DICTA.April.2019 by Knoxville Bar Association

Judicial News: Getting to Know Knox County Circuit, Juvenile and Civil Sessions Court Clerk, Charlie Susano . . . Page 7 A Community’s Response to the Opioid Crisis: America’s Substance Use Crisis: What can I do? . . . Page 13

A Monthly Publication of the Knoxville Bar Association | April 2019

THE INS AND OUTS OF EQUITY CROWDFUNDING: ONE TO A THOUSAND INVESTORS

AROUND THE BAR By: Amanda T. Tonkin Attorney Advisor – Social Security Administration

WRAP UP – BARRISTERS HIGH SCHOOL MOCK TRIAL COMPETITION The Barristers would like to extend a special thank you to the attorneys, judges and law students who served as bailiffs, scoring judges, and presiding judges during the 2019 Knoxville Regional High School Mock Trial Competition! A record number of twelve teams participated this year from nine high schools representing Districts 2, 3, and 4, including Carter High School, Farragut High School (Grey Team), Farragut High School (Blue Team), Jefferson County High School (Blue Team), Jefferson County High School (Red Team), Knoxville Catholic High School (Gold Team), Knoxville Catholic High School (Green Team), L & N STEM Academy, Maryville High School, Powell High School, Seymour High School, and Webb School of Knoxville. Each team and student who participated is owed sincere congratulations for a job well done.

Attorney Coaches: Carter High School: Nate Ogle Farragut High School, Grey and Blue Teams: Angela Fisher Jefferson County High School, Red and Blue Teams: NO attorney coach Knoxville Catholic High School, Green and Yellow Teams: Frank Dale

All twelve teams participated in the preliminary rounds, held on February 22nd and 23rd at the Knoxville City County Building. The top two teams, Farragut High School (Blue Team) and Jefferson County High School (Blue Team), advanced to the championship round held on February 24th at Lincoln Memorial University Duncan School of Law. Farragut High School (Blue Team) won the competition and, because twelve teams participated in our regional competition this year, both Farragut High School (Blue Team) and Jefferson County High School (Blue Team) will advance to the state tournament on March 22nd and 23rd in Nashville. Extra special congratulations to the four students who won individual awards as follows: from L & N STEM Academy, Will Edwards (Best lawyer for the prosecution); Reece Brown (Best lawyer for the defense); Nate Dale (Best witness for the defense); from Jefferson County High School (Blue Team), Yan Kang (Best witness for the prosecution).

L & N STEM: Allen McDonald Maryville High School: Scott Stuart Powell High School: Roger Hyman Seymour High School: NO attorney coach Webb School of Knoxville: Mike King, Cynthia Deitle, Jennifer Jenkins

First Place: Farragut High School (Blue Team)

Special thanks goes to Judicial Clerk and Mediation Director Bob Swan and the staff of the Public Building Authority for their assistance with arranging and securing the Knoxville City County Building facilities. Special thanks also goes to Assistant Dean of Student and Career Services Andrew McRee and Director of Career Services Allison Starnes-Anglea of Lincoln Memorial University Duncan School of Law for facilitating and hosting the championship round.

Attorneys

Nick Armes, Ashley Bentley, Wynne du Mariau Caffey-Knight, John Chavis, Judge Chuck Cerny, Meagan Collver, Jason Collver, Christina Daniels, Bob Dziewulski, Jenae Easterly, David Eldridge, Kathryn Ellis, Spencer Fair, Jacob Feuer, Bryce Fitzgerald, Ryan Goddard, Jerrica Harness, Chelsea Harris, Rachel Hurt, Allison Jackson, Jessica Jernigan-Johnson, Katie Jones, Soojin Kim (Chair), Matthew Knable, April McCroskey, Nate Moore, Kathryn O’Neal, Patrick O’Neal, Nate Ogle, Courtney Panter, Mitchell Panter, James Parker, Courtney Read, Melanie Reid, Ashley Salem, Chuck Sharrett, Luke Shipley, Sabrina Soltau, Vanessa Standaert, Michael Stanuszek, Allison Starnes-Angela, Bill Swann, Brittany Thrasher, Amanda Tonkin (Chair), Kevin Tonkin, Elizabeth Towe, Mikel Towe, Courtney Walker, Rachel Watson

Volunteers from the final round of the competition

Law Students

Clark Amundson, Adam Brock-Dagnan, Bill Cathcart, DT Christmas, Clint Coleman, Aaron Duffey, Brittany Eads, Wesley Eke, Joseph Flores, Checovoia Foster, Paul Friend, Dominic Garduno, Brooklyn Girdley, John Haupt, Emily Horton, Elton Hutton, Joseph Maus, Camille Mennen, Bridget Miracle, Blake Mullins, Gordon Pera, Jade Peters, Liz Peterson, Amanda Price, Sean Roberts, Tyler Shultz, Brad Wood

DICTA

Second Place: Jefferson County High School (Blue Team) April 2019

In This Issue

Officers of the Knoxville Bar Association

COVER STORY

April 2019

The Ins and Outs of Equity Crowdfunding: One to a Thousand Investors

CRITICAL FOCUS

5 President Wynne du Mariau Caffey-Knight

President Elect Hanson R. Tipton

Treasurer Cheryl G. Rice KBA Board of Governors

Hon. Suzanne H. Bauknight Jamie Ballinger-Holden Loretta G. Cravens Kathryn St. Clair Ellis Elizabeth B. Ford

Rachel P. Hurt Allison S. Jackson Stephen Ross Johnson Elizabeth K.B. Meadows Mary D. Miller

Preparing To Accept Joy

Getting to Know Knox County Circuit, Juvenile and Civil Sessions Court Clerk, Charlie Susano

Expungement Practice Tips

Social Media Policies: The NLRB and the Quest for Clarity

America’s Substance Use Crisis: What can I do?

Split Decision on Arbitration for U.S. Supreme Court in 2019 (So Far)

If Judges Perform Opposite-Sex Marriages,They Must Also Perform Same-Sex Marriages

Immediate 7 Past President Keith H. Burroughs

Secretary Jason H. Long

T. Mitchell Panter Robert E. Pryor Jr. Mikel Towe

The Knoxville Bar Association Staff

9 11 13 14 21

Marsha S. Watson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Jonathan Guess Database Administrator

Lacey Dillon Programs 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

Volume 47, 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 Sarah Booher Jennifer Dobbins Elizabeth B. Ford Joseph G. Jarret F. Regina Koho

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

Managing Editor Marsha Watson KBA Executive Director

President’s Message

Judicial News

Practice Tips

Management Counsel: Law Practice 101

A Community’s Response to the Opioid Crisis Legal Update

Schooled in Ethics

WISDOM

Around The Bar

Wrap Up – Barristers High School Mock Trial Competition

The Empty Office

Serendipity

Kayla Swiney

8 12 15 19

Outside My Office Window Time Out

Hello My Name Is Vite et crede

Standing Tall . . . Cold

Legal Myth Busters

Why Did The Lawyer Cross The Road?

Gadgets

Have Web Access, Will Travel On The Cheap

Well Read

Book Review – The Woman’s Hour by Elaine Weiss

Your Monthly Constitutional

National Emergency!

Grammar Grinch

Politics, Religion, & the Oxford Comma

COMMON GROUND

4 20 23 29 30 31

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

DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. April 2019

DICTA

EVENT CALENDAR & SECTION NOTICES

event calendar

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. To have your name added to the section list, please contact the KBA office at 522-6522. Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Section for the upcoming CLE program “Tricks (and Treats) of Mediation” on April 1 featuring Sarah Easter & Keith Stewart. If you have a program topic or speaker suggestions, please contact the ADR Section Chairs Betsy Meadows (540-8777) or Bob Stivers (386-1630). Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. The next Pro Bono Debt Relief Clinic will be held on May 4. Volunteer by clicking on May 4 on the event calendar at www.knoxbar.org. If you have a program topic or speaker suggestions, please contact the Bankruptcy 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. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Hedrick (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. Join the Employment Law Section for the CLE program “Workers’ Compensation in the Post-Reform Era: Navigating the System and Avoiding the Pitfalls” on July 25 featuring Judge Conner, Judge Johnson & Judge Lowe. 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 Catherine Anglin (525-0880) and 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 If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040).

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April 1 9 10 10 11 12 15 17 18 25 30

ADR Section CLE Professionalism Committee Meeting Veterans Legal Advice Clinic Barristers Monthly Meeting Law Practice Today Expo Law Practice Today Expo Diversity in the Profession Committee Board of Governors Meeting Lunch & Learn Mentoring Coffee Break for Attorneys LRIS Committee

May

1 Law Day Luncheon 6 ADR Section CLE 7 Law Office Tech Committee Meeting 8 Veterans Legal Advice Clinic 8 Barristers Meeting 9 Federal Court Bench Bar Conference 9 Judicial Committee 14 Professionalism Committee 15 Board of Governors Meeting 15 Past Presidents Dinner 16 Lunch & Learn 17 Memorial Service 20 Diversity in the Profession Committee Meeting n 21 Knoxville Bar Foundation Dinner n 21 CLE Committee Meeting n n n n n n n n n n n n n

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 The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you would like to know how you can get involved or have suggestions for CLE topics, 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 2017 will automatically be opted-in to the section. On April 25 the Section is encouraging members to attend the “Mentoring Coffee Break for Lawyers” from 3:00 – 4:00 p.m. at Pearl on Union (513 Union Ave.) KBA members will be available to answer questions about practicing in Knoxville or specific questions about different areas of law. No need to RSVP! Show up, grab some coffee, and pick the minds of some leaders in the local legal community. For information about the Section, please contact Section Chairs Erica Green (525-5134) or Jimmy Snodgrass (545-4228). 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. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963) or Patrick Slaughter (637-6258).

DICTA

Mark Your Calendar Law Day Luncheon May 1, 2019 April 2019

PRESIDENT’S MESSAGE By: Wynne Caffey-Knight Elmore, Stone & Caffey, PLLC

PREPARING TO ACCEPT JOY April showers bring May flowers; however, the torrential and seemingly-nonstop February rains left me thinking I might mildew if they did not let up. But then, remember those few days in the middle of the month with sunshine and temperatures in the seventies? And those two stunningly- beautiful days during the first week of March, even though temperatures plummeted back into the teens? They felt like a renewal. They brought me unabashed joy. The day after Ash Wednesday, Tasha Blakney’s weekly Facebook Thursday Query asked what we had given up for Lent. Mine: Alcohol through the work-week and swearing. This amidst all the kinder, generous offerings. Oh yes, I did! And worse, I admitted we would have to see how the latter “giving-up” works out. I know myself. I did not make it through the first day. My brother always said my language would embarrass a truck driver. No offense to my dear husband. I knew what she was asking because having grown up Episcopalian, my family always observed this solemn time of repentance, contemplation, and preparation for the coming joy of Easter. Like many others, we shared in the practice of “giving up” something that interferes in our lives. During our childhood, my older siblings and I always gave up sweets. In our household, this meant going without them for the entire 40 days. This also meant the Girl Scout Cookies got tucked into the freezer. Wasn’t I surprised to learn with children of my own that Sundays are Feast Days permitting treats? Clever Mama and Daddy! Mama made pots of soup for Wednesday dinners and Friday’s usually meant fish sticks – the frozen, perfectly rectangular ones that at the time tasted delicious. A dime of our $25 cent weekly allowance went into our cardboard alms boxes to be given on Easter morning, along with hand-picked flower from our yard, to people in need. These simple rituals brought peace and a pace to the season.

talking about how as husbands and wives we are happy together, and recognizing that honoring these relationships requires giving up and taking time out. Like a lot of lawyers, I am a list maker and avid reader. I read a book at least every day and a half – books of all kinds. Last night, I stumbled across a book on making one small change weekly for a year, promising to result in a “healthier and happier you.” The first chapters were devoted to drinking more water and getting more sleep. All 52 chapters were filled with checklists, charts, time-logs, measuring tools, incentives, tips-and-tricks, and the such. Once upon a time, I would have jumped at that kind of list-making challenge, but without finishing the book, the whole prospect seemed exhausting. One chapter was about keeping your house cleaner by leaving shoes at the door – an entire chapter. And no joke, as I was reading, a television ad appeared for a phone “app” to help you break bad habits and create better habits. How about putting down the phone! I turned off the TV, put the book down and played with our critters instead. True joy for the five of us. As I think on it, as attorneys, we are particularly situated to improve the lives of others and help ease their burdens so they can be open to and experience joy. Aren’t we fortunate? No matter who we are or where we come from, maybe a practice of self-contemplation and preparation is a good thing for us individuals and as attorneys. My social media post drew several private comments with smiley-faces and thumbs-ups. I was and continue to be serious about working on these things. But further reflection leads me to add these to the list, and not just for a season - give up the distractions, at times just be still, be present for one another – be prepared to accept joy and then choose joy. By giving up, often we are gaining.

Lent is a season of reflection and preparation. But what are we preparing for? A recent afternoon outing and life-events for my children resonated for me and brought this answer for myself: I am preparing to accept joy. In February, my daughter Maegan went abroad (again!) for an anticipated three-month employment contract that included lodging. The very morning that she was to begin, the would-be boss canceled the position entirely. Imagine yourself in Barcelona, having left one job for another, paying to travel, and finding yourself with no roof over your head, no source of income and your return flight home three months away. (Or having been in momma’s shoes! If only I could have sprouted wings . . ..) All’s well that ends well. She can take care of herself. She found another position before ever letting me know what happened, and initiated a complaint. Suddenly, she dropped the matter, telling me she was feeling happy and positive, wanted to move on and let go. Like mother, like daughter. She had been prompted by a breath-taking, beautiful day. She accepted joy. Meanwhile, my son Richmond has been nose-to-the-grindstone wrapping up his senior year and making his next moves through job interviews and law school application. With law schools furiously competing for students, getting accepted appears to me much more difficult these days. He did not give up on his efforts, but he chose to give up on not being able to control the results. What relief I heard in my son’s voice when he received an acceptance, and again when he called a few hours later with good news from more schools! He dropped by my office to visit today. His joy is visible. My husband Wayne and I spent a Saturday afternoon with dear friends. Watching the Volunteers trounce the Wildcats was joyful in itself. The best part though was the four of us sharing time together, April 2019

DICTA

Faces of joy from Sevilla to UT and in between.

DICTA

April 2019

JUDICIAL NEWS By: Patti Jane Lay Lay Baugh Law

GETTING TO KNOW KNOX COUNTY CIRCUIT, JUVENILE AND CIVIL SESSIONS COURT CLERK, CHARLIE SUSANO In August of last year, Knox County voters elected Charles D. (Charlie) Susano, III as Knox County Circuit, Juvenile and Civil Sessions Court Clerk. Charlie grew up in Knoxville, Tennessee as the son of Charles D. Susano, Jr., Tennessee Court of Appeals Judge, and Carolyn Susano, a retired antique dealer. After graduating from Knoxville Catholic High School, Susano attended the University of Tennessee where he majored in Anthropology. While at UT, he met his wife, Robin, and they have two teenage children, Sophie and Jacob, who attend Knoxville Catholic High School. After college, Susano was an archaeologist for the University of Tennessee, then served as Collections Coordinator and Legal Assistant in the Knox County Trustee’s Office.

deserve to discuss their cases in a dignified and private setting when at all possible. The new conference areas are in the old Juvenile Court child support courtrooms on the south end of the third floor. Additional seating has been added throughout the third floor. There is also a self-help kiosk on the third floor of the old courthouse that can assist pro se litigants with filing civil warrants. Knox County General Sessions Judge Chuck Cerny has assisted in the creation of that kiosk. As for changes in Juvenile Court, in January of this year, new financial software was installed that allows for electronic receipts for payments made in Juvenile Court. Susano starts his day every morning at Juvenile Court on Division Street for an hour or so, before heading downtown to the City-County Building. He finishes each day with a return visit to Juvenile Court. He is determined to provide friendly and efficient service to all of the courts he serves. Susano has taken the advice of his father, who taught him to “Try to leave people better off than you found them.” He approaches his job from this perspective and believes that every person matters. Susano is a stickler for keeping the paperwork up to date and not “leaving paperwork sitting any longer than it should.” He is very proud of his hard-working staff who professionally manage the case filings. Wendy Norris, who has over 21 years of experience in Juvenile Court, is the chief deputy clerk and facilitates the smooth running of the office.

Susano’s experience working for Knox County Trustee Ed Shouse has proven to be a valuable asset in running the clerk’s office. He has already implemented several changes in his office since his election six months ago that will affect the Circuit, Juvenile and Civil Sessions courts. As for the Circuit Court, all court records going back to April 2015 are available online. A subscription for online access costs $120.00 for three months and a maximum of 800 document views or $480.00 for a year subscription and a maximum of 3,200 document views. The cost of copying one page at the clerk’s office is $1.00 per page, so the subscription cost is much more cost effective. Once you view a document, it can be downloaded or copied on the online service. As for electronic filing in Circuit Court, it is still a few years down the road. Circuit Court is partnering with the other courts to create a new case management system. Charlie is working with Knox County IT, the Knox County Mayor’s office and other court clerks on a committee to interview vendors from the private sector to explore new case management systems that will improve the flow of information in and between the various courts and all Knox County offices.

In Susano’s first six months on the job, he has turned over $25,000 in excess fees to Knox County. Prior to this, the clerk’s office had not turned over any excess fees since 2011. All salaries and expenses of the circuit and civil sessions clerk’s office are paid with filing fees and court costs. Although circuit court filings have declined over the last few years resulting in a decrease in revenues, returning excess fees to the county was a

As for Civil Sessions Court, the scanning process is underway on all new filings but there is no online subscription service currently available. The goal is to make those documents available later this year. On average Civil Sessions accepts between 1,500-1,800 filings per month and took in nearly 21,000 new cases last year. One big improvement to the Civil Sessions office on the third floor of the old courthouse is the addition of private conference areas for lawyers to confer with clients. Susano believes that regardless of the reasons people are utilizing the Knox County court system, they April 2019

one of Susano’s primary goals. When Susano asked his father for advice from a lawyer’s perspective on what he needs to do to be successful, Judge Susano told him that lawyers want to be able to first, file their pleadings with the help of a friendly staff. Secondly, attorneys want to know that the staff has promptly placed all the pleadings in the file where they are supposed to be. This advice coupled with the oath of office to serve all the people of Knox County has led to a successful start to his four year term of office.

DICTA

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

THE EMPTY OFFICE

In this profession, you must spend some time alone.

When I was a boy, my father would bring me downtown with him on the weekend. Gilreath, Pryor & Rowland was empty. There was a life-sized plastic skeleton and other trial exhibits in the conference room. I was around 10 years old and even then I loved the silence of a law office on the weekend, surrounded by the rows of files and the smell of the books. The file room was vacant, but there were drawers of pens, pencils, tabs, clips and clamps. Legal pads in great abundance were free for the taking, and I would fill them up with stories and drawings while I waited for my Dad to dictate important letters and documents in the quiet solitude of his office. I loved the office supplies. Still do. However, more than anything, I loved the Coca Colas in the small glass bottles in the kitchen. They tasted different, better than they did in cans or twoliter bottles, and I could put them down. I learned to use a bottle opener and was happier than Forrest Gump drinking Dr. Peppers at the White House. I often tell this story to court reporters, lawyers and clients while on break during a deposition at my office. I tell them the little Cokes are the reason I became a lawyer. It isn’t far from the truth. I still like the empty office. I must admit, since becoming an empty nester and moving downtown, I take advantage of it more often than I used to. I like walking downtown early in the morning, late at night, or on the weekend, gathering my thoughts for some time alone with my work. I see where the homeless sleep, which employees at the various businesses on my route show up early or stay late, and I see our city workers doing their thing. I’ve been rather impressed by all that our city workers do to make our town clean and special. One Saturday morning I met a parking enforcement officer. He was much older than the young baby-faced enforcement officers that populate the force and drive us insane when the meter clicks to red. He said he was a retired police officer from Canada and moved here for good. “Best city I’ve ever been to. Knew I wanted to retire here the first time I came down.” I’d just secretly watched as he approached a schizophrenic homeless man who was wearing a t-shirt in 20-degree weather. He told him how to get to KARM for a coat.

best of these who tell the stories, and I have been blessed to receive them. When I’m downtown and the city is quiet, I feel like the only one - the only lawyer, the only person - and as the history and stories emerge from the alleys on my way to my destination, I know that those men walked down Gay Street thinking and worrying about clients and cases just like me. When I reach the corner of Church and Gay, I pay homage to the Man in the Row Boat, a man who is perpetually sinking into an imaginary pond. I hold up my fob to enter the building where I’ve come to work since I was in college. I walk through the lobby of Two Centre Square beyond the closed bank reception area, and stop in front of the elevators. As they open, the mirrors on the back wall of the elevators mock me. They continue to register my progression and remind me that time does not stand still. The young man who once entered for the ride to the sixth floor looks more like my father with each passing day. Upon exiting, I can hear the silence of our sizable offices. The phones don’t ring. There are no voices, no interruptions. There are only the sound of my files calling from their drawers and the closing arguments I’ve made since I met the clients for the first time. It is simply necessary for those of us who earn a living representing folks in a courtroom to be alone with the sounds of an empty office, to be amongst our supplies and tools. It truly is an essential part of doing what we do. I know the good ones do it. Their time stamps on emails or voicemails give them away. It is a solitary profession that requires us to think and be comfortable alone with our thoughts so that we can sleep at night. A good space and time alone amongst our files is essential, as is a refrigerator full of little Coke bottles.

Early mornings cutting through Market Square are fabulous. I take in and consider the history like the great fire that took down the Market House in 1960. I envision the Spanish-American and Civil War veterans that have paraded down Gay Street, the photos of which can be found in the many Jack Neely books I own. Those black and white photos pass through my head as I walk by the old buildings as do the stories my father has told me through the years about the past characters in our profession. I carry a hefty bank of stories about Ray Lee Jenkins, Judge Robert Taylor and many other old lions of the Bar. I’m struck by the legacy of Knoxville lawyers and firms and wonder if the ghosts of J.W. Baker, Sr., Arthur Seymour, Sr., Foster Arnett, and Zane Daniel walk these streets when the offices were empty and the city sleeps. I think about them walking past the Tennessee Theatre, the Hamilton Bank building, or the old courthouse heading to an empty office to prepare for a hearing before Judge Cole or Judge Haynes. Old lawyers are good at telling you how it use to be, about the lawyers that would roam these streets, and I always listen when the stories are flowing. My father is the

DICTA

April 2019

PRACTICE TIPS By: Mitch Eisenberg The Bosch Law Firm, P.C.

EXPUNGEMENT PRACTICE TIPS The term “expungement,” in the legal sense, is seldom uttered by non-lawyers. Rather, most often we hear complaints along the lines of “I can’t live with a criminal conviction on my record. Make it go away!” What follows are some practice tips on current expungement law. With almost yearly changes to the statutory scheme and with significant recent changes, it can be difficult to keep pace.

What is Expungable?

Tennessee expungement law is codified at section 40-32-101 of the Tennessee Code Annotated. Three types of cases/situations are expungable: (1) dismissals and acquittals; (2) diversions; and (3) eligible convictions.

Dismissal and Acquittal

Dismissals include dismissed cases, whether with or without terms. “Terms” can include conditions such as costs taxed to the defendant or community service, just as long as a “dismissal” is entered. Dismissals also include cases concluded by Nolle Prosequi, i.e., the prosecution’s declaration “we shall no longer prosecute.” If a grand jury fails to return an indictment, known as a No True Bill, the matter is considered dismissed. Acquittals, of course, operate as dismissals. Further, any arrest that does not result in a charge may be expunged. There is no filing fee for a dismissal expungement.

Diversions

Convictions

Certain prior convictions can be expunged, including specific E felony convictions with an imposed sentence of less than three years and misdemeanor convictions that are not specifically excluded. These expungements require payment of fees that can and do change. As part of his criminal justice reform package, Governor Bill Lee has proposed the elimination of a $180 expungement fee that will allow eligible lower-level offenders to clear their criminal records for free. For offenses committed on or after November 1, 1989, Tennessee Code section 40-32-101(g)(1)(A)(i) through (xxxvii) lists the specific E felonies subject to expungement. Tennessee Code section 40-32-101(g) (1)(B)(i) through (xlv) lists the misdemeanors that may not be expunged. For older offenses, Tennessee Code section 40-32-101(g)(1) (C) should be consulted. One limitation for older offenses, pursuant to subsection (g)(1)(C)(iii), is that an individual is not eligible if a previous conviction was expunged after completion of a diversion program. For eligible convictions, subsection (g)(2)(B) and (C) specifies all requirements of the case must have been completed (including payment of all fines, court costs, and restitution) and at least five years must have elapsed since the completion of the sentence. The individual cannot have additional federal or out of state convictions, although pursuant to subsection (g)(2)(E), an unlimited number of convictions arising from the same incident are eligible as long as each conviction qualifies.

April 2019

Under a 2017 change to the expungement law, now found in subsection (k)(1)(A) and (B), two convictions from unrelated incidents may be expunged as long as: (1) each offense is independently eligible; (2) both convictions are not felonies; and (3) you have no other convictions. Conviction eligibility remains the same, so the conviction must be either an included felony conviction or a non-excluded misdemeanor. Importantly, the individual must have a fully eligible conviction record, not only including all eligible types of convictions, but the required limited numbers and levels (only one felony) of the convictions, or they are barred from conviction expungement. An individual may not expunge only qualifying convictions and leave nonqualifying convictions – it is either all or nothing.1 Interestingly, the statute and current local clerks and court practice, contemplate only “one bite” at the expungement apple.2 If you have a client with one expungable conviction, that person cannot expunge that conviction and then at some later date, should they received an additional conviction, seek to expunge a second new conviction. This risk should be discussed, and if the current conviction is not too limiting, there could be an argument for saving the expungement application for a possible, more serious charge in the future.

Diversions, with the exception of sexual offenses or violent sexual offenses listed in Tennessee Code Annotated section 40-39-202, may be expunged after completion of all requirements. Diversions may be pretrial or judicial diversions. There is a fee charged for expungement of diversions, which can vary slightly by county and is frequently changed by statute.

Multiple Convictions From Separate Incidents Can Now Be Expunged? Who knew?

What Does it Practically Mean That Something is Expunged?

An expungement restores an individual to his or her status before any arrest, indictment, information, trial, and conviction and the statute specifically protects the individual from perjury or otherwise giving a false statement for failing to “recite or acknowledge” these events.3 In effect, an expungement acts as if the legal response to the event or conduct never occurred and directs the destruction of all public records of the expunged conviction. If, however, private third party records exist, they are not affected by the expungement order. Therefore, it is possible that a commercial criminal background check will show expunged events. Moreover, no current Tennessee law prohibits asking about a record, to include an expunged record, and once divulged, there are no prohibitions regarding the disclosed information, or a subsequent investigation into the conduct or events, from being considered. Numerous job applications, licensing applications, and even credit checks may ask for information on all cases, even if expunged. Therefore, a good tip is to tell your clients to call should they be questioned like this and that you can provide them guidance on the risks of courses of action.4 Clients deserve as clean a record as possible. An attorney should diligently check criminal histories, offer guidance and support for those matters that are eligible for expungement, and keep track of those convictions that may become eligible for expungement in the future. When in doubt – go back to the statutes. Trust but verify! 1 Compare this to a multi-count indictment, where even if convicted on some counts, petitioners are entitled to expungement in connection with dismissed or acquitted counts. State v. Liddle, 929 S.W.2d 415, 1996 Tenn. Crim. App. LEXIS 316 (Tenn. Crim. App. 1996). 2 T.C.A. 40-32-101(k)(2). 3 T.C.A. 40-32-101(g)(12)(B) and (C). 4 One tip for anyone seeking a security clearance, some high level clearances require polygraph examinations. In these situations, disclosure of expunged matters may be required to avoid inconsistencies when submitting to a polygraph examination.

DICTA

April 2019

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Janet Strevel Hayes Shareholder, Lewis, Thomason, King, Krieg & Waldrop, P.C

SOCIAL MEDIA POLICIES: THE NLRB AND THE QUEST FOR CLARITY If you make it through your workday today without checking any social media platforms, pat yourself on the back. You are in the distinct minority. Recent surveys show that 77% of employees access social media during normal work hours. Compare that to the fact that only 67% of employees drink coffee during work hours, and you quickly realize that “social media breaks” may have replaced “coffee breaks” in the “workplace distractions” category. Unlike the quick coffee break, however, social media breaks can be significant time wasters. Nineteen percent of employees admitted to spending up to one hour on social media during the workday and 9% spend up to two hours.

•

company without prior written approval; Prohibitions on employees making negative or disparaging remarks about other employees or posting photographs, video or audio that reasonably could be viewed as disparaging to other employees; Prohibitions on disclosure of the company’s confidential, proprietary, or trade secret information (note that the Board requires the employer to specifically and narrowly define terms like “confidential information”); and Prohibitions on employee misrepresentation of the company’s products, services or employees.

But social media is more than a workplace distraction, it can also be the source of workplace strife. Pew research suggests that 16% of workers have found information on social media that impacted their professional relationship with a colleague and 24% have written a negative post about their employer. An additional 5% have made a negative comment about a client. Truth is, almost all of us have seen social media posts that have, to some extent, impacted our rom work relationships or performance.

The NLRB also found that employers could permissibly extend certain policies banning inappropriate workplace behaviors by prohibiting those same behaviors in social media. For example, workplace rules banning harassment, bullying, and threats of violence can be incorporated into a social media policy, provided that the policy provides sufficient context and definitions so that an employee would not reasonably interpret the policy to overreach into protected concerted highest activity.

Law offices are no different than other businesses. From the highest ranking attorney to the part-time runner, our people are consumed with social media. And even though our ranks include excellent employment lawyers, we are struggling to navigate those legal issues born from the union between employment law and a social media culture.

The Board’s guidance also identifies a second category of rules, which would warrant individualized scrutiny, and a third category, which are presumptively unlawful. Employers are wise to stay away from these policy provisions. Examples include:

the ranking attorney to the part-time runner, our people are consumed with social media.”

The Society for Human Resources Management (SHRM) recently reported that only 40% of organizations have a formal social media policy. I suspect that percentage is even lower in law offices. On the whole, lawyers are not always good at practicing what we preach and, quite frankly, most lawyers are perplexed by the NLRB’s tendency to ding policies that do not meet the Board’s vague and unpredictable standards.

• • • •

Blanket rules prohibiting employees from making disparaging remarks about the company; Blanket rules prohibiting employees from criticizing the employer; Blanket rules requiring employees to keep wages, benefits or working conditions confidential; and Blanket rules prohibiting employees from making false or inaccurate statements (although the guidance suggests employers may be able to ban “defamatory statements.”)

Last year, the NLRB attempted to clarify some of the ambiguities created by prior rulings and issued new guidance regarding employee handbook rules. While the rules are applicable to all handbook provisions, they are particularly useful for employers attempting to craft social media policies that will survive Board scrutiny.

The NLRB also presumptively condemns policies that they deem too vague or ambiguous. Finally, the Board has warned that employers cannot escape scrutiny by simply adding a “savings clause” stating that social media policies must be interpreted in harmony with the NLRA.

The Board’s guidance denotes three categories of rules. The first category includes handbook provisions the Board has deemed presumptively lawful. Examples of permissible provisions (which would be appropriately included in a social media policy) include:

While the new “guidance” does finally provide some actual guidance, it is also a source of frustration. At the core of it all, most employers are really looking for a way to take action against the employee who posts a Facebook rant disparaging the very company writing his paycheck. That remains hard to do with current NLRB restraints.

• •

Prohibitions on the use the Company’s logo, graphics, or trademark without prior written approval; Prohibitions on employees making comments on behalf of the

So we draft our policies as best we can and reminisce about “the good ole days” when rants took place at the water cooler or during the coffee break.

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 2019

DICTA

TIME OUT By: Ann C. Short The Bosch Law Firm

SERENDIPITY Marsha somehow seems always to know when I am experiencing writer’s block. She will send me suggested topics or recommend someone I might want to interview. The last person she suggested for an interview seemed like an interesting gentleman, and Marsha sent his bio to me. I began reading that he had “served for 35+ years as a trial lawyer, judge, senior state government official, health care executive, consultant and coach.” I continued reading for 15 minutes and learned that he had served as “project consultant for a number of human service organizations and government entities,” including the “Tennessee Department of Mental Health and Substance Abuse Services, and the MacArthur Foundation ‘Models for Change’ initiative to promote the use of mental health assessments in juvenile courts.” Reading on for another 10 minutes, I discovered that he learned meditation and creative visualization when he was 16-years old, and as an adult he was completing “International Coaching Federation training for Professional Coach certification.” After a few more minutes, I also discovered that he believes in lifelong learning and that one of his favorite books is the 1936 classic, Joy of Cooking. For the third time in my life, I felt utterly worthless reading about someone else’s accomplishments. I guess I just don’t know how to budget my time or effectively multi-task. Maybe I’m lazy. It could be that I’m not a lifelong learner. Perhaps on one of my past beach vacations, I should have read War and Peace or Cyrus the Great by Georges de Scudéry/ Madeleine de Scudéry (reputed to be the longest novel ever written). Feeling defeated, I sent Marsha an email explaining that I was exhausted just reading the gentleman’s bio and perhaps I would pursue a different recommendation she had made.1 Moving on, I explored emotional resilience as a survival skill for attorneys. Emotional resilience is the ability to bounce back in the face of setbacks or challenges, emerging stronger, wiser and more powerful from the experience. Sounds logical. Evidently, the Army has done pioneering work in emotional resilience. The Army provides resiliency training to give soldiers the best possible chance at survival and success before, after, and during service. Studies, I am told, have shown a direct relationship between the resilience learned in training and a soldier’s long-term success in the Army.

After a time, a gentleman came into the restaurant alone and sat near us at the bar. Something we said prompted him to volunteer that he was a grandfather. He mentioned reading a recent New York Times article, “Let Children Get Bored Again.”2 He said that his grandchildren always expected to be “entertained,” and they complained about being bored at his house. His suggestion that they go outside and play was not well received. Whereupon the three of us took turns recalling what we did as children when we were bored: riding bicycles; building forts and tree houses; pretending to be pirates and running around with sticks and home-made eye patches; playing capture the flag and croquet; tickle contests. Of course, anything involving a garden hose and water was bound to generate hours of unstructured fun. As for vacations and the dreaded hours-long car rides, comic books, Nancy Drew mysteries, crayons, and coloring books seemed to suffice – along with shoving, hitting, and arguing with our siblings. I was reminded of the great philosopher, Winnie the Pooh: “We didn’t realize we were making memories, we just knew we were having fun.” There we were, three strangers laughing and recalling fond memories. The banter continued for about 45 minutes. We parted ways, exchanging only first names and only after I was certain the woman’s debit card would cover her meal. Driving home, I realized what a fun, relaxing evening I had just experienced. I was in a proverbial “good mood.” In the future, I may return to the topic of emotional resilience as a survival skill for attorneys. For now, an enjoyable, serendipitous evening with nice people will suffice.

The gentleman is the Honorable Steve Hornsby who began practicing law in 1982 in his hometown of Bolivar, Tennessee. Marsha and her staff have been trying to get him to come to Knoxville to speak. I’ll eagerly sign up to hear what the distinguished gentleman has to say. As for interviewing him, I was too intimidated after reading his bio. See https://www.nytimes.com/2019/02/02/opinion/sunday/children-bored.html. The article quotes Lin-Manuel Miranda, “[T]here is nothing better to spur creativity than a blank page or an empty bedroom.”

I downloaded and printed out several articles on emotional resilience to take home with me. On the way, I stopped for dinner at Sullivan’s and ended up just ordering dessert and trying to read through one of the articles. A nice woman came in and sat next to me at the bar. The waiter asked what she wanted to order. She pulled out her cell phone and said first she needed to text her daughter, who had neglected to return her debit card, and ask the daughter to send a screen shot of the debit card and ask the daughter if any money was left in the account. The waiter and I both burst out laughing, and I told the waiter to put her meal on my ticket if the debit card was declined. A pleasant conversation ensued. We spoke of the challenges of parenting and being “single” at that certain age. I offered her a bite of my dessert, and she proclaimed it to be from a mix and not up to her standards. She explained about being in the catering business and showed me cell phone pictures of some of the desserts she made “from scratch.” I could practically smell the apple stack cake in one of the photos. She never asked me what I did, for which I was grateful.

DICTA

April 2019

A COMMUNITY’S RESPONSE TO THE OPIOID CRISIS By: Hilde Phipps Senior Director of Addiction Services, Helen Ross McNabb Center

AMERICA’S SUBSTANCE USE CRISIS: WHAT CAN I DO? Our country is in the midst of a substance use crisis. While the treatment they needed. Though access to treatment has modestly improved in the past few years, evidence suggests that 90 percent of individuals who United States accounts for a mere 5 percent of the world’s population, it treatment today still do not receive it. consumes 75 percent of the world’s prescription n 2014, only 4 percent need Treatment works. A recent pilot project opioid drugs.1 According to the Tennessee of Tennessee adults “Shot at Life” funded through the Trinity Foundation Department of Health, nearly 400,000 Tennesseans with partnerships between the Knox County District abuse or are dependent on alcohol and other drugs.2 in need of addiction Office, the Knox County Sheriff ’s Office, The Centers for Disease Control and Prevention treatment (including addiction Attorney’s and Helen Ross McNabb Center demonstrated the revealed that, in 2016, drug abuse accounted to alcohol and/or illicit drugs) incredible impact that treatment of a sufficient length for more deaths than firearms or homicide in can produce. Thirty patients treated between 12 and Tennessee. actually received services.” 18 months achieved the following outcomes: If these staggering statistics leave you • 73 percent gained employment, which bodes well for emotional wondering how you can impact this monumental problem, the truth is, well-being, as well as, their ability to support themselves and their professionals or individuals with a platform or in positions of power can dependents indeed impact the crisis by helping reduce stigma; advocating for increased • Recidivism dropped sharply in the treatment and post-treatment treatment capacity; and remaining hopeful and supporting people in time frame compared with the year prior. Twenty charges were recovery. accrued during and post-treatment, compared with 72 charges in Addiction is a primary, chronic brain disorder the leads to the year prior to client receiving services.5 compulsive behavior in spite of negative consequences. Individuals experiencing addiction have diminished recognition of significant problems • 67 percent of clients achieved sobriety and maintained recovery with interpersonal relationships and dysfunctional emotional response. Remain Hopeful Like other chronic diseases, addiction often involves cycles of relapse One program participant summed up the need for long-term and remission. Without treatment or engagement in recovery activities, treatment with accountability measures and sends a message of hope: addiction is progressive and can result in premature death. “When I first started this program, I was skeptical and still really In the simplest terms, addiction eventually convinces its victim that eager to do the old things I used to do. I still wanted to party and have fun there is not a problem, that his circumstance is unique and that he must and waste my life away. I knew I had a problem, but felt like I was here continue to use in order to survive. Almost everyone around him can see the because I got caught. I didn’t want to go back to jail. My turning point in problem and this disparity of viewpoints leads family members and others my feelings about the program and my recovery was about 3 months in. I to believe he is lying or “in denial.” In fact he is in denial by virtue of the was employed, buying things for myself, and finally started feeling success. I messages he is receiving from his own brain. The frustration that loved ones was using coping methods I learned in class and was staying true to myself and significant others feel regarding this incongruence results in stigma. and peers. My final thought is this program works 100% if you’re honest and you want to better yourself. Everything has worked out for me because Reduce Stigma I wanted to be better. The more I want it, the better it becomes. The key Stigma is a mark of shame or discredit, a specific diagnostic sign of is changing all old habits, places, and behaviors and always staying true to a disease.3 Unfortunately, in addictive disease, shame and guilt produce a yourself.” constant cycle of using drugs, feeling guilt and shame, and using more drugs Making changes is not easy. Think of any habit you tried to in order to try to not to feel the guilt and shame. In 25 years of working implement or a bad habit you tried to break. It takes time, effort, and with tens of thousands of individuals with substance use disorder, I have typically multiple attempts to be successful. Once a new, healthy habit never met anyone who set out to become addicted. But, 99.9 percent of is established, or a bad habit broken, the feelings everyone I have worked with experienced this cycle of s professionals of accomplishment give hope and hope fosters shame. sustainability. Most of us first encounter substance use we can learn As professionals we can learn about the disorder when we see someone in the later stages of about the disease, help reduce stigma, and advocate for increased the illness. In some cases, this means the individual disease, help reduce stigma, treatment capacity. We can treat substance use disorder has resorted to anti-social, sometimes illegal, often other chronic illnesses (diabetes, hypertension). immoral behavior in order to sustain their drug use. and advocate for increased like Can you imagine denying someone treatment for The behaviors further contribute to stigma but most treatment capacity.” another chronic illness, or furthermore, blaming them often individuals get into this position due to the lack for getting sick in the first place? of available, affordable treatment services.

Advocate for Increased Treatment Capacity

April 2019

Gusovsky, Dina. “Americans still lead the world in something: Use of highly addictive opioids.” CNBC, April 27, 2016. Tennessee Department of Mental Health and Substance Abuse Services. Fast Facts. (2017, April 7). Retrieved March 7, 2019, from https://www.tn.gov/health/health- program-areas/statistics/quick-facts.html 3 Stigma [Def 1a]. (n.d.). Merriam Webster Online. Retrieved March 7, 2019, from https://www.merriam-webster.com/dictionary/stigma. 4 Brantley, A. (2018, March 23). Health Brief: Addiction in Tennessee. Retrieved March 7, 2019, from https://bettertennessee.com/health-brief-addiction/ 5 Knox County, TN. Justice Information Management System Data. 1

A 2015 report by the federal Substance Abuse and Mental Health Services Administration estimated only 10.8 percent of the people who needed substance abuse treatment got any – inpatient, outpatient, or even detox. Tennesseans with substance use disorder overwhelmingly do not get the treatment they need. In 2014, only 4 percent of Tennessee adults in need of addiction treatment (including addiction to alcohol and/or illicit drugs) actually received services.4 That means 96 percent did NOT get the

DICTA

L E G A L U P DAT E By: Matthew R. Lyon LMU Duncan School of Law

SPLIT DECISION ON ARBITRATION FOR U.S. SUPREME COURT IN 2019 (SO FAR) With two associate justices having been appointed by President Trump within an eighteen-month period, the U.S. Supreme Court has entered a new, likely more conservative era. We have yet to see whether the Court will revisit canonical decisions in areas such as administrative agency deference and substantive due process. But one area in which the Court’s path doubtless will remain steady is its enforcement of mandatory arbitration provisions in contracts. For many years now, but increasingly in the last several years, the Court has relied on a nearly 100-year-old law, the Federal Arbitration Act (“FAA”), to uphold arbitration agreements in contracts. It has done so regardless of whether those provisions truly have been bargained-for and even when the public policy of the state in which the contract was formed – or another federal law – is apparently to the contrary. Moreover, the Court has sought out opportunities to reinforce its arbitration jurisprudence and reign in recalcitrant state courts that remain hostile to arbitration. Buoyed by these decisions, arbitration has become a common feature in all sorts of contracts. With all due respect to Janet Jackson, we truly have become an “arbitration nation.”1 For its current term, the Court has granted certiorari in no less than three arbitration cases. The first two opinions, both released in January, were authored by the Court’s two “new guys,” Justice Neil Gorsuch and Justice Brett Kavanaugh. Unlike the more controversial, landmark arbitration opinions in the Court’s recent history, however, which were 5-4 decisions split on ideological grounds,2 both of the recent decisions were unanimous. The common element between the two recent cases is that both involved “delegation clauses,” where the parties agree not only to arbitrate any disputes that might arise under the contract, but also to have any questions about the scope or enforceability of the arbitration provision decided by the arbitrator, rather than a court.3

counsel for the employer appeared to concede that point during oral argument, stating that “we trust courts” to decide the issue.13 Oliveira is a rare victory in the Court for a plaintiff seeking to avoid an arbitration clause in an employment agreement and litigate his claims. That it was written by Justice Gorsuch, who in broad terms generally upheld arbitration provisions in employment agreements several months earlier,14 would seem even more notable. But a closer look at the facts of Oliveira and their interplay with the FAA reveals that the opinion is of limited precedential value. Dominic Oliveira was a driver for New Prime, an interstate trucking company, and was classified as an independent contractor, rather than an employee.15 This was important because § 1 of the FAA explicitly carves out from the Act’s coverage “contracts of employment of . . . workers engaged in foreign or interstate commerce.” Based on the FAA’s terms and sequencing -- § 1 of the law appears before §§ 3 and 4, which require courts to stay litigation and order arbitration if the contract provides for it – the trial court was right to ignore the delegation clause in Oliveira’s contract and decide the threshold issue of arbitrability.16 Moreover, the lower federal courts resolved correctly the merits of the claim because, based on how it was commonly defined at the time, the term “contracts of employment” in the FAA includes not only employees, but also independent contractors.17 While Oliveira marks an interruption in a long series of victories in the Supreme Court for business, employers, and other entities seeking to enforce mandatory arbitration clauses, the opinion is based entirely on the application of § 1 of the FAA. Thus, unless they are representing “workers engaged in foreign or interstate commerce,” plaintiff ’s lawyers seeking to avoid arbitration provisions in their clients’ contracts should not get too excited by the decision.

Justice Kavanaugh’s First Supreme Court Opinion

The Court heard oral argument on October 29 in the third arbitration case of the term, Lamps Plus, Inc. v. Verela. The issue in Lamps Plus is how clear the parties’ arbitration agreement must be on the question of whether the parties authorized class arbitration, and whether the FAA forecloses state-law interpretation rules that might answer the question.”18 Based upon questioning during oral argument, it appears that the Lamps Plus decision might not be unanimous and instead will split along the familiar 5-4 ideological divide.19 Because Lamps Plus involves the intersection of two issues in which the Roberts Court has displayed keen interest over the past ten years – arbitration provisions and the ability of litigants to pursue claims collectively – observers predict a “return to form” when the Lamps Plus decision is released later this spring.20

On January 9, the Court released Henry Schein, Inc. v. Archer & White Sales, Inc.4 The case involved an arbitration clause in a contract between a manufacturer and distributor of dental equipment.5 That clause included a provision incorporating the rules of the American Arbitration Clause, which provide for delegation of the decision on whether to arbitrate to the arbitrator, rather than the court.6 Nevertheless, the district court declined to send the case to arbitration, invoking the “wholly groundless” exception that had been adopted and applied in several federal circuits when attempts to transfer disputes from courts to arbitration were deemed frivolous.7 The Fifth Circuit affirmed the district court.8 Justice Kavanaugh’s opinion rejected completely the “wholly groundless exception” as inconsistent with the FAA and the Supreme Court’s precedent.9 Citing a thirty-year-old case in which the Court had required arbitration on the potential merits of a contract dispute even when one party’s arguments appeared frivolous, the Court held that the same principles apply to the threshold issue of arbitrability.10 In sum, “[w]hen the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in the contract.”11

Justice Gorsuch’s Opinion in Oliveira

Ten days after deciding Henry Schein, the Court released its opinion in New Prime, Inc. v. Oliveira.12 The oral arguments in Oliveira actually had taken place earlier than those in Henry Schein, during Justice Kavanaugh’s confirmation hearings, so he did not participate in the Oliveira decision. Prior to oral arguments, the primary issue in Oliveira was thought to be the contract’s delegation clause. However,

One More Arbitration Case in the 2018-2019 Term

Actually, while Janet Jackson’s Rhythm Nation 1814 remains a modern classic, credit for this particular phrase is due to Liz Kramer, a partner at a Minneapolis law firm who recently was appointed as the Solicitor General of Minnesota. Ms. Kramer’s blog, Arbitration Nation (https://www.arbitrationnation.com/) has become one of the most widely read resources on the topic. 2 See, e.g., AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011); Am. Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013); Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018). 3 See Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68-69 (2010) (“The delegation provision is an agreement to arbitrate threshold issues concerning the arbitration agreement. We have recognized that parties can agree to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy.”). 4 139 S. Ct. 524 (2019). 5 Id.at 528. 6 Id. 7 Id. at 529. 1

DICTA

(Continued on page 15)

April 2019

HELLO MY NAME IS... By: Jennifer A. Dobbins Associate Attorney Lipsey, Morrison, Waller & Lipsey, P.C.

KAYLA SWINEY Kayla Swiney, an associate attorney at the Nelson Law Group, describes herself as someone who “enjoys extremes” – and lives an extremely active life. An average day for Kayla includes a full day in the office and the courtroom, a Crossfit class, then several volleyball games. She infuses passion and intensity into everything she does.

the summer before her 3L year, she joined a partnership program with the Duncan School of Law and a Chinese university in Beijing, which allowed her and a small group of Duncan students to conduct a mock trial for Chinese students, meet a judge in the Chinese legal system, as well as visit the Great Wall of China and the Terracotta Army.

Kayla was born and raised in Coeburn, a small town in southwest Virginia. After high school, she wanted a change of scenery. Her high school guidance counselor had recently finished a Master’s Degree at Lincoln Memorial University and recommended LMU to Kayla. After touring the campus, she was pleasantly surprised by the small but warm and close-knit campus, so she readily accepted an offer to enroll.

While attending law school, Kayla was able to reignite one of her former passions: volleyball. “I hadn’t played volleyball since high school, but I had a friend who reached out and needed someone to fill in on her rec league team. I thought I wouldn’t remember anything, but it all came back to me so quickly. Now I’m on multiple teams, in multiple leagues, indoor volleyball in the winter, sand volleyball in the summer, and I just love it.”

During undergrad at LMU, Kayla flourished at the liberal arts school. She says LMU’s small atmosphere allowed her to make friends and build life-long relationships. “Everyone was very friendly and close, and I never felt like just a number or lost in a crowd,” she explains.

Kayla took a less traditional path to her current career as an attorney. At LMU, Kayla completed her undergraduate degree in Art and attained an education license. “I really wanted to be a blacksmith,” she reflects, “but going into education was more practical to find a job.” After one year of working as a high school art instructor, she realized her future was in law instead of education. “I had already taken the LSAT in my final semester at LMU, so I knew that this was something I could do. The Duncan School of Law in Knoxville seemed natural,” she says. In addition to honing her advocacy skills, law school provided Kayla with the unique opportunity of studying abroad in Asia. During

As an associate attorney at Nelson Law Group, Kayla stays busy with her practice, consisting mostly of employment litigation, domestic law, and criminal law. As a self-described “nerd,” her favorite days at work are those that she can spend mastering a new legal topic. She loves the intellectual challenge of research and analysis. Kayla describes writing briefs like working a puzzle, and she appreciates the challenge of fitting all of the pieces perfectly together. When she has time away from work and her busy schedule of volleyball, Crossfit, and yoga, Kayla explores new restaurants and breweries in Knoxville. Her favorite spots in Knoxville include the recent development and new businesses at the South Knoxville waterfront. Kayla also enjoys travel and, in addition to China, has visited England, Italy, Mexico, and the Bahamas. She plans to travel to New Zealand next. Although it seems against her relentlessly energetic nature, she unwinds by binge-watching Netflix TV series. Kayla says that her friends describe her as “creative,” “unique,” “vibrant,” “intelligent,” “sharp,” “pugnacious,” and “multi-faceted.” After meeting her, I would add “energetic” and “passionate” to the list. I hope you also meet Kayla, an attorney early in her career and a welcome addition to the Knoxville Bar Association.

SPLIT DECISION ON ARBITRATION FOR U.S. SUPREME COURT IN 2019 (SO FAR) (Continued from page 14)

878 F.3d 488 (5th Cir. 2017). Henry Schein, 139 S. Ct. at 529. 10 Id. at 529-30 (citing AT&T Techs., Inc. v. Commc’ns Workers, 475 U.S. 643 (1986)). 11 Id. at 531. 12 139 S. Ct. 532. 13 Perry Cooper, Employer’s Attorney Concedes Arbitration Issue at SCOTUS, Bloomberg Law (Oct. 3, 2018), available at https://www.bloomberglaw.com/ document/XAO7G9JG000000?bna_news_filter=class-action&jcsearch=BNA%2520 000001663b04dc10aff7ffceac0b0000#jcite. 14 See Epic Systems, 138 S. Ct. at 1622-30; see also Matthew R. Lyon, Implications of Epic Systems v. Lewis, DICTA (Nov. 2018), at 10.

Oliveira, 139 S. Ct. at 536. Id. at 537-38. 17 Id. at 539-40. 18 See Amy Howe, Justices Add Three New Cases to Next Term’s Docket, ScotusBlog (Apr. 30, 2018), available at http://www.scotusblog.com/2018/04/justices-add-three- new-cases-to-next-terms-docket/. 19 Charlotte Garden, Argument Analysis: The Familiar Divide in Arbitration Cases Re-emerges, ScotusBlog (Oct. 30, 2018), available at https://www.scotusblog.com/ 2018/10/argument-analysis-the-familiar-divide-in-arbitration-cases-re-emerges/. 20 Id.

April 2019

DICTA

The Ins and Outs of Equity Crowdfunding: One to a Thousand Investors Most folks know that it takes capital to start and grow any new venture. Capital is even more critical to the class of businesses labeled “startups” – businesses stemming from innovative products or services and capable of fast growth and wide market reach.1 With the popularization of startups and entrepreneurship culture in the United States, and even globally, startup founders and entrepreneurs are considering atypical sources of capital to fund their next ventures.

Where rewards-based crowdfunding allows individuals and companies to raise money by providing various incentives, equity crowdfunding takes us to the deep end of the pool. Individuals can invest into the company with as little as a few hundred dollars, or as much as several thousands of dollars.8 There are no incentives or rewards but only a public offering in which an individual is purchasing a security by the issuer.9

Crowdfunding

Regulation CF

Enter the world of crowdfunding. Just as the name implies, “crowdfunding” allows a venture to raise funds through a “crowd” of investors. On a high level, there are two primary kinds of crowdfunding: reward-based on one hand, and equity on the other; the culture of crowdfunding binds the two and informs the latter.2 Reward-based crowdfunding (or “traditional crowdfunding”, as ironic as that may sound) involves individuals providing financial support to projects in exchange for prizes, rewards, and even preorders on products.3 Importantly individuals and companies make no promise of any financial return for individuals “backing” their project.4 These campaigns are timelimited and started with Kickstarter’s “all or nothing” principle; either all or none of the project will be funded by the campaign’s scheduled ending.5 This created demand for Indiegogo and GoFundMe, other reward-based crowdfunding platforms kicking the “all or nothing” principle and allowing projects to continue with any amount of funds they raised.6 After years of rewards-based crowdfunding, the general public is accustomed to thinking of paying into a crowdfunding campaign as having “backed” that “project.” Backers have a sense of pride and reputation from being associated with the project and the mere “backing” of any venture leads to a societal reward. Instead of maximizing “returns” or “benefits” from backing projects, rewardsbased crowdfunding has created and embraces a culture of maximizing perceived impact and symbolic support. Crowdfunding also provides another pivotal benefit— a marketing and PR engine that can help propel preorders and sales. One widely used strategy to ensure a successful rewards-based crowdfunding campaign is for founders to obtain capital commitments beforehand, funneling into their campaigns, so the same capital could be utilized but with an additional benefit of viral marketing—and more capital. Startups have taken note. Since crowdfunding any capital involves smaller transaction sizes, its viability as a capital sourcing strategy heavily hinges on the idea’s virality. Just to meet the required capital estimates, hundreds or thousands of transactions would be needed to fuel any successful crowdfunding campaign.7 What are startups particularly good at? Crafting and launching visionary products or services that by nature are intrinsically viral.

To understand equity crowdfunding, we need to understand Title III of the “Jumpstart our Business Startups” or “JOBS” Act of 2012.10 Title III mandates the creation of a crowdfunding vehicle that allows companies to issue securities to unaccredited investors.11 Prior to the JOBS Act, regulation of non-public offerings was primarily concerned with limiting offers and sales of securities to “persons not needing the protection of the Securities Act,” who of their money choose to take either a investment, financial loss, or to engage a professional advisor to evaluate the magnitude of the investment risk.12 Title III essentially stands this idea on its head: it makes startup investing available to relatively unsophisticated investors, addressing the investment risk by limiting the funds a company can receive and the size of any individual investor’s total investment.13 Regulation CF (commonly known as “Reg CF”) was later implemented in 2015 by the SEC to incorporate the crowdfunding provisions of Title III, on top of the then recent Securities Act Section 4(a)(6) exemption from registration for certain crowdfunded transactions additionally added by Title III.14 Together, Section 4(a)(6) and Reg CF manage the financial risks taken by investors with low net worth by limiting their total amount invested to no more than $107,000 over a 12-month period. Reg CF further requires investments to be within a certain bracketed percentage of each investor’s annual income and net worth: investors whose net worth or annual income are less than $107,000 may invest up to 5% of their annual income; and investors whose net worth and annual income exceed $107,000 may invest up to 10% of their annual income.15 Reg CF limits the total amount of crowdfunding offerings raised by an issuer over a rolling 12-month period to be no more than $1,070,000.16 While this capital limit may prevent corporations from raising sufficient capital, Reg CF enables smaller corporations and startups to conduct public offerings through lesser regulatory requirements than would be expected of larger capital offerings. One other key feature to equity crowdfunding as regulated by Reg CF are regulated intermediaries: online platforms where issuers may offer and sell Reg CF securities.17 These platforms serve as the only conduit between issuers and investors for Reg CF securities; issuers are prohibited from advertising to potential investors outside of these conduits. Regulated intermediaries are required to maintain certain disclosures and expectations, 18 and by regulatory design are required to be registered with the SEC and the Financial Industry Regulatory Authority, or FINRA, in furtherance of providing ample oversight of these platforms and issuers and protections to investors of any Reg CF security.19

Evolution Towards Equity Eventually, people questioned “why not buy a piece of any project, without a reward in exchange?” Most of these observers were unlikely securities lawyers, but nonetheless signaled crowdfunding’s mass adoption was near. Crowdfunding thousands of investors was the next logical stage of the funding strategy’s evolution.

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April 2019

COVER STORY By: David L. Morehous Managing Counsel, Morehous Legal Group, PLLC By: Haseeb Qureshi Attorney & Entrepreneur-in-Residence, Morehous Legal Group, PLLC Marketplace Acceptance A corporation may find itself with tens, hundreds, or potentially thousands of investors on its shareholder register from successfully crowdfunding investments through a financial intermediary.20 Managing these rights presents a corporate governance challenge for the corporation and a significant concern to future investors. Wherever shareholder consent would be required throughout the corporation’s lifecycle, the actual process of obtaining hundreds of votes for any shareholder action would impose appreciable real-world costs, in both dollars and time.21 These costs would slow, or even halt the growth of the business.22 Even worse, each of these shareholders is a potential plaintiff in suits against the corporation for breaches of fiduciary duties, violations of federal and state securities laws, and more.23 The risk of such suits potentially imposes and financial costs on the underfunded business. The risks of individual liability for officers and directors also cannot be overstated.24 If these risks were to be true or perceived to be true, even incredulous venture capitalists would view equity crowdfunding as an amateur or unpredictable vehicle for raising startup capital.25 In the period shortly after the adoption of Reg CF, the value of perceived risk of these threats to their investment has led to venture capitalists to reject the idea of investing in a crowdfunded company.26 Capital raising through venture capital investment remains an important source financing for high-growth startup companies. Venture capital investors’ disinterest in investing in equity crowdfunded companies raises potential real business challenges to the regulated intermediaries. To address the challenges to their own businesses, regulated intermediaries have implemented transaction structures that effectively transfer the entirety of investors’ governance rights to the intermediary or to the company.27 This addresses the risks raised by VC investors, however at the cost of depriving crowdfunded investors of meaningful participation in corporate governance. Ultimately, equity crowdfunding has an important role to play in the capital formation for small and growing businesses. However, raising capital in this manner presents significant legal risks, the management (or mis-management) of which can hinder the business’s future growth. Ultimately, the decision to engage in equity crowdfunding rests with the founders and operators of the business; legal counsel can support those founders by understanding and interpreting those risks to serve the business’s objectives.

April 2019

1 Daniel W. Linna Jr., White Paper, What We Know and Need to Know About Legal Startups, 67 S.C. L. Rev. 389, 389 (2016) (defining startups). 2 Alejandro Cremades, How Crowdfunding Works For Entrepreneurs, Forbes (Jan. 12, 2019, 8:28 AM), https://www.forbes.com/sites/alejandrocremades/2019/01/12/ how-crowdfunding-works-for-entrepreneurs/#57ee3310c531. 3 Zachary Ballas, Note, Equity Crowdfunding – The JOBS Act (Almost) to the Rescue, 25 Cardozo J. Int’l & Comp. L. 317, 317-320. 4 Id. 5 David Groshoff, Kickstarter My Heart: Extraordinary Popular Delusions and the Madness of Crowdfunding Constraints and Bitcoin Bubbles, 5 Wm. & Mary Bus. L. Rev. 489, 538-539 (2014). 6 This has brought challenges to individuals and companies having met only part of their required capital requirements. By allowing projects to continue without obtaining full funding, the individuals and companies are arguably placed at a greater risk of failure, inevitably diminishing the value of the resulting platform by leading to increased failures on its platform. 7 Seth C. Oranburg, Bridgefunding: Crowdfunding and the Market for Entrepreneurial Finance, 25 Cornell J. L. & Pub. Pol’y 397, 405-407 (2015). 8 Thomas Murphy, Playing to a New Crowd: How Congress Could Break the Startup Status Quo by Raising the Cap On the JOBS Act’s Crowdfunding Exception, 58 B.C. L. Rev. 775, 798 (2017). 9 Spotlight on Crowdfunding, U.S. Sec. & Exchange Commission, https://www.sec. gov/spotlight/crowdfunding.shtml (last modified Feb. 15, 2019). 10 Jumpstart Our Business Startups Act, Pub. L. No. 112-106, Title III, 126 Stat. 306 (2012). 11 (For tangential and related knowledge, Title IV of the JOBS Act discussed Small Business Capital Formation and establishes “Reg A+” financing, allowing small businesses to raise up to $55 Million from public offerings – both Title III and Title IV are similar in that congress eased the registration and due diligence restrictions onto such issuers.) 12 S.E.C. v. Ralston Purina Co., 346 U.S 119, 125-127 (1953). 13 Jason Fritton, How the JOBS Act Opens Up Deal Flow for Non-Accredited Investors, Am. Ass’n of Priv. Lenders (Feb. 6, 2017), https://aaplonline.com/how-the- jobs-act-opens-deal-flow-for-non-accredited-investors. 14 Regulation Crowdfunding, 17 C.F.R. § 227.100 (2017). 15 Investor Bulletin: Crowdfunding Investment Limits Increase, U.S. Sec. and Exchange Commission (May 5, 2017), https://www.sec.gov/oiea/investor-alerts-and-bulletins /ib_crowdfundingincrease. 16 The $107,000 and $1,070,000 limitations are inflation indexed and are adjusted annually by the SEC. 17 Regulation Crowdfunding, supra note 14, at § 227.300. 18 Id. at § 227.301-302. 19 Id. at § 227.300-303. 20 Cremades, supra note 2. 21 Brian Martucci, Top 10 Equity Crowdfunding Sites for Investors & Entrepreneurs, Money Crashers, https://www.moneycrashers.com/equity-crowdfunding-sites- investors-entrepreneurs/ (last visited Mar. 8, 2019). 22 Id. 23 Oranburg, supra note 7, at 426-427. 24 Id. 25 Id. 26 Ballas, supra note 3, at 324-325. 27 Groshoff, supra note 5, at 549-550.

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WATSON, ROACH, BATSON, ROWELL & LAUDERBACK, P.L.C. IS PLEASED TO ANNOUNCE THAT

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April 2019

VITE ET CREDE By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.

STANDING TALL . . . COLD Early in the morning, on April 7, 1933, a horse-drawn wagon slowly made its way up Pestalozzi Street and through the streets of St. Louis, Missouri. It already had been a very busy night. A crowd of around 25,000 people had gathered at a manufacturing facility at the end of Pestalozzi Street waiting to see what would happen at midnight. Happen it did.1 At 12:01 a.m., the factory blew its steam whistles, and dozens of trucks began to roll out of its gates. The Anheuser-Busch factory which, for thirteen years, had made syrups, ice cream, and Bevo2 – a nonalcoholic “health” beverage that was advertised as a “near beer,” whatever that might mean – had begun turning out cases of beer once again.3 Those six Clydesdales and their red, gold, and white beer wagon were a surprise gift from August A. Busch, Jr. to his father, August Anheuser Busch Sr. who had guided the company through the Prohibition years, and the trip through St. Louis was a bit of a victory lap. But, Busch, Sr. immediately recognized the advertising potential and had the Clydesdales sent to deliver beer to the Governor of New York and eventually, President Franklin D. Roosevelt.4 Prohibition was over. People could buy beer again – assuming you think malt beverages with 3.2% alcohol content (by weight) counts as beer. Apparently, the people of 1933 did think so, because they consumed an estimated 1.5 million barrels of beer on April 7th alone.5 Eventually, April 7th became the unofficial National Beer Day after a Justin Smith learned that Iceland has a “National Beer Day” to commemorate the end of its own version of Prohibition and started a Facebook page to see if Americans would be interested in the idea.6 Of course, Iceland’s beerban lasted 75 years and was just lifted in 1989,7 but if Iceland can have a holiday to celebrate the lifting of anti-beer oppression (and provide a reason to drink beer), America should as well. Common sense prevails, yet again. The most interesting thing about Prohibition is that it started and ended with local legislation, not Constitutional amendments. Certainly, the Eighteenth and Twenty-First Amendments made the ban (and the repeal of the ban) nationwide. But, before the Eighteenth Amendment was ratified and the Volstead Act8 was enacted (over Presidential veto), many of the states had already banned or imposed heavy regulations on the manufacture, sale, and consumption of “intoxicating liquors.”9 In fact, Tennessee was the first. On January 26, 1838, the General Assembly passed a statute making it a misdemeanor to sell “spiritous liquors” in taverns or stores.10 If you are doing the math, that is 81 years before the Eighteenth Amendment was ratified. By 1909, it was illegal to manufacture alcohol for consumption anywhere in the state.11 It was also illegal to sell any intoxicating liquors anywhere in the state that was within 4 miles of a schoolhouse – whether school was in session or not.12 These acts effectively prohibited the manufacture and sale of alcohol for consumption anywhere in the State because there was no place in the State more than 4 miles from a schoolhouse.13 That made it pretty tough on the nation’s oldest distillery, and Lem Motlow, the owner of the Jack Daniels Distillery, was indicted, tried, convicted, fined $250.00, and sentenced to 90 days in jail for manufacturing 375 gallons of intoxicating liquor on a single day.14 He took the case all the way to the Tennessee Supreme Court, and lost.15 So, Jack Daniels Distillery moved to Missouri, where Motlow was

arrested again in 1925 and 1926 for alleged violations of the National Prohibition Act.16 Neither indictment stuck.17 Even after the passage of the Cullen-Harrison Act in January 1933, which allowed the sales of alcoholic beverages with a 3.2% alcohol content (by weight) nationwide, and Tennessee’s ratification of the Twenty-First Amendment in August 1933, Tennessee continued to prohibit the manufacture of liquor until 193718 and continues to prohibit the manufacture and sale of liquor unless an individual county has elected to allow it.19 Beer was another story. At the time, “intoxicating beverages” was anything with an alcohol content of 5% or more (by weight).20 The law did not regulate alcoholic beverages with a lower alcohol content. Once the Cullen-Harrison Act allowed the manufacture and sale of beverages with 3.2% alcohol content (by weight) or less, beer was back in business in 1933, years before liquor.21 So what? On April 7, as you are celebrating National Beer Day, consider that April 7, 1933 is a significant day for another reason. The same day that the Cullen-Harrison Act was restoring Americans’ right to a “Tall, Cold One,” the Law for the Restoration of the Professional Civil Service Act became effective in Germany.22 It required that “all civil servants of non-Aryan descent” to be retired and removed from any public office.23 This included, not just public officials, but also all teachers, professors, social workers, and officers of public corporations. Later that year, a similar law was passed disbarring all lawyers of non-Aryan descent from practicing law.24 1933 marked the beginning of a series of laws which marginalized Jewish citizens from society and eventually led to the Holocaust. So, as you raise a tall, cold one on April 7th, make sure you take a moment to consider the importance of what we do as lawyers. Yes, we protect and defend the rights of our clients and promise to uphold the rule of law. But, we also have a duty to participate in the shaping of the law and ensure that those laws also protect and defend the liberties we have, because seeing the law in action is believing. Jeremiah McWilliams, A Good Time for a Beer—85 Years After the End of Prohibition, St. Louis Post Dispatch (Apr. 6, 2018), available at https://www.stltoday.com/business/ local/a-good-time-for-a-beer-years-after-the-end/article_239d4e16-54b3-11e0- 933a-00127992bc8b.html#9. 2 Lisa Gregory, Drink Bevo and Be Healthy: Near Beer During Prohibition, Digital North Carolina Blog (Sept. 8, 2014), https://www.digitalnc.org/blog/bevo-and-be-health, last visited Mar. 8, 2019. If any of you Aggies seriously thought the name had anything to do with longhorn steers, you really need to re-read your mascot history. 3 McWilliams, supra n. 1. 4 Jay Brooks, Budweiser Clydesdales Debut on April 7, 1933, Brookston Beer Bulletin (Apr. 7, 2017), https://brookstonbeerbulletin.com/budweiser-clydesdales-debut-on- april-7-1933, last visited Mar. 8, 2019. 5 Rupert Millar, On This Day 1933…Beer Goes Back on Sale in U.S., The Drinks Business (Apr. 7, 2017), https://www.thedrinksbusiness.com/2017/04/on-this-day- 1933beer-goes-back-on-sale-in-us. 6 Vernon Freeman Jr., How a Joke Between Friends Sparked a Richmond Man to Start National Beer Day, https://wtvr.com/2016/04/07/how-a-joke-between-friends sparked-a-richmond-man-to-start-national-beer-day, last visited Mar. 8, 2019. 7 Nanna Gunnarsdottir, Beer Day in Iceland, Guide to Iceland, https://guidetoiceland.is/ history-culture/beer-day-in-iceland, last visited Mar. 8, 2019. 8 Pub. L. 66-66, 41 Stat. 305-323, ch. 85 (Oct. 28, 1919), available at https://www.loc. gov/law/help/statutes-at-large/66th-congress/session-1/c66s1ch85.pdf. 9 Wired, April 7, 1933: Gimme a Tall, Cold One (Apr. 6, 2009) https://www.wired.com/ 2009/04/april-7-1933-gimme-a-tall-cold-one-2, last visited Mar. 8, 2019. 1

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April 2019

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barrister bullets BARRISTERS MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month at the Bistro by the Bijou (807 South Gay Street). Social time begins at 5:00 p.m., and the meetings begin promptly at 5:15 p.m. The next meeting will be held on April 10, 2019. There are many opportunities to get involved, and you are encouraged to contact Barristers President Mikel Towe (mtowe@lewisthomason.com) or Vice President Allison Jackson (ajackson@emlaw.com) for more information. STAFF THE VETERANS’ LEGAL ADVICE CLINIC The Veterans’ Legal Advice Clinic is a joint project of the KBA/ Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox Co. Public Defender’s Community Law Office, the UT College of Law, LMU Duncan School of Law, and the local VA office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. We serve approximately 20-30 veterans each month who have a variety of legal issues, including, but not limited to, family law, landlord/tenant, bankruptcy, criminal defense, consumer protection, contract, child support, and personal injury issues. We need attorney volunteers for the next two (2) clinics, which will be held on April 10 and May 8 from 12:00 to 2:00 p.m. at the Knox County Public Defender’s Community Law Office (1101 Liberty Street). Register to participate by clicking on March 13 or April 10 in the Event Calendar at www.knoxbar.org. LAW & LIBERTY AWARD NOMINATIONS- DEADLINE: APRIL 12, 2019 The Law Week and School Outreach Committee is seeking nominations for the Law & Liberty Award. All nominations must be received by April 12, 2019. The recipient should be visible to the legal profession and local bar association. The recipient should strive to foster and to maintain good relationships between the legal profession and the community, work to advance the understanding of the law and legal processes in the non-legal community, set an example of good citizenship, make time for volunteer work within the legal profession and otherwise, evidence high professional standards, express concern for the safeguard of personal, political, civil, and religious liberties, and be someone whose work is not normally recognized. Nominees do not have to be attorneys. Consider those in your firm, local civic and religious organizations, or the community who have worked to improve our legal system and protect civil liberties. Finally, please submit suggested nominees to the Law Week and School Outreach Committee Co-Chairs, Luke Ihnen (lihnen@acslaw.org) or Zack Walden (zwalden@eblaw.us). DONATE TO THE PROFESSIONAL CLOTHING DRIVE Spring Cleaning? Make room in your closet and help others at the same time! The Hunger & Poverty Relief Committee is collecting

STANDING TALL . . . COLD

SUPPORT THE VOLUNTEER BREAKFAST The Volunteer Breakfast occurs on the fourth Thursday of every month at 6:15 a.m. at the Volunteer Ministry Center (511 N. Broadway). Breakfast is served to 30-40 individuals and we’re finished by 7:30 a.m. The Committee needs volunteers to prepare and serve food and sponsor each breakfast. We need four or five volunteers each time, and sponsorships are $150.00. You can volunteer, sponsor a breakfast, or both! Please join us in serving the needy in our community. If you would like more information about volunteering or sponsoring a breakfast, please contact the Volunteer Breakfast Committee Co-Chairs, Paul E. Wehmeier at pwehmeier@adhknox. com or Matthew Knable at knablelaw@gmail.com, or sign up at http://www.knoxbar.org/KBA-News/help-volunteer-ministries. GET SOME “BOWLABLE HOURS” Join the Barristers for the 1st Annual Barristers “Bowlable Hours” (Bowling Night) on April 25, 2019, from 6:00 to 8:00 p.m. at Main Event (9081 Kingston Pike). Registration is open to all KBA members, law students, spouses, significant others, and friends. Pricing is $30.00 per person and includes two hours of bowling, shoe rental, and food/beverage by Main Event. A cash bar will be available. There will be prizes for the highest score, most strikes, and more! Register by April 18th by clicking on April 25 in the event calendar at www. knoxbar.org. MOCK TRIAL- THANK YOU The Mock Trial Committee Co-Chairs, Amanda Tonkin and Soojin Kim, would like to express their sincerest gratitude to the sixty attorneys and forty law student volunteers for serving as bailiffs and scoring/presiding judges during the 2019 Knoxville Regional High School Mock Trial Competition! This event was a huge success, thanks to the efforts of our volunteers. We are excited to announce that Farragut High School’s “Blue” Team received 1st place and Jefferson County High School’s “Blue” Team came in 2nd place. Both teams will complete in Nashville the weekend of March 22nd in the statewide competition.

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Tanner Hancock, History of Alcohol: University of Tennessee, UT Daily Beacon (Mar. 25, 2015), http://www.utdailybeacon.com/news/history-of-alcohol-university-of- tennessee/article_19c1e459-a62c-5e2a-bd24-064a95f57a5e.html. 11 Tennessee Secretary of State, Passage of Prohibition, https://sharetngov.tnsosfiles.com/ tsla/exhibits/prohibition/passage.htm, last visited Mar. 8, 2019. 12 See Motlow v. State, 145 S.W. 177 (Tenn. 1912). 13 See J.W. Kelly & Co. v. State, 132 S.W. 193 (Tenn. 1910) for an overview of the various statutes enacted to create state-wide Prohibition. 14 See Motlow, 145 S.W. at 178. 15 Id. 16 See U.S. v. Motlow, 13 F.2d 645 (M.D. Tenn. 1926). 17 See id. 18 Tennessee Secretary of State, Repeal of Prohibition, https://sharetngov.tnsosfiles.com/ tsla/exhibits/prohibition/repeal.htm, last visited Mar. 8, 2019. 19 See Tenn. Code Ann. §§ 57-3-102; 57-3-107. 10

professional clothing from April 8-22, 2019. Requested items include: slacks and skirts, suits, blouses and shirts, dresses, ties, and dress shoes. Multiple donation locations will be available, including locations on Gay Street and Main Street, at law schools, and in West Knoxville. Please do not donate any items with holes, stains, or rips. Women’s clothing will be donated to the YWCA and Connect Ministries Career Closet. Men’s clothing will be donated to Knox Area Rescue Ministries. For more information, please contact the Hunger & Poverty Relief Committee Co-Chairs, Meagan Collver (mdaviscollver@londonamburn.com) or Jason Collver (jcollver@utk.edu).

See S.B. 1122 (May 21, 1937), available at https://sharetngov.tnsosfiles.com/tsla/ exhibits/prohibition/repeal.htm. 21 1933 Pub. Acts, c. 69 § 1 (1933). 22 GHDI, Law for the Restoration of Professional Civil Service (Apr. 7, 1933), available at http://ghdi.ghi-dc.org/sub_document.cfm?document_id=1520. 23 Id. 20

See Arvind Dilawar, Two Tragedies, The Daily Beast (Feb. 1, 2019), https://www. thedailybeast.com/how-the-nazis-used-the-rule-of-law-against-jewish-lawyers.

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April 2019

SCHOOLED IN ETHICS By: Judy M. Cornett UT College of Law

IF JUDGES PERFORM OPPOSITE-SEX MARRIAGES, THEY MUST ALSO PERFORM SAME-SEX MARRIAGES On February 14, 2019, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Ethics Opinion 485, holding that judges may not refuse to perform same-sex marriages if they perform opposite-sex marriages. The Opinion distinguishes between judges who have a mandatory duty to perform marriages and those for whom performing marriages is merely a discretionary function. Those for whom performing marriages is mandatory must perform marriages for both opposite-sex and same-sex couples. Those for whom performing marriages is discretionary have three options: (1) perform marriages for all members of the public, in which case the judge must perform marriages for both opposite-sex and same-sex couples; (2) perform marriages for family and friends only, in which case the judge must perform marriages for both opposite-sex and same-sex family and friends; or (3) perform no marriages. The Committee’s rationale begins with Model Code of Judicial Conduct Rule 1.1., which provides that “a judge shall comply with the law, including the Code of Judicial Conduct.” Furthermore, Rule 2.2 requires the judge to “uphold and apply the law” and to “perform all duties of judicial office fairly and impartially.” The Committee also cites Rule 2.3(A), which provides that “[a] judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.” Likewise, Rule 2.3(B) states that a judge “shall not, in the performance of judicial duties... manifest bias or prejudice... based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation...” Finally, the Committee notes the Preamble, comment [2], which provides that “Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety...” With respect to Rules 1.1 and 2.2, the Committee cites Obergefell v. Hodges, 135 S. Ct. 2584 (2015) and states that “Obergefell makes clear that the U.S. Constitution prohibits state officials from engaging in discrimination and bias toward gays and lesbians in decisions related to same-sex marriage; in short, the decision establishes law with which judges must comply.”1 With respect to Rules 2.3(A) and (B), the Committee points out that a judge cannot treat opposite-sex marriages and same-sex marriages differently without running afoul of the prohibition on manifesting bias or prejudice based on sexual orientation. Bolstering its conclusions, the Committee reviews state judicial ethics opinions from Ohio, Arizona, and Nebraska. Each of these opinions held that judges must not treat opposite-sex and same-sex couples differently; if a judge performs weddings for opposite-sex couples, he or she must perform weddings for same-sex couples. The state ethic opinions also addressed the dilemma of judges who may wish not to perform same-sex marriages because of sincerely held religious beliefs. Each opinion concluded that, notwithstanding a judge’s sincerely held religious beliefs, he or she must not manifest bias or prejudice by refusing to perform same-sex marriages.2

Similarly, the ABA Committee held that the duty not to differentiate between opposite-sex couples and same-sex couples governs regardless of a judge’s sincerely held religious beliefs. The Committee cites the U.S. Supreme Court’s recognition in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018), of “the fundamental importance of impartiality on the part of all officials vested by the state with adjudicative authority.”3 Thus, although the Committee notes, “We recognize that a judge’s refusal to perform a same-sex marriage may be based on the judge’s sincerely-held beliefs regarding the concept of marriage,” the Committee also emphasizes, “[T]his opinion addresses the obligations of judicial officers under the Model Code.”4 The Committee also emphasizes that a judge may not engage in behavior that leads to the perception of bias or prejudice, citing In re Day, 413 P.3d 907 (Or. 2018), cert. denied, 139 S. Ct. 324 (2018). In that case, an Oregon judge changed his procedures for deciding whether to perform a marriage after same-sex marriage was legalized in Oregon. The judge instructed his staff to respond to officiating requests by first determining the gender of the two individuals. If the two individuals were opposite genders, the staff were told to schedule the ceremony. If the two individuals were of the same gender, however, the staff were instructed to notify the judge “so that he could decide how to proceed.”5 The Oregon Supreme Court held that this behavior violated the ban on manifesting bias or prejudice because, even though no request by a same-sex couple was denied, the staff knew of his differential treatment of same-sex couples, which was sufficient to undermine public confidence in the judiciary. Thus, the Committee concludes that judges who must perform marriages must do so for both opposite-sex and same-sex couples. Judges who have only a discretionary duty to perform marriages may refuse to perform any marriages at all. But if they choose to perform marriages, they must treat opposite-sex and same-sex couples the same. And if they choose to perform marriages only for family or friends, they must perform both opposite-sex and same-sex marriages for family and friends. What does the ABA Formal Ethics Opinion mean for Tennessee judges? The ABA opinion is not binding on Tennessee judges unless it is adopted by the Tennessee Supreme Court. The opinion is, at best, persuasive authority. However, the relevant provisions of the Tennessee Code of Judicial Conduct are identical to the provisions cited by the Committee. Therefore, unless the Tennessee Supreme Court diverges from the Committee’s interpretation of these rules (and the interpretations of three other state supreme courts), the ABA opinion may well presage Tennessee’s decision on this issue. 4 5 1 2 3

ABA Formal Ethics Opinion 485, at 6 (Feb. 14, 2019). See id. at 3-5. Id. at 6 n.34. Id. Id. at 7.

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

April 2019

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LEGAL MYTH BREAKERS By: Brad Fraser Leitner, Williams Dooley & Napolitan, PLLC

WHY DID THE LAWYER CROSS THE ROAD? As most of you know, Knox County Circuit Court and the United States District Court in Knoxville are just across the road from one another. In this article of Legal Myth Breakers, we look at another issue where the law differs significantly when the lawyer crosses the road from state court to federal court. Before and throughout most of law school, I believed anyone could be subpoenaed to court. At some point during my legal studies, I became aware that society deemed the time of some professionals too valuable to be needlessly tied up in Court, and as such may be exempt from a trial subpoena. The Tennessee Code specifies persons who are exempt from subpoena to trial, but still be subject to a deposition which may be presented at trial:

In another unreported 2015 case in the Eastern District of Tennessee, a party issued and served a trial subpoena upon a local attorney. The subpoenaed attorney raised Tenn. Code Ann § 24-9-101(a) (6) in support of a Motion to Quash. Magistrate Shirley cited Hawkins as persuasive authority in denying the Motion and ruled the Court is not bound by the statute.5 Later that year in a Middle District of Tennessee case, Judge Trauger issued an opinion, now reported, stating: In Tennessee state court, practicing physicians are exempt from being called to testify at trial, although they may be subpoenaed to testify by deposition. See Tenn. Code Ann. § 24-9-101(a)(6). In federal court, there is no analogous exemption for physicians otherwise subject to the subpoena power of the court.6

(1) An officer of the United States; (2) An officer of this state;

We are unaware of any federal circuit court opinions, reported or otherwise, addressing this issue with the statute. The rationale seems clear, as this is a procedural issue and not one of substantive law under Erie. Nonetheless, I had never appreciated this distinction until my good friend David Long pointed it out to me.

(3) An officer of any court or municipality within the state; (4) The clerk of any court of record other than that in which the suit is pending; (5) A member of the general assembly while in session, or clerk or officer thereof;

I remember in my early days of practice in federal court when former Magistrate Shirley warned many of us the first time we appeared before him that “you are now in the big leagues.” This was usually in conjunction with a warning and short lecture about knowing the differences not only in the rules of each court, but also paying attention to other subtle, yet critical differences. This is another reason why reading publications such as DICTA and attending CLE presentations relevant to your practice remain critically important in the practice of law. Even after several years of doing this, I still get a little nervous when I go across that road. Thanks, Dave.

(6) A practicing physician, physician assistant, advanced practice registered nurse, psychologist, senior psychological examiner, chiropractor, dentist or attorney; (7) A jailer or keeper of a public prison in any county other than that in which the suit is pending; (8) A custodian of medical records, if such custodian files a copy of the applicable records and an affidavit with the court and follows the procedures provided in title 68, chapter 11, part 4, for the production of hospital records pursuant to a subpoena duces tecum; and

Tenn. Code Ann. § 24-9-101(a). Tenn. Code Ann. § 24-9-101(b). 3 The Advisory Commission Comments to this Rule clarify that this is specifically intended to apply to witnesses otherwise exempted by Tenn. Code Ann. 24-9-101. 4 Hawkins v. Federated Dep’t Stores, Inc., 2006 U.S. Dist. LEXIS 100398, n.2 (T.C.A. § 24-9-101(a)(6) is mistakenly cited as “T.C.A. § 24–0–101(6)”). 5 See Am. Nat’l Prop. & Cas. Co. v. Stutte, 2015 U.S. Dist. LEXIS 85553. 6 Adams v Farbota, 306 F.R.D. 563, 568 n.7 (M.D. Tenn. 2015). 1 2

(9) A licensed clinical social worker, as defined in § 63-23105 and engaged solely in independent clinical practice, in proceedings in which the department of children’s services is the petitioner or intervening petitioner.1 This list of persons has expanded, particularly due to the evolution of the health care industry. If such a person is subpoenaed to trial and must file a Motion to Quash to seek relief the court “may” award reasonable attorney’s fees and expenses related to the Motion to Quash.2 However, under the Tennessee Rules of Civil Procedure, a Court may still order personal attendance of such witnesses. Tennessee Rule of Civil Procedure 45.05 provides that upon affidavit of a party or party’s attorney that a witness’s testimony is important, and that “proper effect of the testimony cannot in reasonable degree be obtained without an oral examination in court”, the court has the discretion to order such a witness at trial.3 When we cross the road to federal court, there is no such exemption for any of the persons listed in the Tennessee statute. In an unreported 2006 case, the Western District of Tennessee stated, “The court is unaware of any authority that holds that [T.C.A. § 24-9-101] prohibits a party from issuing a trial subpoena to a physician under the federal rules.”4

DICTA

April 2019

BAR HOPPING By: Brady Cody Lewis Thomason

Bar Hopping highlight one of the many beautiful courthouses around the State. The trick? It is up to you to figure out where. Congratulations to T. Harold Pinkley (a 4-time winner) for correctly identifying the Obion County Courthouse. 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. Have a photo that you would like to submit? Send me an email and have it featured in an upcoming issue.

April 2019

DICTA

B I L L & P H I L’ S G A D G E T S By: Bill Ramsey Neal & Harwell By: Phil Hampton Founder and CEO, LogicForce Consulting

HAVE WEB ACCESS, WILL TRAVEL ON THE CHEAP

We are big Chris Stapleton fans, and we have taken his song “Traveler” to heart. (Yes, we are travelers on this earth, sure as our hearts’ behind the pockets of our shirts.) But, as with everything we do, we must add a techie twist. Sorry, Chris! So, we thought we would share our favorite travel-related web sites and apps for looking for travel deals and travel opportunities. THE BEST “TRADITIONAL” TRAVEL SEARCH SITES Most of the time, we use our connected devices to find travel for a planned trip. When we do, we want to use the site as a travel agent replacement, that is, to find the cheapest, fastest, and most comfortable flight. Google Flights, Kayak, and ITA Software Matrix Each of these search sites are great, but we lump them together because we are told they are all powered by Google’s ITA. In our opinion, the best of the three is Google Flights. Why? It is very fast and gives the best variety of cheap flights to your selected destination. It may not always find the cheapest fare, but it is always very close. Its speed makes up for any other shortcomings. In addition, it provides a feature called “Explore.” When you are thinking about traveling to a general area and not a specific destination, it will let you compare prices for various months and compare prices to fly into cities in the destination area. This feature really helps when you are beginning to plan a trip. The main drawback is that none of these sites include Southwest in its searches – a drawback for Nashville travelers. But none do, except Southwest, which is why you should always check Southwest separately.

Momondo Many folks we know love Momondo. One reason is that it really works well on mobile devices. Its interface is simple – at the top, it displays the cheapest, quickest, and best flight price points. Click on one of those choices and it will display the flights within that price range, or you can review flights by carrier, times, and price. Above the search results, the top row will display three different price points: cheapest, quickest, and best. Clicking on either of those three prices will take you to the flights within the price range. Or, you can scroll through the results, as Momondo will show the results by the carrier, flight times, and price. It also supplies a “happiness” rating for each flight on a 10-point scale. One other advantage of searching with Momondo is that you can compare prices with other search engines without leaving Momondo – a pretty cool feature. Hipmunk The one app we continue to love is Hipmunk, as it is especially informative in selecting flight reservations. We love the way Hipmunk displays the available flights based on a scale ranking the flights from least painful to most painful – taking into account the price, layover, departure, and arrival times. We started using Hipmunk several years ago just for airline reservations. However, as the app has evolved, you can now use it to book your entire trip with just a click of a button. Hipmunk really has become a digital travel assistant. It lacks some of the features of other web search sites, but it works great. Besides, we love the name.

WHEN YOU WANT TO TRAVEL AND DON’T CARE WHERE YOU GO Sometimes you just want to get the “hell out of Dodge” as when the bartender (or a loved one) tells you “I don’t care where you go, but you can’t stay here.” These sites allow you to go somewhere – anywhere cool to cool your jets – at a good price. But be careful, some of these sites receive terrible reviews. Look before you leap. Airfare Watchdog We think this is the best of these sites that ask the question, “Where do you want to go?” We really like the feature “Today’s Top Fares.” It displays the top 50 cheapest fares that it can find available at any given moment. It’s also allows you to compare dates, departure and arrival cities, and even deals from select airlines – even Southwest on occasion. The interface can be clunky at times, but when your better half tells you to leave, you should visit this site. The Flight Deal When you don’t have to leave immediately, you can use The Flight Deal. It provides you with some unbelievable deals, especially if you follow it on Twitter. But be careful, it can be addictive. Before you know it, you could be traveling all the time, like Jim Kelley. Flight Deal will make you decide to travel to places you’ve never heard of before. Using The Flight Deal is a bit more complicated, though. It uses ITA Software Matrix to locate the flights, but you must go to the airline’s site to actually book the flight. (Many times, that is the best way to book a flight anyway, once you have identified the flight you want to take.) You can also build in layover times in your searches using ITA Matrix. SITES TO USE WHEN YOU DON’T HAVE A LOT OF MONEY TO SPEND There are times when you want to travel, but your pockets are empty because you spent too much of your hard-earned cash on buying gadgets you read about in our column. We feel your pain. When that happens, but you still want to travel, try these sites. Hopper We are fans of Hopper. We had already experimented with it, with some success. Now, though, they really have sucked us in. Earlier this year it partnered with several airlines to provide what it calls “Secret Fares.” We love this concept, as these secret fares are sometimes much cheaper than published fares, and Hopper contends that the feature is consumer friendly because it tends to drive prices down. In any event, Hopper does a great job of alerting you when fares to a given city drop, and lets you know to go ahead and buy. Again, it does not include Southwest fares. Scott’s Cheap Flights Scott Keyes follows airline prices like a hawk, just like Phil follows the prices on Microsoft products. So, join his email list. He alerts his subscribers to deals he uncovers with his internet bots, trolling for deals, some of which are dirt cheap. If you become a premium subscriber for $39 a month (which seems a bit out of character for cheap people), you will be the first to know. Some of these deals disappear with hours, or even minutes, especially when the airlines realize they have made a mistake. Happy Traveling. See you next month.

DICTA

April 2019

WELL READ By:

Wanda S. Sobieski Sobieski & Messer

THE WOMAN’S HOUR The Woman’s Hour, released within this last year, sheds important light on the ferocity of the battle for and against women’s right to vote. Although it reads more like a novel than a history book, it is grounded in a number of contemporaneous sources that give us a better view behind the curtain into the past. Extensively researched and footnoted, The Woman’s Hour exposes an intense battle fought here in Tennessee, the last battleground for the final ratification of the Nineteenth Amendment: women’s right to vote. Filled with intrigue, it documents the enormous effort of the woman’s suffrage movement, culminating the seventy-two-year struggle for democracy’s most precious prize – the vote.

wearing his red rose, he switched his vote, broke the tie and thereby enabled millions of women to have a voice in this government. Faced with accusations of taking a bribe, he pulled his mother’s letter from his coat pocket. She had asked him to “be a good boy,” to “do the right thing,” and support suffrage. He explained that he always thought it was best to follow a mother’s advice.

The book focuses closely on the last six weeks before the historic vote. Filled with real life double-crossings, hidden agendas, powerful, well-financed opposition with a misguided figurehead (woman), threats, bribery, free-flowing liquor at the Anti’s headquarters during prohibition, and an unlikely hero, who was exceedingly young (twenty-four years old) and had been a steadfast opponent until the last moment. The unlikely heroine was not a dedicated suffragist, did not walk in the ranks of those who devoted their entire lives and fortunes to the cause, but she did use what influence she did have with her son, and that proved critical.

Never before had so many people won democracy without bloodshed or war. The story of the final days is a uniquely Tennessee story. It illustrates, however, the importance of just one more vote, just one more person doing the right thing. It reminds us that as frustrating and unpredictable as progress may be, the tiebreaking vote that turns the tide of events can come in the most unexpected ways. It’s a good read. Packed with a somewhat scary dose of reality, it brings together the facts and details of that furious battle. Looking back, it’s hard to understand why it took almost a century and a half after the formation of this democracy to include over half of the people in the franchise. Looking at it in context, it not only exposes flaws in logic and human foibles, but it also illuminates the work of many of our incredible ancestors. It challenges us to give our children and grandchildren the benefit of similar persistence and sacrifice to ensure that they can have a better world and then look back and wonder why it was so hard to get there.

After weeks of procedural wrangling, the Tennessee House was forced to a floor vote on the thorny Susan B. Anthony Amendment. Since thirty-five states had already ratified, the fate of the Amendment was in Tennessee’s hands. Supporters of the Amendment had been pinned with yellow roses; opponents sported red roses (hence it came be known as the War of the Roses). When the lobbying, threats, and wooing were done, the House stood evenly divided. The Amendment would lose without a majority. As each man rose to voice his vote, each voted in accordance with the rose he wore. When it came to young Harry Burn (from Niota in the red county of McMinn) still

Address Changes Jarrod D. Blue BPR #: 035695 Collaborative Composite Solutions Corp. 2360 Cherahala Blvd. Knoxville, TN 37932-1563 Ph: (865) 946-1712 jblue@iacmi.org

April 2019

Please note the following changes in your KBA Attorneys’ Directory and other office records:

Megan D. Duthie BPR #: 035699 P.O. Box 10053 Knoxville, TN 37939-0053 megandduthie@gmail.com

M. Patrick O’Neal BPR #: 034777 Leitner, Williams, Dooley & Napolitan, PLLC 900 South Gay Street, Suite 1800 Knoxville, TN 37902-2324 Ph: (865) 523-0404 patrick.oneal@leitnerfirm.com

DICTA

Dwight E. Tarwater BPR #: 007244 Paine | Tarwater | Bickers, LLP 900 S. Gay Street, Suite 2200 Knoxville, TN 37902-1821 Ph: (865) 525-0880 det@painetarwater.com

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

NATIONAL EMERGENCY!

Have you stocked up on canned goods? Bottled water? Toilet paper? If not, you might want to get to the grocery store. After all, we’re in the midst of a National Emergency. Or perhaps not. The term “National Emergency” has no fixed meaning. It doesn’t necessarily involve military attacks or natural disasters. Presidents of various parties have invoked their emergency powers many times in the past two centuries, in situations as varied as armed rebellions and postal strikes.1 But where does the president get such a power? Two places: the Constitution and federal statutes. Unlike Article I, which specifically enumerates the powers of Congress, and Article III, which lists nine distinct types of federal jurisdiction, Article II simply gives the president “[t]he executive Power.” Um, okay, but, what, precisely, does that “Power” include? Article II isn’t too clear. Oh, it mentions a couple of specifics, such as the Commanderin-Chief power, and it mandates that the president “shall take Care that the Laws be faithfully executed,”2 but, beyond that, the executive power is just a great big amorphous ball of... something. Something that the Framers left to us to define. Various presidents have interpreted their own powers either expansively or narrowly, depending upon their circumstances and political philosophies. George Washington was scrupulous in trying to stay within his constitutional lane, even asking the Supreme Court for advice on U.S. neutrality in European wars.3 When he led an army into western Pennsylvania to suppress the Whiskey Rebellion, he did so with militias authorized by the Militia Act of 1792. Faced with a secession crisis several score years later, Abraham Lincoln increased the size of U.S. military forces, suspended habeas corpus, and blockaded southern ports. Lawyers and historians still debate whether he exceeded his Article II powers, noting that Lincoln acted without Congress, which has the sole authority to raise armies and navies, appropriate money, declare war, and (arguably) suspend habeas corpus. But Congress was not in session when Fort Sumter fell. Lincoln was faced with a rebellion of unprecedented scope, with enemies to his rear, primarily along the strategic railroads of Maryland, where Confederate sympathizers were harassing Union troops. Fortunately for him, and for our nation, Congress eventually ratified Lincoln’s actions. In May, 1941, seven months before Pearl Harbor, Franklin Roosevelt declared an “unlimited national emergency” to help Great Britain fight the Nazis in the Battle of the Atlantic.4 He took this action, which put American naval forces in direct contact with German submarines, without even seeking congressional authorization. All of these actions were (and remain) controversial, but our three greatest presidents5 were facing situations which were clearly emergencies. They could justify their actions as necessary, and therefore constitutional. After all, every president takes an oath to “preserve, protect, and defend the Constitution of the United States.”6 On the other hand, declarations of “national emergency” present an obvious threat to civil liberties and, indeed, to the continued existence of our constitutional form of government. A chief executive, even one with the best of intentions, can assume so much power that he becomes more of a dictator than a president. Such a charge was often leveled against Lincoln. Bad actors, like Richard Nixon, present an even greater threat. He infamously stated, after leaving office, that, when a president does something, “that means that it is not illegal.”7 In the wake of Nixon’s many scandals, Congress approved the

National Emergencies Act8 in 1976. Under that act, the president may declare national emergencies of only one year’s duration. When he declares such an emergency, he must specify which of the many available emergency statutes he is invoking, and which emergency powers he intends to exercise. Congress must meet periodically to decide whether to end any current emergencies. All of which sounds well and good, but, in practice, not so much. Dozens of national emergencies have been declared since the Act went into effect, and presidents of both parties have routinely renewed their declarations. Congress has never performed a comprehensive review. And, perhaps most fundamentally, the Act does not define what a “national emergency” is, effectively leaving that decision to the president. Enter Donald Trump. He has declared that longstanding illegal immigration constitutes a national emergency that justifies his unilateral decision to construct a massive wall between the U.S. and Mexico. Many people, notably local and state officials along our southern border, note a decline in illegal immigration in recent years and deny that any emergency exists. All of the members of Congress who represent border districts have opposed Trump’s wall.9 Trump is also using his emergency powers in a way that has never been done before: he is bypassing the normal process for appropriating federal funds – which, according to Article I, requires an act of Congress – and is simply seizing money from other federal projects to fund his wall. I recently discussed all of this with an expert, Andrew Boyle of the Brennan Center for Justice, on my public radio program, Your Weekly Constitutional. You may wish to check out the podcast version. Ultimately, after Congress has weighed in, the federal courts will likely have to decide whether Trump has exceeded his powers. Those powers are, as noted by Justice Robert Jackson, at their zenith when a president acts with Congress, and at their nadir when he acts against Congress.10 Let’s hope the courts get it right. For if we surrender too much power to any president, of whatever party, it will really be time to stock up on toilet paper. 1 Yep. A postal strike. In fairness, shutting down the mails in the Twentieth Century was akin to shutting down the internet today. Still – the National Guard? Richard Milhous Nixon PROCLAMATION 3972 – March 23, 1970 DECLARING A NATIONAL EMERGENCY By the President of the United States, available at http://www.lawand freedom.com/site/executive/execorders/Nixon.pdf. 2 U.S. Const. art II, § 3. 3 That didn’t work out so well. The Supreme Court refused to advise him, establishing the prohibition on advisory opinions which persists to this day. Letter to George Washington from Supreme Court Justices, 8 August 1793, available at https:// founders.archives.gov/documents/Washington/05-13-02-0263. 4 Presidential Proclamation 2487 of May 27, 1941, by President Franklin D. Roosevelt declaring a state of National Emergency, available at https://catalog.archives.gov/ id/299968. 5 A matter of opinion, obviously, but, in my view, no other president compares to those who created the nation (Washington), preserved it during massive rebellion (Lincoln) or saved the entire world from fascist tyranny (Roosevelt). Just sayin’. 6 U.S. Const. art II, § 1. 7 Nixon’s Views on Presidential Power: Excerpts from a 1977 Interview with David Frost, available at http://landmarkcases.org/en/Page/722/Nixons_Views_on_ Presidential_Power_Excerpts_from_a_1977_Interview_with_David_Frost. 8 50 U.S.C. 1601 et. seq. 9 Every congressperson along southern border opposes border wall funding, CBS News, January 8, 2019, available at https://www.cbsnews.com/news/ trumps-border-wall-every-congressperson-along-southern-border-opposes-border wall-funding-2019-1-8/. 10 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring).

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. 26

DICTA

April 2019

GRAMMAR GRINCH By:

Sarah M. Booher OEB LAW, PLLC

POLITICS, RELIGION, & THE OXFORD COMMA

Dearest Gentle Readers – There was no Oxford comma there, probably because those lawmakers in Maine highly discourage its use. This left folks on the horns of a dilemma. Did that mean the distribution of all three categories is exempt? Or did it mean that only the packing for the shipping and distribution of them is exempt? Ultimately, the United States Court of Appeals for the First Circuit issued a 29-page decision in favor of the drivers (I’m not sure whether I swooned more the first time I saw Pride & Prejudice as a tween or when I read this legal ode to a comma). The court cited a lack of certainty in the way the law was written. While the case ultimately settled for $5 million, the drivers’ attorney would never give his personal opinion on the Oxford comma.

Your mama likely raised you to know there are three topics best avoided at a cocktail party: politics (pardon me while I go jab my eye out with a pickle fork), religion (some of us at the party don’t want to acknowledge that we’re there breaking our Lenten fasts), and the Oxford comma. Yes, I said it! Unless you want to incite violence, James Bond style, STEER CLEAR OF THE OXFORD COMMA CONVERSATION. Let’s start with what it is. The Oxford comma, also known as a serial or Harvard comma (seriously), is a comma used after the penultimate item in a list of three or more items, before a coordinating conjunction like “and” or “or.”1 Aldus Mautius is the man apparently attributed with giving us the comma “as we know it today.” Horace Hart, the printer and controller of the Oxford University Press from 1893 to 1915, is usually the man attributed with giving us the controversial comma. However, it wasn’t named as such until Peter Sutcliff wrote a history of the Oxford University Press in 1978, and he says it was F. Howard Collins who gave us the precious stylistic device, not Hart.2 Oxford comma advocates, including American Psychological Association (APA), American Medical Association (AMA), Chicago Manual of Style, Oxford University Press (sometimes) and the Elements of Style, believe it makes a sentence clear, unambiguous, and understandable. It is the “arbiter of clarity” and consistency.3 Enough said. On the other hand, naysayers like The New York Times, The Associated Press, Cormac McCarthy, and the Maine Legislative Drafting Manual, find commas to be overused devices that detract from the actual point of the communication: words. According to Gertrude Stein, “A comma is a poor period that lets you stop and take a breath, but if you want to take a breath you ought to know yourself that you want to take a breath.” She continues, asking if we are always taking a breath, why would one breath be emphasized with a comma over another?4 Le sigh. Gentle reader, at this point you may be asking why I listed the mundane Maine Legislative Drafting Manual among other, more wellknown members of Team Hater. Well, because of that pesky little appeal from 2017 involving three truck drivers, a dairy company, and four years’ worth of denied overtime pay that amounted to about $10 million.5 Oh, and the Oxford comma is the star of the case! In short, the drivers had a sour taste in their mouths from all the fresh milk they’d delivered across the state at their regular old rate of pay. As their attorneys fought to get them that overtime moolah (sorry, I couldn’t resist), they noticed the relevant Maine statute says overtime pay law doesn’t apply to: “The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish product; and (3) Perishable foods.”6 April 2019

So where does this leave us? Is a comma, or lack thereof, actually going to cost most of us $5+ million? Probably not. And as Stephen Spector tells us in his Oxford Academic YouTube video, your preference likely depends on “what you were raised on.”7 Whether you use the Oxford comma is about as important as your feelings on bourbon v. scotch, Home Depot v. Lowe’s, or mashed potatoes v. Yorkshire pudding with your roast beef. However, here’s some points to ponder. First, consistency yields clarity. Picking one side and sticking with it within the body of your piece will often help your readers understand your meaning. Second, remember that punctuation is often a stylistic device, not a hard and fast rule for an often-changing linguistic landscape. Therefore, don’t be afraid to employ an em dash or semicolon occasionally for variety and interest. Third, your punctuation should give your words a clearer and more powerful meaning. Too much punctuation can unintentionally slow your reader down, making them lose sight of your meaning. Make your words, not your punctuation, incite passion in your readers. Finally, listen to the Maine drivers’ attorney. If there’s any ambiguity, “tear up what you wrote and start over. Add a comma or rewrite the sentence.”8 Better yet, avoid the topic altogether at your party and go find yourself some more snacks to munch on.

www.google.com, accessed 3/5/19. “Where Did the Oxford Comma Come From and Why Is It So Important?,” www. scribendi.com, https://www.scribendi.com/advice/oxford_comma_importance. en.html, accessed 3/5/19. 3 “The Arguments for and Against the Oxford Comma.” Emily Hartshorn, New Mexico Daily Lobo. Published 2/7/19, accessed 3/5/19. 4 Joe Bunting, “The Oxford Comma is Pretentious,” citing Stein’s book, On Punctuation. https://thewritepractice.com/oxford-commas-are-pretentious/, accessed 3/5/19. 5 Daniel Victor, “Lack of Oxford Comma Could Cost Maine Company Millions in Overtime Dispute,” https://www.nytimes.com/2017/03/16/us/oxford-comma- lawsuit.html. Published 3/16/17, accessed 3/5/19. 6 Id. 7 Stephen Spector, “The Oxford Comma: What Everyone Should Know.” Oxford University Press. https://www.youtube.com/watch?v=SatL3JZyM1s. Published 7/2/18, accessed 3/5/19. 8 Daniel Victor, Id. 1 2

DICTA

April 2019

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. MENTORS AND ATTORNEYS NEEDED A newly developed reentry program for people who have been released from federal prison is in need of mentors who are willing to walk with the participants as they come back into the community. Mentors must have listening skills and be able to answer questions about day to day issues. Mentors will provide much needed individual support within a well-defined framework. Attorneys who are able to answer questions about a variety of topics are, also, needed. Contact Gina Carmichael at 865-6377979 for more information. MARK STEPHENS ADMITTED TO AMERICAN COLLEGE OF TRIAL LAWYERS Mark Stephens, Knox County’s Public Defender, has become a Fellow of the American College of Trial Lawyers. The induction ceremony at which Mark Stephens became a Fellow took place recently before an audience of 570 during the recent Induction Ceremony at the 2019 Spring Meeting of the College in La Quinta, California. COURT INTRODUCES CIVICS WEBSITE Chief Judge Thomas A. Varlan of the U.S. District Court for the Eastern District of Tennessee has announced an exciting new court website that helps students, teachers, and the general public learn more about the federal judicial system. The address is connections.tned. uscourts.gov. The webpage is part of the court’s civics and outreach program. Those who want to

April 2019

learn more about the new program may contact Carrie Stefaniak at 423-752-5287 or Carrie_Stefaniak@tned.uscourts.gov.

OFFICE SPACE AVAILABLE: •

McKellar & Easter is seeking an attorney to rent office space in its West Knoxville location. Rent shall include access to the internet, phone lines, a fax line, and copy machines. Additional office space can be provided for a legal assistant or paralegal if necessary.

•

Please email a resume and cover letter to ndm@helpingclients.com 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 900 sq ft. Present floor plan accommodates four offices plus a conference room and a reception area. One Level. Offices on either side occupied by long-term law firms. Very Affordable Rate with a two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.

LAWYER NEEDED FOR NON-PROFIT BOARD Girls on the Run of Greater Knoxville, a local non-profit organization, is seeking an interested lawyer who would be willing to serve as a board member for the organization. For more information and to apply, please contact Courtney Read at cread@watsonroach.com. PARALEGAL ASSOCIATION MEETING The Smoky Mountain Paralegal Association (“SMPA”) will hold its monthly meeting on Thursday, April 11, 2019, at 12:00 p.m. at the Blount Mansion Visitors Center, Knoxville, Tennessee. Lisa Hatfield, Asst. City Attorney, City of Knoxville will be speaking on New State Laws. A lunch buffet is available at the cost of $12/person with reservations. Please contact Caroline Sudlow, ACP, at president@ smparalegal.org or (865) 215-3676 for additional information and/or lunch reservations. If you would be interested in speaking at a future SMPA meeting, please contact April L. Denard, CP, First Vice-President, at aprileigh34@gmail. com. LEGAL HISTORY VIDEOS AVAILABLE 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.

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

PRO BONO SPOTLIGHT By: Kathryn Ellis Pro Bono Director AidPofROJECT East Tennessee 2018 PROLegal BONO BY THE NUMBERS

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2018 PRO BONO PROJECT BY THE NUMBERS Every year, Legal Aid of East Tennessee (LAET) submits a Private Attorney Involvement (PAI) Plan to LegalPRO Services Corporation (LSC). ThePROJECT purpose of the plan is to show how LAET’ s 2018 BONO Pro Bono Project is succeeding in its five-fold mission. As stated in the annual PAI Plan, the mission of year, the PBP is: Aid of East Tennessee (LAET) submits Every Legal anearly Private Attorney Involvement (PAI) In 2018,of 20% theshow client files closed Plan to Legal Services Corporation (LSC). The purpose the plan isof to how LAET’forsKnox, BY THE NUMBERS Blount,As Loudon, counties worked Pro Bono Project is succeeding in its five-fold mission. statedand in Sevier the annual PAIwere Plan, the on

In 2018, nearly 20% of the client nearly files 20% In 2018, closed for Knox, of the client files Blount, Loudon, and closed for Knox, Sevier counties wereand Blount, Loudon, worked on by Pro Sevier counties were Bono Project worked on by Pro volunteer attorneys. Bono Project

Every year, East Tennessee (LAET)that submits a Private •mission ToLegal supplement the LAET staff members ofAid theof is: services Pro Bono Project volunteer attorneys. provide toPBP people (LSC). with civil bylegal Attorney Involvement (PAI) Plan tolow-income Legal Services Corporation problems; The purpose of the show how LAET’s Pro Bono Project • plan Tois to supplement services that isLAET members In 2018, slightly more that seven percent of the private attorneys • its To serve the As barstated bythe andstaff efficient succeeding in five-fold mission. inoffering the annualconvenient PAI Plan, the with provide to low-income people civil legaloffices’ service area participated in the Pro Bono Project opportunities for lawyers to fulfill their ethical duties in our Knoxville problems; mission of the PBP to is:render pro bono service and enjoy the personal through advice clinics and direct client representation. During 2018, there rewards that come from service others; • To serve the LAET bar by offering convenient and efficient • To supplement the services that staff memberstoprovide to were 505duties files opened in those counties and assigned to private attorneys opportunities for lawyers to fulfill their ethical low-income with civil legal problems; • Topeople strengthen the partnerships among LAET, through the PBP and there were 493 PBP files closed. to render pro bono service and enjoy the personal volunteers (lawyers, law students, • To serve individual the bar by offering convenient and efficient rewards that come from service to others; paralegals, court reporters, social workers, etc.), and opportunities lawyers to fulfill ethical render they court astheir well the to entities represent Mark Your Calendars: • for Topersonnel strengthen theas duties partnerships among LAET, pro bono(law service and enjoy theassociations, personal rewards that come from organizations, firms, bar community individual volunteers (lawyers, law students, *etc.), April and 10 (12:00-2:00) – Veterans Advice Clinic at the by creating opportunities the justice paralegals, court reporters, socialforworkers, service toetc.) others; community to collaborate inindividual addressing the legal court personnel asLAET, well as the entities they needs represent Knox County Public Defender’s Community Law Office • To strengthen the partnerships among of low-income (law firms, persons; bar associations, community organizations, volunteers (lawyers, students, paralegals, court reporters, etc.)law by creating opportunities forthereby the justice * April 13 (9:00-12:00) – Knox County Saturday Bar at • To increase the sense of investment—and the to collaborate thehave legal needsKnoxville Office social workers, etc.), and court personnel ascommunity well as in theaddressing LAET’s levelcommunity of support—that members in of low-income persons; entities they (law bar associations, therepresent work thatfirms, LAET does by community offering them the___________________________________________ opportunity to participate in that work; and • To the sense for of the investment—and thereby the organizations, etc.) increase by creating opportunities justice * May – Debt Relief persons Clinic at the Knox level of support—that community have4 (9:30-12:30) in challenges • Totoheighten awareness of the general public about the facing of community collaborate addressing the legal needs low- members the workinthe that LAET does byofoffering them the opportunity to participate in that work; also County Publicday-to-day Defender’s Community Law Office limited means, not only in the justice system, but in their lives. income persons; and * Mayabout 4 (9:00-12:00) – Knox County Barof at • To increase sense of investment and thereby theof level • theTo heighten the– awareness the general public the challenges facingSaturday persons Inof support 2018, –slightly more that percent of the private attorneys in our Knoxville offices’ but LAET’s Office that community members have in the work that limited means, notseven only in the justice system, also Knoxville in their day-to-day lives. service area participated in the Pro BonoinProject through advice clinics and direct client LAET does by offering them the opportunity to participate * May in 9 (12:00-2:00) – Veterans Clinictoat the representation. During 2018, there were 505 files opened those counties andAdvice assigned that work; and private attorneys through thethat PBPseven and there wereof493 filesCounty closed.Public In 2018, slightly more percent thePBP private attorneys in Defender’s our Knoxville offices’ Knox Community Law Office • To heighten awareness of the general in public the Bono Project through advice clinics and direct client servicethearea participated theabout Pro * May 18 (9:00-12:00) – Blount County Saturday representation. 2018, were 505 files opened in those counties and assigned Bar to at challenges facing persons ofDuring limited means, not there only in the private attorneys through the PBP and there were 493 PBP files closed. Knoxville Area Pro Bono Project: Total Lawyers and Available Lawyers LAET’s Blount County Office justice system, but also in their day-to-day lives. Private Active County Total Practice and Available Lawyers in 2018 Knoxville Area Pro Bono Project: Total Lawyers

volunteer attorneys.

Blount

County

Knox Blount Loudon Knox Sevier Loudon Sevier Total Total

148

99Private

Total

Practice

31 Active

in 2018

1,793 148 23 1,793 105 23 2,069105

1,297 99 18 1,297 82 18 1,49682

31 7 62 9 7 109 9

2,069

1,496

109

Knoxville Area Pro Bono Project: Files Opened and Closed in 2018 Volunteer’s County Knoxville

Blount

Volunteer’s County

Knox Blount Loudon Knox Sevier Loudon Sevier Total

FilesProject: Opened Files Closed Area Pro Bono Files Opened and Closed in 2018

82 Files Opened

81 Files Closed

379

374

16 28

82 379

16 505 28

12 26

81 374

12 493 26

For LAET and our clients,Total these numbers are wonderful because505 it shows that with help from so many of you we have been able 493 to assist hundreds of members of our community who we could not otherwise help. For all your help, thank you. 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

DICTA

April 2019

Q: A:

THE LAST WORD By:

Jack H. (Nick) McCall

Harry, in last month’s issue, you began sharing some “war stories,” memories of mentors, and the story of “three good hugs.” Would you pick up the story line?

HARRY P. OGDEN

Another mentor was Squire Henry T. Ogle, a longtime lawyer here. I shared space with him after I came back from Memphis, from the summer of 1977 until spring 1979, when I joined the Egerton, McAfee firm. The Squire was kind of a maverick; he had a lot of real estate and business interests, and he didn’t have to practice law to make a living. He was a great business lawyer. He always read the Tennessee Reporter advance sheets; as soon as they came in the mail, he’d drop what he was doing to read them. That was one great lesson. I had occasion one time after I practiced with him to represent a legal malpractice carrier, and he was representing a plaintiff. He’d entered into a tolling agreement with the adjustor who sent me this case. It turned out that the tolling agreement had been signed after the statute had already run. I talked to the Squire a few times and drafted a letter telling him that the statute had run. I asked if I could come see him; I did, and I handed him the letter. He looked at it and he basically said, “Get out of my office.” He wouldn’t even shake my hand. I sent him a card that weekend. I recalled that when we were practicing law before, we were working one day after hours, when all the secretaries were gone, on a vendor-financed transaction. We literally copied and cut-and-pasted, with tape, the legal description from a warranty deed into a trust deed that we had to get done. The deal closed; everyone shook hands and went their separate ways. When I commented that the Register might not be too happy with the quality of that taped on legal description, Squire said, “Harry, the practice of law is not a popularity contest.” The Register accepted my “cut and taped” Trust Deed. In the card I sent Squire a few days after being unceremoniously asked to leave his office, I reminded him of what he’d said, adding: “You were right then, and you still are: the practice of law is not a popularity contest.” A few months later, his son died, and I went to the funeral home. Squire hugged me and just said, “Harry, thanks so much for that card.” My next mentor: Don Paine, who was at Egerton, McAfee when I left Squire Ogle’s office. When I was awarded the Don Paine Award by LAET last fall, I reminded the group and Don’s daughter and son-in-law that I’d practiced with Don. What an incredible resource it was to have Don down the hall, or looking over your shoulder, critiquing some of my earliest depositions in my civil practice! Talk about someone who read all the advance sheets: I’m convinced he made Lee Smith what his firm is today, since Lee sent Don all the advance sheets and opinions, the moment they were released. Long before we had TAM and the TBA Today, Don was cranking out summaries and updates. He was not just an excellent lawyer and example; I told the LAET that pro bono was just something that Don always did. It was just part of being a lawyer, part of the deal of holding a law license. It became part of my deal as a lawyer also. I’ve tried cases literally from Memphis to Bristol and in various courthouses across the state. My wife Amy is a big hugger. I’ve gotten to be more of a hugger after being married to her for 46 years. So, let me leave you with stories about three hugs. The first goes back to the mid-1990s. Judge Jordan, after coming to Knoxville, was then the junior District Judge. His court was in the Court Square Annex, and I tried a civil rights jury trial for 4-5 days. It was kind of a real crapshoot. The Blount County Board of Education was dismissed by Judge Jordan, and the case went to the jury against the Blount Count Schools Superintendent. The school superintendent was John Davis, a really good guy and also a big guy; he was twice as big as me. When the jury came back with a defense verdict, he and I hugged, right there in the courtroom. That was a first for me. Another hugging experience: Tim Priest and I tried a water-slide accident case in Sevier County before Judge Dick Vance, a wonderful judge and man. (Side note: I borrowed Dick Vance’s furniture when he went to the DA’s office

in Sevierville, while I was with Squire Ogle. Having used his furniture for a few months before I could afford office furniture, I’ll always have a special place for him in my heart.) This was one of the worst verdict experiences I ever had: the jury came back with $2 1/2 million for a man who, while coming down the water slide, had his legs “wish-boned” when he hit the water. (Every man in earshot including those on that jury seemed to walk a little funny after hearing these facts!) The husband and wife were nice, “salt-of-the-earth,” as my grandmother would have called them, people from Louisville, Kentucky who’d been in Pigeon Forge on vacation. There was no question he’d been seriously and legitimately injured. We could have settled, but my client would not offer any money, so off we went to trial. While awaiting the verdict after two trial days, the Plaintiffs were fascinated by the statue of Dolly Parton, and they were taking pictures of each other by her statue. I said, “Why don’t I take a picture of both of you by Dolly?” When the jury came back, this very nice lady gave me a big hug. I never had gotten a hug from an opposing party before - or since! The third hug is my favorite. Ten years ago, I was called by LAET. Terry Woods said: “Harry, you do nursing-home work, right?” When I said yes, she said, “I’ve got a client here who has sent in everything she needs to do for her nursing license, but the board won’t give it to her. Can you help her?” I do mostly litigation, but I agreed. The client came in; I had a copy of her application to the board. She was a single mom in East Knoxville, with two young sons, maybe 11 and 7 at the time. She was working two jobs, one as a CNA in a nursing home, and she was also waiting tables. She knew the facts of life in East Knoxville were not too good for two young black boys; she knew that if she had a nursing job, she would have a more stable work life and could be home more for them, and not have to work two jobs. I looked over her application; I called the board. She had disclosed in her application that she had a couple of prior minor convictions from years before. One was for indecent exposure and simple possession of marijuana; she was 19 or 20 at the time, twenty years earlier. She’d been on the dance team at Austin East and had gotten involved with someone who got her into work as an exotic dancer. When a strip club where she was working was raided, she was busted; some marijuana was also found in her purse. She also had a more serious, recent, assault-and-battery. When I asked her about that, she replied that her boys’ father had told her that he could not make child-support payments, and said, “By the way, how do you like my new car?” He had driven to see her, to tell her this, in a big, new, shiny car. She got hot and beat him up before he left; he turned around and filed a warrant against her. The board agreed to hold a hearing on her case. I put together a brief to explain her convictions and sent it to the board. A week before we went to Nashville, she told me that she had pulled together some demonstrative evidence: what she crafted was a tri-fold poster board with photos. One panel showed her and her mother; another was of her and her boys at home, and friends from her church; the third had pictures of her waiting tables and of her in her CNA uniform. It was her recent life story. She wanted to better herself and look after her two sons. Before the hearing was to occur, I heard from the board: it had decided to grant her the license. I called her and told her that we didn’t have to go to Nashville, as she was now approved for the nursing license, and I asked her to call me when she had received it. A week or so later, she said, “I have the license here now. Can I come to your office to get back my poster board?” She came to my office at Baker, Donelson; as I gave her back her photo boards, she gave me a big hug and said: “You are my hero.” I hope that all lawyers, someday in their careers, will have a client--paying or not--who will give them a hug and tell them that they love them and that they are their client’s hero.

“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 2019 DICTA 31

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