is printed, signed and stamped by a Judge, and then scanned back into the system. (I’m assuming the State is keeping the originals in a big storage facility somewhere in Nashville?) A paper-light firm takes into account that you are still going to have to print some paper.

Generally for hearings or trials, I will print what I think I need and organize into a trial notebook. I always bring my laptop and sometimes a small portable printer just as a backup. But generally I will find that I need much less paper than I thought I did. Litigating paper-light requires baby steps.

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2. Naming and Organizing Documents. To many, this topic simply puts one to sleep. I find it vitally interesting as one misnamed document can destroy your entire paperless system. One of the first lessons April 2018

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

MARGUERITE KELLY LANHAM: PIONEERING LAWYER, ADVOCATE, AND ACTIVIST

“Mrs. Lanham Wins Her First Case as Only Woman Criminal Lawyer!” reads a column in a 1936 issue of the Chattanooga Times.1 The attorney to which the paper alluded was Marguerite Kelly Lanham, a pioneering attorney who was clearly ahead of her time. Although there appears to be some debate amongst local historians as to whether Marguerite Lanham was the first or the second female attorney to practice law before the United States District Court for the Eastern District of Tennessee in Knoxville, there exists no debate as to the indelible mark this extraordinary woman left on the legal profession.

Marguerite Lanham was born on October 6, 1905, in Marion County Tennessee and graduated from Chattanooga High School and the University of Chattanooga, before ultimately graduating from the Chattanooga College of Law in 1935. The only woman in her law school class, Ms. Lanham worked days as a legal secretary while taking classes at night. As such, it took her six years to earn her degree. While in law school, she penned a paper entitled “Early History of Women Lawyers.” I’m sure she had no idea that one day, she would be counted among the Bar’s luminaries. She was subsequently admitted to the practice of law in 1936.

Mrs. Lanham distinguished herself by being the first woman to try a criminal case in Hamilton County before Judge Charles W. Lusk. According to Ms. Lanham, she had just received her law license when her fellow lawyers decided to play a joke on her. “The clerk of court and the other young lawyers asked the judge to appoint me to any criminal case that came up” she asserted in a 1993 interview that took place a year before her death. The case to which she was assigned involved grand theft from a local jewelry store by a defendant rumored to be insane. “They thought it would be a good joke to have the court appoint me, being a woman lawyer and all.” Today, the joke wouldn’t make sense, but in 1936, no woman lawyer had ever tried a case in Hamilton County. Recalling her direct examination of a defense witness who was related to the defendant, she asked the witness whether the defendant was insane. She recalled the witness’ response: “No ma’am, he’s not insane, but he sure is crazy.”2 She won the case, to the amazement and admiration of all. The trial was carried by the national wire services, and her client received mental health treatment in lieu of jail.

After the trial, one local reporter wrote, “Calm and unflurried, Mrs. Marguerite Kelly Lanham, Chattanooga’s only feminine criminal lawyer, won her first case in Judge Charles W. Lusk’s court yesterday. It was the first time a lady lawyer ever tried a case in the criminal courts of Hamilton County.”3 Reminiscing, she said, “Law is a fascinating profession, and as a woman, I had it to myself here for a while.”4

Mrs. Lanham was the first female attorney to be admitted to practice before the United States District Court, Eastern District of Tennessee. She was sworn in by the Honorable Leslie R. Darr in Chattanooga in 1939. As noted above, she was either the first or second female attorney to practice before the Court’s Knoxville division. She was the second woman to be admitted to the Tennessee Supreme Court. Regarding her admittance to the Court, The Chattanooga Times reported, “A Mrs. Lanham became the first Chattanooga woman to be accepted for practice in federal court this morning (Nov. 14, 1939) when she was introduced to U.S. District Judge Leslie R. Darr according to court records. She was introduced to the court with 10 other attorneys – all men.”5

Upon running unsuccessfully for General Sessions Court judge in 1958, she took great umbrage with a newspaper editorial that a woman should not be “exposed” to some things that had to be aired in open court.

She responded, “A trained legal mind has no sex.”6 Said one admirer, “Her hobby was hard work.” An active member of the Historical Society of the United States District Court for the Eastern District of Tennessee (Society), she was respected and admired by her fellow members. Society member attorney Alf R. O’Rear of Chattanooga, once commented of his former law partner, “I was associated with Marguerite in the practice of law from about August 1952 until late 1989, and found her to be always a lady, and she was liked and respected by the bar and the community in which she lived.”

After decades of honorable, ethical service to her clients, the Bar, and her community, Marguerite Lanham died on March 25, 1994 at the age of 88.

Her last recorded comments were, “I never really gave much thought to the fact that I was a pioneer. I was mostly just thinking about making a living and a career for myself. But Selma Cash Paty7 and I really were pioneers for women lawyers.”

The Chattanooga Times, July 14, 1936, p.5.

Patterson, S (1992) “A Woman Got the Last Laugh.” Chattanooga Times.

3 Id. 4 Patterson, S (1992) “A Woman Got the Last Laugh.” Chattanooga Times.

5 The Chattanooga Times, Nov. 14, 1939.

6 Newsletter of the Historical Society of the United States District Court For the Eastern District of Tennessee, Inc., February, 2000.

7 Selma Cash Paty, another pioneering female attorney in Chattanooga was licensed approximately 10 years after Ms. Lanham. The Chattanoogan, 2018.

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SCHOOLED IN ETHICS By: Alex B. Long Associate Dean for Academic Affairs University of Tennessee College of Law

MAKING DECISIONS AT TRIAL: MCCOY V. LOUISIANA AND INEFFECTIVE ASSISTANCE OF COUNSEL

“This sounds like my ethics class in law school…”

- Justice Sonia Sotomayor, Oral Argument, McCoy v. Louisiana

It is black-letter law that a lawyer must abide by the client’s decisions concerning the objectives of representation. See TRPC Rule 1.2(a).

Comment 2 to TRPC Rule 1.2 also tells us that “[c]lients normally defer to the special knowledge and skill of their lawyer with respect to the means used to accomplish their objectives, particularly with respect to … tactical matters.” But what happens when, at trial, the client does not defer to a lawyer’s decision with respect to a tactical matter? The United States Supreme Court is currently considering issues related to that question in McCoy v. Louisiana, No. 16-8255.

McCoy involves a criminal defendant who was charged with three counts of first-degree murder. Robert McCoy claimed he was innocent and that he was out of town at the time of the murders. His lawyer, Larry English, believed the evidence against him was overwhelming and encouraged him to plead guilty. When McCoy refused, English informed McCoy that he planned to concede that McCoy had committed the murders in an attempt to spare his client the death penalty. Two days before trial, McCoy attempted to fire English. English informed the judge that he and McCoy “had an irrevocable disagreement as to the trial strategy.” Louisiana v. McCoy, 218 So.3d 535, 548 (La. 2016). The judge ordered English to remain as counsel. During his opening statement, English admitted that his client had committed the murders but that the prosecution could not establish intent given McCoy’s serious emotional issues that prevented him from making rational decisions. The jury eventually found McCoy guilty on all three charges and sentenced him to death.

On appeal, McCoy alleges that he was denied effective assistance of counsel by English’s decision to admit guilt over McCoy’s objection.

McCoy argues that he had a Sixth Amendment right to make basic decisions regarding his defense. The Louisiana Supreme Court’s decision below was grounded primarily on the idea that English’s decision was a tactical one and a court “does not sit to second guess strategic and tactical choices made by trial counsel.” Id. at 567-68. Thus, the case brings into focus the sometime fuzzy scope of a lawyer’s duty as an agent of the client.

McCoy argued before the Louisiana Supreme Court that the lawyer-client relationship “is one of principal and agent wherein the lawyer’s authority derives from and is limited by the authority of the client, such that the defendant should have been able to decide what manner of defense would be presented at trial, instead of having to accept Mr. English’s decision to concede his guilt, at the outset, in the opening statement.” Id. at 564. As a general matter, that is absolutely right – the lawyer is the agent of the client. Complicating the analysis, however, is the fact that English believed that McCoy was insane. English claimed he had an ethical obligation to defend his client and not follow his “bizarre” instructions. The Louisiana Supreme Court’s decision denying McCoy’s ineffective assistance of counsel claim also hints at the idea that

English could not ethically follow an unlawful instruction from his client, although it is unclear what was unlawful about McCoy’s instructions.

How the Supreme Court will rule on the constitutional issue raised remains to be seen. And the decision will likely be limited to the criminal defense setting and perhaps the narrow facts presented. However, there are several principles at play that are particularly relevant for lawyers:

(1) The client sets the objectives: “a lawyer shall aide by a client’s decisions concerning the objectives of representation.” TRPC R. 1.2(a).

(2) In a criminal case, decisions concerning certain matters are expressly reserved for the client: these include the client’s decision “as to a plea to be entered, whether to waive a jury trial, and whether the client will testify.” TRPC R. 1.2(a). There may be other comparable matters of similar importance that are always for the client to decide. It’s possible that the Supreme Court will add to this list in McCoy. (3) In carrying out the client’s objectives, a lawyer may refuse to perform any act the lawyer reasonably believes to be unlawful: See Restatement (Third) of the Law Governing Lawyers § 23(1).

(4) The fact that a client has diminished capacity does not give the lawyer unlimited authority to act: Rule 1.14 advises that a lawyer must, as far as reasonably possible, maintain a normal client-lawyer relationship with a client with diminished capacity. This would ordinarily mean carrying out the client’s wishes until it is determined that the client lacks the capacity to make adequately informed decisions.

(5) A lawyer must reasonably consult with the client as to the means by which the client’s objectives are to be pursued: the more important the decision is, the more likely it is that meaningful consultation will actually need to take place prior to the lawyer taking action. See TRPC Rules 1.2(a), 1.4(a)(2).

(6) In the event of a fundamental disagreement as to tactics, a lawyer may seek to withdraw from the representation: See TRPC Rule 1.16(b)(4).

(7) If withdrawal is not permitted in the event of a fundamental disagreement, agency principles may control: In McCoy’s case, it appears that McCoy and English had a fundamental disagreement over the means to be used, and English was not permitted to withdraw. “Because a representation concerns a client’s affairs and is intended to advance the client’s lawful objectives as the client defines them (see § 16), the client has general control over what the lawyer does.” Restatement (Third) of the Law Governing Lawyers § 22 cmt. b. If the lawyer and client have a fundamental disagreement as to the means to be used to accomplish the client’s objectives and the lawyer is not permitted to withdraw, standard agency principles would dictate that the lawyer must abide by the client’s decision, no matter how foolish.

If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835.

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BARRISTERS HIGH SCHOOL MOCK TRIAL COMPETITION

The Knoxville Barristers would like to extend a special thank you to the attorneys and law students who served as bailiffs, scoring judges, and presiding judges during the 2018 Knoxville Regional High School Mock Trial Competition. There were nine teams that participated, Carter High School, Farragut High School, Jefferson County (Blue Team) High School, Jefferson County (Red Team) High School, Knoxville Catholic High School, L & N STEM Academy, Maryville High School, Powell High School, and Seymour High School, and Jefferson County’s “Blue” team won the competition and will proceed onto the state tournament in Nashville. Each team and student who participated is owed sincere congratulations for a job well done!

Attorneys

Nick Armes, Jason Collver, Meagan Davis Collver, Daniel Ellis, Kathryn Ellis, Matthew Evans, Jacob Feuer, Bryce Fitzgerald, Jeremey Goolsby, Magistrate Robin Gunn, Chelsea Harris, Courtney Houpt, Katie Jones, Soojin Kim, Matt Knable, Keith Lowe, Christina Magrans-Tillery, Amanda Morse, Nate Ogle, Mitchell Panter, Samantha Parris, Ashley Salem, Allison Starnes-Angela, Betsy Tonkin, Amanda Tonkin (Chair), Kevin Tonkin, Elizabeth Towe, Mikel Towe and Sarah Watson (Chair).

Law Students

Bridgett Campbell, Jessie Crane, Taylor Drinnen, Emily Horton, Elton Hutton, Alyssa Koval, Aubrey Maples, Blake Mullins, Lyndsey Phillips, Keri Rule, Chuck Sharrett, Dale Sweeney, Tyler Toma and Courtney Walker.

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April 2018

barrister bullets MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of every month at the Bistro by the Bijou (807 South Gay Street). Social time begins at 5:00 p.m., and the meeting begins promptly at 5:15 p.m. The next meeting will be held on April 11, 2018. There are many opportunities to get involved, so please contact Barristers President Mitchell Panter (tmp@painebickers.com) or Vice President Mikel Towe (mtowe@lewisthomason.com) for more information.

ACCESS TO JUSTICE The next Veterans Legal Clinic is scheduled for noon on April 11, 2018, at the Knox County Public Defenders’ Community Law Office from 12:00 p.m. to 2:00 p.m. If you are interested in signing up for the Veterans Clinic, you can do so on www.knoxbar.org (click on CLE & Events, All Events, Upcoming Legal Clinics).

The next Tennessee Faith & Justice Alliance Legal Advice Clinic will be on April 7, 2018 at Second United Methodist, 1524 Western Ave, Knoxville, TN 37921. In the Knoxville area, the program is coordinated by the KBA’s Access to Justice Committee, Legal Aid of East Tennessee, the UT College of Law, and the generous lawyers, law students, and others volunteering their time and talent. If you are interested in signing up for the Legal Advice Clinic, please register on do so on www.knoxbar.org (click on CLE & Events, All Events, Upcoming Legal Clinics).

ATHLETICS Join us at Main Event on April 19th for the first annual Barristers Bowling Night. Bowling will begin at 6pm. The registration fee is $25 and includes the cost of bowling for two hours, shoe rentals, and food catered by Main Event. Cash bar will be available. Prizes will be awarded for the highest score, most strikes in a row, and more! If you are interested, you can register through the KBA website. Registration closes April 11th.

HUNGER AND POVERTY RELIEF The Barristers’ annual Professional Clothing Drive will take place April 9 - 23. Drop-off locations in Knoxville include the First Tennessee building, BB&T building, Bank of America building, federal courthouse, LMU Duncan School of Law, UT College of Law, the City-County building (3rd and 6th floors), and Baker Donelson’s office. Citizens First Bank in Oak Ridge is also collecting donations. Please contact Courtney Houpt (crhoupt@gmail.com) or Meagan Collver (mdaviscollver@londonamburn.com) with any questions or for more information!

LAW WEEK AND SCHOOL OUTREACH The Law Week and School Outreach Committee is seeking nominations for the Law & Liberty Award. All nominations must be received by April 13, 2018. The recipient should be visible to the legal profession and local bar association. Please pass along this request to others in your firm and ask that they also submit their suggested nominees to Luke Ihnen at lihnen@londonamburn.com. The winner will be selected by the Barristers Executive Committee and recognized at the Law Day Luncheon on May 3.

MEMBERSHIP Please join us for the Barristers and KBA Happy/Social Hour on May 17, 2018 from 5:00-7:00 p.m. at Balter Beer Works, located at 100 S. Broadway. Balter Beer Works is a great local brewery with great beer and food. Come out, have a drink and socialize with your friends and colleagues!

The CLE Committee and the Barristers present its first Summer Fun Series, “Everything You Ever Wanted to Know about Sports Law” on May 1, 2018 from 5:15 - 6:15 p.m. at Lindsey Nelson Stadium, The Porch. This CLE is presented by Terry Adams. Tennessee vs. Morehead State baseball game will follow the CLE and the first pitch is at 6:30 p.m. Registration fee includes admission to baseball game, CLE credit, a boxed meal and beverages (beer, water & soda). When registering please choose your option for the box meal (Burger, Chicken, Italian Sausage or Smokey Hot Dog). Due to space limitations this event is limited to 40 people.

VOLUNTEER BREAKFAST The Volunteer Breakfast is a Barristers’ project. On the fourth Thursday each month at 6:15 a.m., the Barristers and their volunteers serve breakfast to individuals participating in the services of the Volunteer Ministry Center. If you are interested in sponsoring a breakfast or volunteering to prepare and serve breakfast, please contact Paul E. Wehmeier at pwehmeier@adhknox.com, Matthew Knable at knablelaw@gmail.com, or sign up at http://www.knoxbar.org/KBA-News/help-volunteer-ministries.

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HIDDEN KNOXVILLE By: Angelia Nystrom University of Tennessee Institute of Agriculture

THE SAVAGE HOUSE AND GARDEN

As East Tennesseans, we are blessed to live in one of the most beautiful places in the world. I recently attended a national meeting of the Garden Club of America, where, upon learning where I lived, attendees often proclaimed that I was the “luckiest of them all” to be from a place with four seasons and natural beauty during each one of them. It is true – we live in an area rich in biodiversity and with a natural beauty that changes throughout the year.

In Knoxville, we are also fortunate to have beautiful public gardens.

The Knoxville Botanical Garden and Arboretum has grown into a destination location (and is host to countless brides wanting just the right photograph). I am fortunate to have an office that overlooks the University of Tennessee Gardens in Knoxville, which (along with gardens in Crossville and Jackson) are the State Botanical Gardens of Tennessee.

On any given day, you might find me there with a sack lunch from the POD in the vet school. If I need to formulate my thoughts for a project or just clear my head, there truly is no place better. I have also been fortunate enough to visit the gardens at a number of private homes in our area.

There is a certain peace that one can find in a garden, and we are fortunate to have a number of beautiful ones in our area.

As a member of the Knoxville Garden Club and as someone who has taken the required courses to become a Tennessee Master Gardener, I have often prided myself as someone who is “in the know” about gardens. As someone who works for the UT Institute of Agriculture, I ought to know about these things.

However, a couple of weeks ago, one of my colleagues at UTIA told me about a garden that he had visited – one that I had never heard of.

And one that is in my backyard.

The Savage House and Garden is one of Knoxville’s best-kept secrets and is a real treasure to our area. Located at 3237 Garden Drive in Fountain City, the house and its garden are on the National Register of Historic Places. To fully appreciate this hidden gem, you need to know its history.

The Savage House and Garden are named for Arthur Savage, an immigrant from Leamington Spa, England, who moved to America in 1886 when he was 14 years old to work for his older brother, William, who had a machine shop in Knoxville. Seven years later, Arthur started Ty-Sa-Man, a company that manufactured flour mill machinery and, later, marble cutting machines. It was located in the area that is now World’s Fair Park.

In July 1917, Arthur and his wife, Hortense, moved to Fountain City into a house whose backyard had no trees – just a sinkhole and a pigpen.

Arthur loved nature and longed for the English gardens of his youth.

He immediately started gardening, beginning just outside his back door.

Within a year, however, he had an elaborate design of flower beds in the backyard, and he planted a few trees, which grew rapidly.

Also within a year, Savage had the first of two water towers built, as well as a series of ponds. After a trip back to England in 1925, Savage got ideas for an even larger pond, a pump house and an elaborate pagoda. He put those ideas to use when he returned to his Fountain City home.

Arthur Savage poured his heart and soul – and considerable financial resources – into his garden. The garden is said to have been at its peak between 1926 and 1930.

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Then, things took a turn for the worse. The Great Depression, which started in 1929, caused Savage’s business to decline. The resulting decline in income forced Savage to have to reduce (and ultimately eliminate) the time his longtime gardener, Charlie Davis, spent on the job. Then, in 1934, a tornado struck Fountain City, uprooting 19 trees in the garden.

The destruction of the trees tore up the rock foundations in the gardens and caused costly leaks in the ponds. Finally, Savage’s death in 1946 caused the gardens to become even more neglected, as there was no one left with the same love of gardening and vision for the gardens that Savage had.

During the next 50 years, the gardens were neglected, but they never were altered. Wildflowers spread, as did English ivy and honeysuckle. The trees that remained grew tall and their canopies spread, causing the kinds of plants that would flourish in the gardens to change from sun-loving specimens to shade dewellers. As happens with nature, they continually evolved.

In 1986, Bill Dohm and Patty Cooper bought the bungalow/ craftsman-style house and 1.7 acre garden from Arthur Savage’s descendants. (They also own and run the Garden Montessori School nearby). Under their watchful eyes, the Savage Garden has been restored to its former glory. Dohm and Cooper now employ two full-time gardeners, who carefully tend to the plants, paths and structures in the garden.

Savage Garden boasts a 1926 greenhouse, beautiful entryways and original rock walls and garden art. Savage Garden also features a stone water tower, stone bridges and benches, and Japanese garden art (which was very popular in the early 20th century). The signature structure, though, is a large pagoda, which sits in the garden. If you visit, look closely at the top of the pagoda. The mortar between the large stones contain six little pebbles which were placed by gardener Charlie Davis’ daughter to commemorate her sixth birthday.

The Savage Garden is one of our local treasures that is “hidden in plain sight.” If you have never visited (or if it has been a while since you last visited), please take time to check out the Savage Garden. Admission is free, and parking is free (and is located within steps of the garden’s entryway). You won’t be disappointed in this hidden gem.

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WELL READ By:

Elizabeth B. Ford Federal Defender Services

BOOK REVIEW: GOING ALL-IN ON DIVERSITY AND INCLUSION: THE LAW FIRM LEADER’S PLAYBOOK

Of course, our office does what organizations should do to have a diverse workforce. We advertise in a variety of places, and if no one applies, it must be because no one wants to live in Knoxville or the bar here is just homogenous and that is not our fault. If we do hire someone other than the European American male, we can then check the diversity box, pat ourselves on the back, and move on. And all of this just shows what nice people we are. Is that what you think, too? Is that an accurate conclusion? Well, not exactly.

In Going All-In on Diversity and Inclusion: The Law Firm Leader’s Playbook, Kathleen B. Nalty will disabuse law firm leaders of those notions while providing easy to follow checklists and suggestions for truly moving to diversity and inclusion which actually means better business outcomes. (Did you think that diversity and inclusion were only social niceties that were to make leaders feel good?)

In less than 150 pages, Kathleen Nalty teaches, provides instruments to help assess where a law firm stands in diversity and inclusion, and gives advice as to how to become highly skilled and achieve critical success. She is well-qualified with a J.D. from the University of Colorado and experience in the Criminal Section of the Civil Rights Division of the Department of Justice. She cofounded a hate violence task force and a regional legal diversity job fair, and she is a consultant and speaker who teaches how to create cultures of inclusion. (Her book is available for a 30% discount to KBA members. Write her at www. kathleennaltyconsulting.com to order the book.)

In addition to providing “how to” information, the book makes three points. The first is that diversity is important in that it is good for business. Second, leaders must commit to diversity and to inclusion.

Last, diversity and inclusion must be embraced by everyone in the firm by identifying barriers and biases in order to be successful.

There is a body of research that supports Nalty’s point that being better at diversity and inclusion should increase a law firm’s market share. In addition, there are savings when an organization is diverse and practices inclusion. More diverse organizations work better together and people stay longer. When people are committed to an organization, there is less turnover, and the very high expenses of frequent turn over are avoided.

Leaders must remain involved past the actual hiring in supporting diversity and encouraging inclusion. Having a diverse workforce is not sufficient. Leaders must be involved in identifying barriers that prevent diverse employees from being fully included, and they must be involved in removing those barriers. This requires being intentional and being sure that all staff have the same opportunities. The book points out several instances of how leaders act on their implicit biases and favor those employees who are more like the leaders over those who are different.

Once the foundation is laid for understanding the importance of diversity and inclusion, the book assists the reader in assessing where they stand and guides them to improvement. Following the suggestions and working through the various checklists should lead to real change from which we will all benefit.

Leaders must be involved in identifying barriers that prevent diverse employees from being fully included, and they must be involved in removing those barriers.

WELCOME NEW MEMBERS THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS:

NEW ATTORNEYS Hon. Brian W. Abrams Ontario Superior Court of Justice

Christina A. Moradian TVA – Equal Opportunity Compliance

Sheera H. Hobfoll Illinois Gaming Board

William Ethan Smartt Greg Coleman Law PC

Jimmy D. Holbrook Quist, Fitzpatrick & Jarrard, PLLC

Gary C. Vowell Luminus Diagnostic, LLC

Dustin R. Landry Landry & Azevedo Attorneys at Law

Jared Q. Windham Windham Law, PA

John L. Medearis U.S. District Court - Chattanooga

NEW LAW STUDENT MEMBERS Julianne Curlis Elijah C. Lovingfoss April 2018

DICTA

Janette Switzer Macey Woldt

25

YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris Lincoln Memorial University Duncan School of Law

AN ENCOUNTER WITH DR. DEATH

Perhaps I should have been frightened. It was early morning. The street was deserted. Nothing stirred.

An old man rode up to the corner. He was on an old man’s bicycle – a big tricycle, actually – festooned with political signs, its large, wire basket filled with campaign literature. But it was not the bike that captured my attention. It was the rider. I recognized his white hair, his weathered face, from hundreds of news reports: it was Jack Kevorkian.

Dr. Death.

We were in Royal Oak, a suburb of Detroit, where he had returned after his parole a year earlier. He had been sentenced to ten-to-twentyfive years in prison, but was released after serving only eight, for good behavior, and, I suspect, because he was dying of hepatitis C.

We looked at one another. I hesitated, then said, “Good morning, Doctor. Please don’t kill me.”

No, I didn’t. What I actually said was something like, “I teach my law students about you every year.”

He smiled and shook my hand. His grip was gnarled and loose.

Then, to my surprise, he started talking, quite cogently, about the Ninth Amendment, which provides that “[t]he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”1 One of those rights “retained by the people,” he insisted, was the right of a competent adult to end his or her own life. After a brief but remarkable discussion – how often do you discuss the Ninth Amendment, on a deserted sidewalk, with a man who bears a striking resemblance to Gandalf the Grey and claims to have presided over the deaths of more than a hundred people? Yeah. Thought so – Dr. Kevorkian politely said, “Well, I must be on my way.”

“To where?” I asked.

“To a political rally.” He was running for Congress. At the age of eighty.

Physician-assisted suicide has not been much in the national news lately. For the past twenty years, it has been largely a matter of state law and politics, thanks to the United States Supreme Court’s decision in Washington v. Glucksberg,2 which found no fundamental right to end one’s own life under the Due Process Clause of the Fourteenth Amendment.

The Court famously stated, in an opinion authored by Chief Justice Rehnquist, that “[t]hroughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.”3

That debate continues to this day, most notably, of late, in New York, where that state’s highest court rejected a state constitutional challenge to New York’s prohibition of physician-assisted suicide.4 I recently interviewed two advocates, on opposites sides of the issue, on my public radio show.

Norman Cantor is an emeritus professor at Rutgers Law School, who has written about, and litigated, many cases involving end-of-life decisions, including the case of Karen Ann Quinlan.5 Ms. Quinlan, who had fallen into a persistent vegetative state after mixing alcohol and other drugs, made headlines in the 1970’s when her parents petitioned a state court for permission to remove her ventilator. The New Jersey Supreme Court ultimately ruled in favor of the parents, based upon Ms. Quinlan’s right to privacy.

Professor Cantor believes that criminalization of physician-assisted suicide is irrational, and thus unconstitutional, because there is no logical distinction between withholding medical treatment and actively intervening to end life. He points out, moreover, that most states

26

allow physicians to treat pain in terminally-ill patients, even with the knowledge that such treatment will hasten death. What is the difference, Professor Cantor asks, between such actions and the intentional administration of drugs to humanely cause death?

Samantha Crane sees a significant difference. As a board member of the disability-rights organization “Not Dead Yet,” Ms. Crane is concerned that the decriminalization of physician-assisted suicide may devalue the lives of those with disabilities. Indeed, she feels that it may add to the pressure that many disabled people already feel to end their lives. Often, she says, those with disabilities receive unsolicited, perhaps well-intentioned, offers of assistance in committing suicide. What a chilling thought. How often has your physician suggested that you kill yourself?

For the time being, such questions remain more political than constitutional. Several states, including Washington, have legalized physician-assisted suicide, at least for those in the last stages of terminal illness, and within strict guidelines. So have several foreign countries, including Canada and Switzerland. Thus far, Professor Cantor points out, there has been little difficulty or controversy associated with such legalization.

But Samantha Crane’s concerns persist. As do the deep moral and religious objections to suicide that many people feel.

I recall my last impression of Dr. Kevorkian, slowly pedaling his way into a congressional race he was destined to lose. I hoped to see him again, to invite him to speak to my law students, but it was not to be.

Three years after our brief meeting, Dr. Death met his own demise, by all accounts a peaceful one, of natural causes.

U.S. Const., Amendment 9.

Glucksberg, 521 U.S. 702 (1997). In a case decided the same day, Vacco v. Quill, the Court held that a New York law prohibiting assisted suicide did not violate the Equal Protection Clause. Vacco, 521 U.S. 791 (1997). “Everyone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide.” Vacco, at 800 (emphasis in the original). The Court further held that “we think the distinction between assisting suicide and withdrawing life-sustaining treatment, a distinction widely recognized and endorsed in the medical profession and in our legal traditions, is both important and logical; it is certainly rational.” Id. at 800-801 (footnote omitted).

3 Glucksberg, 521 U.S. at 731.

4 Myers v Schneiderman, 85 N.E.3d 57 (N.Y. 2017).

5 In re Quinlan, 755 A.2d 647 (N.J. 1976).

1 2

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify.

DICTA

April 2018

LONG WINDED By:

Jason H. Long London Amburn

A MATTER OF PERSPECTIVE

On May 12, 1846, a group of 87 intrepid American pioneers led by George Donner and James Reed set out from Independence, Missouri for southwest California, to begin a new life for their families. On February 27, 2018, I headed out from Knoxville, Tennessee to attend a conference in San Diego, California. The Donner Party trip was expected to last anywhere from four to six months. According to my online American Airlines itinerary, my flight was expected to last a little over 8 ½ hours, including a one-hour layover in Dallas, Texas.

The Donners, and their compatriots, pulled out with over 30 covered wagons carrying supplies for the arduous journey. I managed to cram all of my clothes in a single carry-on, to assure I did not have to pay any fees for a checked bag. In 1846, they followed the infamous Oregon Trail west, as the safest route for settlers travelling through often inhospitable lands. The most difficult part of my journey was to be navigating the concourse from Gate B13 to Gate H3 in the Dallas airport.

Food was scarce and sickness (particularly tuberculosis) was prevalent in 1846 for settlers travelling across the country. I had a PowerBar in my carry-on and, while the lady sitting two rows up from me on the Knoxville to Dallas leg didn’t look too good, I had a portable bottle of Purell Hand Sanitizer and felt comforted by that fact.

Problems began for the Donner Party when they reached Fort Bridger in Wyoming. To promote his new route to the west, entrepreneur, Lansford W. Hastings, distributed flyers to traveling settlers advertising the “Hastings Cutoff,” which was said to be a quicker route, through less rugged terrain.

The Donner Party, already delayed in their travels, were enticed to follow the new route to make up for lost time, over the objections of the matriarch of the family, Tamsen Donner (great name). I realized that I was going to have problems when my plane sat on the runway in Dallas for what seemed like an excruciatingly long period of time. We landed but we clearly weren’t advancing to any gate to unload. No one could give us an explanation why and our flight attendant, Caroline (a good name, but not nearly as good as Tamsen) seemed distressed and flustered, probably because of the number of irate passengers who wanted to get off the plane.

The Hastings Cutoff proved to be a much more difficult journey than anticipated. It took nearly two months to traverse the Wasatch Mountain Range in Utah and the settlers did not reach the Great Salt Lake until August 20. I was sitting at the back of the plane and had to wait for every passenger in front of me to struggle with their bags from the overhead bins and disembark the plane. I sprinted toward my gate (a fairly comical sight for those who know me) but did not arrive until 5:44 p.m., less than 5 minutes before my flight was to take off.

The poor decision-making and difficult journey led to in-fighting amongst the party as to who should be leading them. I got into an April 2018

argument with the gate attendant who told me the door to the plane had already been shut and I could not board. Many in the Donner Party questioned whether the affable George Donner was tough enough to lead the difficult expedition, but when his rival, James Reed, plunged a knife into the chest of a hired hand he had a disagreement with, Reed was banished from the party and any thought of alternative leadership was forsaken. I felt like plunging a knife into the chest of the gate attendant, but TSA probably would have stopped me.

The party continued on through its difficult path, splintering into smaller disjointed groups, often distrustful of one another. I didn’t believe a word any of the ticketing agents were telling me when they claimed the next two flights to San Diego were overbooked, but I might get lucky. By the time the Donner Party reached the foot of the Sierra Mountains, it was already late October. The group was told that snow would not begin to fall until late November and so they pushed on in the hopes that they would enjoy enough luck to get through. I finally boarded a plane around 8:30 p.m., feeling hopeful that I would get to my room before midnight and the room service menu would still be available.

Luck was not with the Donners, and winter came early to the mountains that year. After entering the range, snow began to fall and soon the party was confronted with 5-10 foot drifts, making it impossible to move forward or backward. The group was forced to set up camp next to Truckee Lake (now known as Donner lake) and ride out the winter with minimal supplies. I got stuck on the runway again and, while we waited to take off, the flight attendant ran out of peanuts, and I was forced to subsist on pretzels alone.

Weeks turned into months for the Donner Party as they were stuck in a pass in the mountains, growing weaker by the day and praying for salvation. Most people have heard of the horrors those people endured and the truly life and death decisions they were forced to make. The claims of cannibalism have been disputed by some. Regardless of whether they were forced to live off one another to survive, the four-month ordeal in the Sierra Nevada Mountains was a nightmare and has become a part of American folklore. All I can say is that it got ugly on the tarmac in Dallas waiting for the plane to take off.

Of the 87 people who ventured down the Hastings Cutoff, only 48 survived. Most of the women and children were widowed and orphaned.

Those who did survive were haunted by the experience for the rest of their lives. I collapsed on my bed around 2 a.m. (5 a.m. eastern time), disgruntled and bitter that it had taken me 18 hours to complete a journey that used to take four to six months. I was mad that I was only given free pretzels and the inflight movie selection was not to my liking.

I was frustrated that the flight attendants, assigned to make sure that I was comfortable, had to attend to all of the other passengers on the plane as well.

In retrospect, 21st century problems don’t seem too bad.

DICTA

27

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

SATISFYING OUR DRONE ENVY WITH THE DJI MAVIC PRO

We have always wanted to have a high-end professional drone of Dutifully, it headed back to the spot we had designated as “home.” our own. However, our collective flying skills are so horrible that we were

The drone returned to that destination and hovered five feet over afraid to shell out the necessary cash for a state-of-the-art drone—for ground and asked, via the screen on the smartphone, if we wanted to fear that we would crash the drone and lose our money. But when we land. We answered “yes,” and it landed perfectly. Miraculously, we went to CES this year, we saw the DJI Mavic Pro, and our jaws dropped. had successfully flown the Mavic Pro without any damage to the drone We had to have one, and that was all there was to it. So we shelled out whatsoever. $1,000 and bought it, and it was a great decision.

We then downloaded the camera footage and watched it on a 4K

When we unpacked our drone upon its arrival, we marveled at its laptop screen. Suffice it to say, the video was stunning. The DJI Go form factor. The entire drone is compact and easily transportable. It 4 app on our smartphone allowed us to edit the video and add music folds up into a small package that is about the size of a Subway sandwich. from the built-in music library that seemed appropriate for a video of (You can buy a small pouch to carry it.) And it is very easy to fly. We Big Hickory Creek during a flood stage. We marveled at the ease of the will admit that we studied the User’s Guide in detail editing and soundtracking capabilities of the app. for fear that we would crash our new toy, but actually, Check out the drone There are so many neat features on the Mavic Pro, piloting the Mavic Pro is easily learned and very and we were only able to test out a few of them. You demonstration at the can enable automated flight modes. You can fine-tune intuitive.

In essence, this is all you have to do: unfold the obstacle avoidance system (although the default Bill & Phil Show the remote and attach your smartphone to it; make obstacle avoidance system worked incredibly well).

April 13 at the the connection between the remote controller and You can instruct the Mavic Pro to fly around a point the drone; and then start up the DJI Go 4 software of interest in a perfect circle. You can instruct the KBA Law Practice on your smartphone. The screen on the smartphone Mavic Pro to fly a pre-set pattern. You can instruct allows you to instruct the Mavic Pro to tell it where the Mavic Pro to follow you wherever you go, or follow Today Expo. “home” is. (You merely push the “home” button.) a selected person or any other moving object, such as a Magically, the Mavic Pro then knows the exact location for its return. car or even a deer or coyote.

You then press another button telling the drone to take off. You will

The return home feature is quite impressive. Although we did not be asked if you are “sure you want to take off ” on the screen of your test it out, if the communication between the Mavic Pro and the remote smartphone. Then, you slide the control on your phone’s screen to make is disrupted, the Mavic Pro will automatically return to its take-off point the drone take off. It will hover about five feet off the ground, waiting and land. If the Mavic Pro is running low on battery power, it will return for your commands from the remote control and your smartphone. Then home and land before it runs out of power. things get really interesting.

You can also fly the Mavic Pro without the remote controller and

We took the Mavic Pro out to Bill’s farm and flew it to follow simply use your smartphone. You have to switch the drone to fly via the path of the Big Hickory Creek behind the farmhouse. The image Wi-Fi controls from your smartphone. This feature, along with the from the Mavic Pro’s 4K, 20 megapixel camera was stunning on the so-called Tripod Mode, will allow you to fly the drone indoors without smartphone. endangering the people around you or yourself. With a little practice,

We flew the drone over the top of Big Hickory Creek so far that we we think we can fly the Mavic Pro at our next Bill & Phil Show. If you could no longer see the drone. We could only watch the camera image come see us, don’t forget to duck! on the smartphone screen to determine its location. After we had flown the drone about a mile away from us, we lost our nerve and used the controls to turn it around and bring it back home. It supposedly has a four-mile range, but we were not sure what would happen if we flew it that far away. The drone is also very fast. It can reach speeds up to 40 miles per hour and will fly for approximately 30 minutes on one battery charge.

After we turned the drone around and began flying it back home, it stopped and announced over the speaker on our smartphone that it had encountered an obstacle, and it stopped. It appeared to us that it was too close to a tree branch, so we merely commanded the Mavic Pro to go up another 10 or 20 feet and then commanded it to continue flying.

It resumed its flight path and headed back. Then, as we could hear the drone coming before we could see it, we touched the home button on the smartphone screen to command the Mavic Pro to return home.

28

DICTA

April 2018

BENCH AND BAR IN THE NEWS How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to Marsha Watson at mwatson@knoxbar.org.

PARALEGAL ASSOCIATION The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, April 12, at 12:00 p.m. at the Blount Mansion Visitors Center, Knoxville, Tennessee. Jason K. Baril, Esq., of Ogle, Elrod & Baril, PLLC, will be presenting Social Security Disability. A lunch buffet is available at the cost of $12/person with reservations. Please contact Caroline Sudlow, ACP, at president@smparalegal.org or 865-2153676 for additional information and/or lunch reservations.

ANDREA C. ANDERSON JOINS LEWIS THOMASON LAW FirmLewis Thomason is pleased to announce that Andi Anderson has joined the firm and is based in the firm’s Knoxville office. Andi’s primary focus is estate planning, probate, and trust administration. Her practice routinely includes federal and state taxation, business formation, and charitable organizations ranging from formation and operations to dissolution.

ONLINE LEGAL HISTORY VIDEOS In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law.

With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources.

FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates.

Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource.

CAN YOU DONATE AN HOUR TO HELP A NONPROFIT? The KBA and its participating attorneys recognize that many small to mid-sized nonprofit organization have legal questions, but not the resources to retain legal counsel. Participating attorney agrees to provide up to one hour of pro bono legal assistance to 501(c)(3) tax-exempt organizations with a budget of $1,000,000 or less.

Through this partnership, nonprofit staff and boards are assured timely and accurate answers while providing attorneys with a satisfying but not overwhelming way to perform pro bono service.

If you are willing to help, contact the KBA Office at 522-6522.

SCHOLARSHIP AVAILABLE TO HIGH SCHOOL SENIORS The law firm of Bond & Botes, PC is offering a $2,000 Financial Hardship Scholarship to high school seniors in Alabama, Mississippi, and Tennessee. Applicants must be entering college in the Fall of 2018. Applicants should have a cumulative GPA of 3.0 or above. Applicants are asked to submit a short essay describing how they have overcome financial hardships and what they have done to help others overcome hardships.

The application deadline is July 1, 2018 and a copy of an acceptance letter from an accredited U.S. undergraduate school must accompany the application. The scholarship will be made directly to the student’s school to be applied towards tuition. Read the press release under the News section at www.knoxbar.org.

April 2018

OFFICE SPACE AVAILABLE: •

•

3,000-plus s.f. of office space near downtown. Easy access. Downtown views. Ample parking. Two suites of five offices, plus five separate offices. Spacious, attractive lobby. Common kitchen. Highly responsive, nonprofit, landlord on premises.

Call 865-525-6806 for information.

Contact Frank Graffeo at 525-6806.

Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 2,000 sq ft.

Present floor plan accommodates four offices plus a conference room and a reception area. Would consider dividing space. One Level. Offices on either side occupied by long-term law firms. Two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.

GOING ALL-IN ON DIVERSITY AND INCLUSION: THE LAW FIRM LEADERS PLAYBOOK KBA Members will receive a 30% discount on the price of the book Going ‘All-In’ on Diversity and Inclusion: The Law Firm Leader’s Playbook. Kathleen Nalty is a former practicing attorney who has devoted her professional career to her passion for diversity, civil rights, and inclusion. Over the years, she has advised law firms of all sizes, corporate law departments and government legal offices about ways to make their workplaces more inclusive. Email Kathleen@ kathleennaltyconsulting.com and mention the 30% discounted rate offered to KBA members.

DICTA

GAP GUIDEBOOK AVAILABLE The Grandparents As Parents (GAP) program received a generous grant from the Trinity Foundation to produce a guidebook designed especially for grandparents who are raising their grandchildren. If you or someone you know would like to have a copy of the guidebook, or if you would like more information about the program, call Tracy Van de Vate at 865-5242786. This free book provides information and resources a grandparent needs to know, and addresses the subjects of child care, education, health, custody and legal issues, technology, and other important information.

GAP also offers monthly informational and supportive meetings made up of people who understand what it is like to parent a second time.

Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records: Devin S. DeVore McKellar & Easter BPR #: 032069 412 Ebenezer Road Knoxville, TN 37923 Ph: (865) 566-0125 dsd@helpingclients.com Sarah C. Easter McKellar & Easter BPR #: 026281 412 Ebenezer Road Knoxville, TN 37923 Ph: (865) 566-0125 sce@helpingclients.com Norman D. McKellar McKellar & Easter BPR #: 022186 412 Ebenezer Road Knoxville, TN 37923 Ph: (865) 566-0125 ndm@helpingclients.com F. Scott Milligan F. Scott Milligan, Attorney BPR #: 013886 P.O. Box 12266 Knoxville, TN 37912-0266 Ph: (865) 522-3311 Robert Joseph Parkey, Jr. Woolf, McClane, Bright, Allen & Carpenter, PLLC BPR #: 035454 900 S. Gay Street 900 Riverview Tower Knoxville, TN 37919-3606 Ph: (865) 215-1000 jparkey@wmbac.com

29

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

PRO BONO PROJECT By: Kathryn Ellis Pro Bono Director Legal Aid of East Tennessee

What Can LAET Do? Part One: What LAET Can’t Do

So far this year, I have discussed who is eligible for LAET’s services based on both income-eligibility and asset-eligibility. The next question that we hear most often is, “What can LAET do?”

Answering this question is often easiest if we start by telling people what LAET can’t do as an LSC grantee.

According to Legal Services Corporation (LSC), LAET is subject to the following “Restricted Activities Subject to Limitations and Exceptions Established by Law”: • No participation in any abortion litigation (Pub. L. 104-134, Tit. V, Sect. 504(a)(14)).

• No participation in non-litigation activities involving abortions except for some therapeutic situations (but not against providers with religious or

moral objections) (42 U.S.C. 2996f(b)(8)).

• No assisted suicide or euthanasia activities (45 C.F.R. Part 1643).

• No influencing the time and manner of a census (45 C.F.R. Part 1632).

• No participation in any class actions (45 C.F.R. Part 1617).

• No criminal cases, except for tribal courts or some court appointments (45 C.F.R. Part 1613).

• No engaging in or encouragement of public demonstrations, picketing, boycotts, or strikes.

• No involvement in public-school desegregation proceedings (42 U.S.C. Sect. 2996f(b)(9)).

• No involvement in proceedings involving selective service registration or desertion (42 U.S.C. Sect. 2996f(b)(9).

• Grantee attorneys may not run for partisan elected offices (45 C.F.R. Part 1608).

• No defense of persons charged with making, selling, or distributing illegal drugs in most public-housing evictions involving health and safety (45

C.F.R. Part 1633).

• No representation in fee-generating cases unless private lawyers are not available or the case meets one of the exceptions stated in (45 C.F.R. Part 1609).

• No habeas corpus cases challenging criminal convictions (45 C.F.R. Part 1615).

• No lobbying of any government office, agency, or legislature and no lobbying regarding oversight of LSC or its recipients, subject to the statutory

exceptions below; no lobbying training (45 C.F.R. Part 1612).

o A grantee may use non-LSC funds for lobbying on issues involving its own state or local funding (45 C.F.R. Part 1612).

o A grantee may use non-LSC funds for responding to public rulemakings or to written requests from the government (45 C.F.R. Part 1612).

• No filing or pursuing a lawsuit against LSC (Pub. L. 104-134, Tit. V, Sect. 506).

• No representation of non-U.S. citizens unless specifically allowed by statute or

regulation (45 C.F.R. Part 1626). Major statutory exceptions include:

o permanent residency and limited other lawful statuses

o victims of domestic violence, trafficking, and other abuses

o special situations such as international child abduction and citizenship in certain

Native American tribes or Pacific island nations. : • No organizing any association, federation, labor union, coalition, network, alliance,

or similar entity (45 C.F.R. Part 1612). * April 7 (9:00-12:00) – Faith & Justice Clinic/Knox • No participation in political activities, election campaigns, ballot measures, initiatives County Saturday Bar at Second United Methodist

or referendum, voter registration, or voter assistance (45 C.F.R. Part 1608).

Church, 1524 Western Avenue • No political test for any decision or actions (45 C.F.R. Part 1608).

• No trainings for or providing information about lobbying, political activities, advocacy * April 11 (12:00-2:00) – Veterans Advice Clinic at for public policies, or supporting activities (45 C.F.R. Part 1612). the Public Defender’s CLO • No civil litigation for prisoners (45 C.F.R. Part 1637).

• No communications or expenses association with any of the entity restrictions * April 21 (9:00-12:00) – Blount County Saturday

(Pub. L. 104-134, Tit. V, Sect. 504(a)(6)).

Bar at LAET’s Blount County office • No involvement in any legislative, judicial, or elective redistricting ___________________________________________

(45 C.F.R. Part 1632).

• No grantee employee may engage in or encourage rioting, civil disturbances, or * May 5 (9:00-12:00) – Debt Relief Clinic at the

violations of law, court injunctions, or professional rules for attorneys Public Defender’s CLO

(45 C.F.R. Part 1612).

• No representation of persons after giving them unsolicited, in-person advice to take * May 5 (9:00-12:00) – Knox County Saturday Bar at

legal action (or obtain a lawyer) for their specific legal problems (45 C.F.R. Part 1638).

LAET’s Knox County office • No activities involving welfare reform other than cases for individual benefits or

otherwise allowed uses of non-LSC funds for responding to government request or * May 9 (12:00-2:00) – Veterans Advice Clinic at the

public rulemakings (45 C.F.R. Part 1639).

Public Defender’s CLO

Mark Your Calendars

Want to Volunteer?

Fill out our new Pro Bono Volunteer Survey: https://www.surveymonkey.com/r/DCTWYFS

*

May 19 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County office

The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902

phone (865) 637-0484 e-mail:kellis@laet.org fax (865) 525-1162

30

DICTA

April 2018

Q: A:

THE LAST WORD By:

Jack H. (Nick) McCall

Esther, you are an author, pianist, attorney, and equestrian. Do these diverse fields intersect at all?

ESTHER L. ROBERTS Global Intellectual Property Asset Management, PLLC

Believe it or not, they do intersect, and in several ways. One example: two years ago the horsewoman within me got so upset with the ongoing abuse of Tennessee Walking Horses via an illegal, but nevertheless rampant practice known as “soring,” I thought, “there must be something I can do!” My law practice encompasses intellectual property and estate planning. So I reviewed the trademark portfolio of the governing body of the walking horse industry, and wrote a law review article on how one might leverage compliance with the Horse Protection Act by attacking the validity of the trademark portfolio. Soring is illegal, and it is a violation of the Lanham Act (trademark law) to trademark any entity, including nonprofit organizations, that indulge in illegal acts.

Another example: several years ago, before I attended law school, I read a book of poetry by Leonard Nimoy.

Each time I read a poem, I did not hear words in my head, I heard a chorus! By the time I had finished the book of poems, I had written a cantata for youth choir, with Nimoy’s poetry as the lyrics. Of course I needed his permission to use his copyrighted lyrics, so I – as a pianist and composer – contacted Nimoy’s attorney and requested permission to use Nimoy’s poetry with my compositions for youth choir. Nimoy graciously gave me a quit claim deed to all his poems for the purposes of creating the cantata. The cantata was performed by the chorus at West High School.

When I was in law school, Professor Jerry Phillips was a renowned and beloved professor. He was also an avid singer! I was delighted to accompany Jerry at Ossoli Circle for one of his final vocal recitals.

One of my best moments of “music meets law” was back in 1998, at the National Conference of Appellate Court Clerks in Skamania, Washington.

This was the summer before I began law school, and my sister, Frankie Holt, invited me to attend the Conference to begin getting acquainted with court clerks from all across the country. I met Bill Suter, who was the Clerk of the U.S. Supreme Court at the time, and his lovely wife, Jeanie. Bill was a career Army JAG prior to his appointment as Clerk, and when he found out I was a pianist, he took me aside and cooked up a scheme for the Conference banquet.

When Bill and Jeanie were young and first married, Bill was deployed in a war zone. He managed to get a 24-hour pass to Tokyo and Jeanie somehow met him there. They enjoyed one last dance in a tiny bar before he had to leave his young bride. The tune they danced to that evening became “their song.”

Fast forward several decades to the evening of the 1998 Conference banquet. Everyone was dressed in elegant attire and enjoying a lovely evening.

Bill stood up and tells the story of “their song” to all the attendees, while I quietly went to sit at the grand piano. And, in front of everyone, Bill took the hand of his precious wife and this pianist had the great privilege of playing, “Lara’s Theme - the Theme from Dr. Zhivago” for a wonderful Veteran and his wife to dance to and enjoy tender memories from a night, long ago, in Tokyo. I have played critically-acclaimed classical recitals, but no performance has meant more to me than that evening in Skamania.

My writing and riding also intersect in interesting ways. A few months ago, I began a journey of self-discovery with the end goal of getting fitter, thinner, and becoming a better equestrian. My current riding partner is a young BLM mustang named Kaliwohi. Pronounced, “collie-whoa-hey,” Kaliwohi is Cherokee and means “perfect.” I adopted Kaliwohi as a yearling through the BLM’s online auctions. He was captured off the Muskrat Basin range in Wyoming. Mustangs have extremely an efficient metabolism and Kaliwohi also needs to trim down and get fit, as well as be trained under saddle.

So, in a very public and rather humiliating way, I published photographs of myself at my then-highest weight and began writing about my journey towards fitness and inner peace. The international equestrian publication, HorseNation.com, liked this idea so much they asked me to write a weekly column to track my journey with Kaliwohi. At the close of 2017, my weekly column, entitled, “Fat to Fit to First Level” was voted “Reader’s Choice Award” by HorseNation.com’s readers.

These days, I continue to find ways to blend my varied interests. I am church pianist for St. Mark United Methodist Church in Clinton. Along with my HorseNation weekly column, I am a contributing reporter for the Shopper here in town.

And I am expanding my law practice into a novel area of animal law: pet trusts.

Many pet owners have concerns about the welfare of their animal friends in the event of the owner’s incapacity or death.

Establishing a pet trust provides instructions and resources to care for animals with long lifespans. For example, certain birds and tortoises live nearly a century, and horses live an average of 30 years. Pet trusts also allow elderly people to continue enjoying the benefits of pet ownership as long as possible, without worrying about “what would happen to her if something happens to me?”

The secret to blending many varied interests begins with having excellent teachers who support a student’s diverse interests. I have been blessed throughout my life with teachers who supported each of my interests so I never had to choose one and eliminate the others. I am grateful for these teachers, and deeply grateful for all the ways God blesses my life each and every day.

“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 2018

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