Practice Tips: Conservatorships: Anticipate and Avoid Problems . . . Page 7 Building for the Future: Advice on Succession Planning: The Time to Start Planning is Today . . . Page 11
A Monthly Publication of the Knoxville Bar Association | August 2021
THE BATTLE OF THE BRANCHES:
TENNESSEE’S NEW “SPECIAL CHANCERY COURTS”
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DICTA
August 2021
In This Issue
Officers of the Knoxville Bar Association
August 2021
COVER STORY 16
The Battle of The Branches: Tennessee’s New “Special Chancery Courts”
CRITICAL FOCUS President Cheryl G. Rice
President Elect Jason H. Long
Treasurer Loretta G. Cravens
Secretary Catherine E. Shuck
Immediate Past President Hanson R. Tipton
KBA Board of Governors Sherri DeCosta Alley Mark A. Castleberry Meagan Collver Jonathan D. Cooper
Daniel L. Ellis Elizabeth B. Ford Rachel P. Hurt Allison Jackson Eric M. Lutton
Michael J. Stanuszek Amanda Tonkin Elizabeth Towe Carlos A. Yunsan
The Knoxville Bar Association Staff
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President’s Message
Phone Wallet Keys
Conservatorships: Anticipate and Avoid Problems
Lawyers’ Supervisory Obligations and Teleworking Tips
Tennessee’s Pregnant Workers Fairness Act?
Remote Practice and the Unauthorized Practice of Law
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Practice Tips
Management Counsel Legal Update
Schooled in Ethics
WISDOM 6
Rosie
I Am Not OK
The Justice Initiative’s Holistic Legal Incubator
Keeping the Doors Open During the Dark Days of COVID
The Time to Start Planning is Today
Haleigh Chastain
Never Mind the Damages
Remember
George Franklin Barber: Architect to America
A Visit to The National Memorial for Peace and Justice in Montgomery, Alabama
Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco
For The Love of Food, I Have Raised A Cook!
The Three Rs and the F-Bomb
Heidi A. Barcus Sarah Booher Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho
In Praise of the Pencil
The People I Met and the Relationships I Developed Along the Way
8 Marsha S. Watson Executive Director
Tammy Sharpe CLE & Sections Coordinator
Jonathan Guess Chandler Fletcher Database Administrator Programs & Communications Coordinator
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
Rebecca Eshbaugh LRIS Assistant
Dicta
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
Matthew R. Lyon Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Eddy Smith Elizabeth Towe
Managing Editor Marsha Watson KBA Executive Director
DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. August 2021
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Volume 49, Issue 7
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.
Outside Your Office Window
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What I Learned About Inclusion and Why It Matters Around the Bar
Stories of COVID-19 & Beyond Building for the Future: Advice on Succession Planning Hello My Name Is
Legal Myth Breakers Boat Builders
Urban Legends Well Read
Barrister Bites
Your Monthly Constitutional Long Winded
Tell Me A Story
COMMON GROUND 4 20 22 22 28 30
Section Notices/Event Calendar Barrister Bullets Change of Addresses Welcome New Members Bench & Bar in the News Pro Bono Project
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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 featuring Chancellor Michael W. Moyers scheduled for September 21. Save the date for the annual CLE program “Mediation: Practice & Ethics Update 2021” scheduled for December 16. If you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777) or Daryl Fansler (546-8030). Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. Save the date for the annual CLE program “Bankruptcy Case Law Update 2021” scheduled for December 14. If you have a program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (2151000). 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. Join the Corporate Counsel Section for their upcoming annual extended CLE program “Corporate Ethics & Update” on August 19. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Marcia Kilby (362-1391) or 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. Save the date for the annual CLE program “Criminal Law Rowdy Roundup 2021” scheduled for November 17. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (5248106) or Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to inhouse and government attorneys. Join the Employment Law Section for the upcoming CLE programs “Workers’ Compensation Update: Navigating the System and Avoiding the Pitfalls” on August 26 and “A Potpourri of Changes: Employment Law Updates under the New Administration” on September 2. 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) or Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics and provides the opportunity to discuss issues relevant to family law practice. Save the date for the annual CLE program “Tennessee Family Law Update 2021” scheduled for December 7. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Jo Ann Lehberger (5393515) or Steve Sharp (971-4040). Government & Public Service Lawyers Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. Join the Government & Public Service Lawyers Section for the upcoming CLE program “An Ethics Update for Government Lawyers” on August 31. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Hon. Suzanne Bauknight (545-4284) 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 2019 will automatically be opted-in to the section. If you would like to get involved in planning Section activities, please contact Section Chairs Campbell Cox (330-2577) or Mary Newton (224-6591). Senior Section The KBA Senior Section has decided to start back up with their lunch meetings, so please save the following dates on your calendar: September 22, October 6 & November 3. The luncheons will be held at Calhoun’s on the River from 11:30 a.m. to 1:00 p.m. The registration price includes an entree, side item, salad, and beverage. More details will be shared when program topics and presenters are confirmed for each date. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307). Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & 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), Mary Miller (934-4000) or Tim Grandchamp (524-1873).
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August 2 3 5 5 9 10 11 11 11 12 18 19 20 26 31
In Chambers with Magistrate Blevins Law Office Tech Committee Judicial Committee Brews for Backpacks Barristers CLE at XUL Professionalism Committee Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Meeting The Legal Impact of COVID on the Senior Population CLE Board of Governors Corporate Counsel Section CLE Tennis & Pickleball Tournament Employment Law Section CLEWorkers Comp Update Government Law Section CLE
September 2 7 8 8 8 8 9 9 13 13 15 21 24 28
Employment Law Section CLE Law Office Tech Committee Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Meeting Bench Bar Celebration CLE Webinar Judicial Committee Professionalism Committee Access to Justice Committee Board of Governors Meeting Past Presidents Dinner Wellness Conference CLE Committee Meeting
Check the KBA Events Calendar at www.knoxbar.org for scheduling updates. August 2021
PRESIDENT’S MESSAGE By: Cheryl G. Rice Egerton, McAfee, Armistead & Davis, P.C.
PHONE WALLET KEYS Laptop, phone, wallet, passport, keys. Maybe you’re not an Adam Sandler fan, and this refrain from one of his original songs is unfamiliar to you. Over the years my husband, Bill, has introduced us all to the work of certain SNL performers, and Sandler is chief among them. He’s got that gift of relaying the irony of common experiences while coming across like the goofy kid next door (even at his current age of 54). “Phone Wallet Keys” is right up there with some of Sandler’s best works. One of my children recently shared a YouTube clip of Sandler performing it with me, and his tonguein-cheek rap commentary on the “necessities” of everyday life resonated. If you can put up with a few four-letter words, I suggest you queue it up on your preferred device. In it, Sandler pays homage to the apparent fact that we cannot go anywhere without our phones these days, not to mention the other “things” (“laptop, charging pack, headphones, Tic Tacs, …”) that have become seemingly indispensable in our modern our lives. Sandler jokes, “Each time I leave my house it’s like I’m camping . . . .” How right he is. A few weeks ago, preparing to go on a long-planned and highly anticipated bucket list vacation with my family, I started making a list of the things we planned to do on the trip and the gear we would need to bring along to make all that happen. Together with my hiking boots, snapback, bathing suit, sunglasses, and clothing options for a variety of weather possibilities were the cell phones, camera, my daughter’s GoPro, Bill’s laptop, my iPad, multiple sets of headphones, memory cards, batteries, charging blocks and cables galore. Throw in some lip balm, a good novel, and a travel guide, and I was Sandler’s walking lost and found. Somehow we were able to fit all that into our carry-on-sized roller bags and reached our destination and my dream spot—a western valley boasting access to several national parks—without incident. I arrived full of confidence that given the time difference between our location and my home here in Knoxville I was going to be able to knock out e-mails, any high priority client projects, administrative tasks, and yes, even this article, during the early morning hours before the kids were up and before our daily plans got underway. I came prepared and had it all figured out. The thing I took for granted in my planning before heading to that relatively remote locale was the existence of consistent WiFi and normal cellular service. Wide-open country meant that sometimes even radio stations were hard to come by as we drove along. Reliable WiFi was somewhat intermittently available, and decent cell phone service was only to be had in town (or in certain unexpected spots in the mountains where not only was I afraid to take my eyes off the trail long enough to check an August 2021
email lest I take a tumble, but also work was not, at that moment, a high priority). When I did receive e-mails, I had long delays in downloading attachments. I couldn’t write this article because I hadn’t considered that I wouldn’t be able to connect to my firm’s server well enough when I had planned to be able to use Word through our VPN or that I might need to download Apple’s word processing software to my iPad instead. And, let’s face it, the rest of my family was enjoying that same time difference I had planned on taking advantage of to do work, meaning our days were starting earlier and, consequently, my anticipated work time was much shorter. As a result, I found myself—initially somewhat by force and ultimately by choice—doing what I had set out to do with my family: taking a vacation. What a blessing. Not only did we have some great laughs and share some wonderful sights; we got away from our daily routine and cares. My youngest was forced to lay down her cell phone and, instead of posting photos on social media and texting with friends back home, she rediscovered her love of reading, completing two novels and starting a third while not missing out on any of the family times. Bill and I rode bikes through the small town where we were staying just for the fun of it. Evenings became the time to play a game, throw a line in the nearby creek, or watch birds as the day came to an end. We were rewarded with beautiful sunsets, unexpected visits from local wildlife, and memories to last a lifetime. To again quote Adam Sandler, despite my initial reluctance in the end it was “a breez-ee” to lay aside those devices. And it became easier by the day. Sitting by the banks of a slowly moving river listening to birdsong and enjoying the peace of a quiet morning, I contemplated the fact that August is upon us. It seems hard to believe the summer is almost over. Vacations and the other standard summertime activities are wrapping up. Students are heading back to class, and some of us are experiencing that heavyhearted feeling that is sometimes there when a good time comes to an end. I hope that you have taken an opportunity during the somewhat slower pace of summer to get away, too, even if for only a few hours. And, if you haven’t yet, I hope you will make time soon to break free from your routine and enjoy a bit of respite. We all need to be recharged, and whether we do it by spending a few hours reading a good book, relaxing in a local park, or by taking a longer trip to somewhere farther away matters not. The important thing is that we do it—for ourselves and knowing that we, our loved ones, our colleagues and our clients will all benefit from us doing so. Make time to pare life down to the essentials, whether that be phone, wallet, and keys, or something else, and take it easy … you deserve it.
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OUTSIDE YOUR OFFICE WINDOW By: Robbie Pryor Pryor, Priest & Harber
ROSIE Dog stories resonate for a reason. This story will put a cap on dog stories for me (I promise), and we will be able to move on to other subjects together…If you are not a dog person, I’m sorry. You can wait for the next column, but it won’t be about a cat. [Note: I like cats. But I’m allergic]. There is a farm in Mount Pleasant, Tennessee where European White Golden Retrievers are bred. It is a slick operation, with a website that sucks you into the puppy world. In the wake of our 12-year-old Golden’s passing in January, the dilemma was that encountered by all pet owners - to get another dog or not. As with many big decisions, I left my wife to lead. I knew it wouldn’t take long. If you’ve owned the right dog, you understand. We began with dabbling. We had a great deal of fun getting on the Internet and social media looking at breeders and puppies. We talked of going back to one of the Golden Retriever rescue organizations. We were just having fun. No commitment. Then one afternoon, while Nancy was looking at the slick website, she came across a video of Chloe, the Golden who would be bred to Ben in middle Tennessee. Nancy was struck dumb by the look in her eyes. “It is Sophie,” she said. My wife doesn’t claim to be in touch with supernatural, but she does seem to have a knack for timing and an uncanny recognition of things others miss - things like the living spirit of our former pets in the eyes of other animals. Wow, what I just wrote looks so silly on paper, but, again, if you’ve owned the right dog…So, I put a deposit down in February for a female. I was number 7 in line for a girl born to two separate litters, but we were the only ones interested in Chloe’s puppies, specifically. I didn’t have an ounce of sticker shock, even in light of the fact I’ve paid less for a car. It is even more surprising given the fact that Sophie and Hope, our previous Goldens, had been free. On April 12, seven puppies (4 girls and 3 boys) were born to Chloe. Due to the size of the other litter, we had our choice of Chloe’s girls. Each of the puppies had colored ribbons around their neck and were given “puppy names,” like Tulip, Daisy, Violet and Rose. We could track videos and photos online for the many weeks they nursed and then trained under the breeder’s guiding hands. I studied those videos like detectives review cctv videos on Forensic Files and Dateline. With each new photo or video, we analyzed behavior and cuteness to fit into some unspoken algorithm each of us held in our minds. We would have a choice, and we measured the decision as if the choice between three beautiful dogs would be life or death. The algorithm and prep resulted in a choice of Rose (the red ribbon). June 28 was the day of pickup. As
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we approached the farm, my wife leaned up on the edge of her seat, like a little girl getting ready to ride It’s a Small World at Disney for the first time. Rosie, the name eventually given after consultation with our children (mostly the girls), was waiting for us. (I wanted to name her Jolene, but I never win in these decisions). There would be no buyers remorse. As H.I. McDonnough (played by Nicolas Cage) said in Raising Arizona - “I think we got the best one.” Yes, the puppy days are difficult. It reminds me of when our children were babies and when Sophie was a puppy - a whole lot of urine and chewing and crying. But isn’t that the point? Empty nesters, especially ones like us who have thrived on the chaos for so many years, seem to circle back around to chaos. We are not scared to invite more love into our lives, even at the risk of having our heart broken once again. Isn’t that the game? If you give yourself over, give your heart to something, you risk having it broken. The odds are that Rosie will give us 10 to 12 years, during which time she will become an integral part of our lives and the subject of a great deal of love, a love that is surely magnified by the absence of children in our home. Despite knowing her departure will kill us, we will become “those people.” We will be the old people who talk of their dog as if it is human. I have already become the man walking behind the small puppy and telling her what a good girl she is for crapping on the sidewalk and then picking it up with only a grocery bag separating my hand from her mess. What? Who am I? I’m a trial lawyer for the love of Pete! I find myself talking in a voice once reserved only for my children when they were infants and toddlers, and I really don’t care who hears it. What is happening? I’m preparing for a deposition and smell like dog urine, my arms look like I work part time as a scratching post, and Rosie is ripping up my favorite Ugg slippers (I love those things as much as I love anything that doesn’t breathe). I’ve pulled up my rugs, covered my O.P. Jenkins couch with towels. I get home and my living room looks like a daycare center with a crate in it, my wife playing the part of the overwhelmed kindergarten teacher at 3:00 p.m on a Wednesday. Words heard only when the kids were little fill our house - “You have to take over” - “Get a towel!” - “She’s awake” - “No!!!” I hadn’t realized we were missing so much. We are alive again! When you are running a puppy to the door, it is easy to miss the bigger picture. I’m always in search of it and an understanding of what it all means. I may never have a clear answer, but I do know, for me, it includes squeaky toys and puppy breath.
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August 2021
PRACTICE TIPS By: Samantha Parris Law Office of Samantha Parris
CONSERVATORSHIPS: ANTICIPATE AND AVOID PROBLEMS Introduction Conservatorships are a hot topic in the public zeitgeist. The Netflix film I Care a Lot and the news coverage of the recent Britney Spears conservatorship hearings have brought the sometimes dark side of conservatorships to the foreground. While no KBA member would ever engage in the scandalous dealings from I Care a Lot or the potentially troubling behavior alleged by Britney Spears, it is crucial to watch the details of your conservatorships to avoid any potential pitfalls. Emergency Conservatorship Deadlines If an emergency conservatorship is required to avoid substantial harm to the respondent, it is important to remember the time limits and deadlines for notice and hearings. An emergency conservatorship can last a maximum of 60 days.1 If you need a conservatorship to continue past that time period, you will need to start the proceedings for a regular conservatorship as well. If the emergency conservatorship is granted without notice to the respondent, notice must be given within 48 hours.2 Additionally, a hearing must be held within 5 days of appointing an emergency conservator.3 It is important to note that these deadlines are modified by the auxiliary verb shall, not may, in the statute. These deadlines cannot be waived by the court and are mandatory.4 Who Can Serve – Residency Requirements Tucked away in the miscellaneous provisions of the statutes are limitations on non-resident fiduciaries, which limit who can serve as conservator. Only Tennessee residents can serve as the conservator for both the person and property in a Tennessee conservatorship.5 An individual non-resident can serve as conservator for the person, but not as conservator for the property.6 This presents a problem when all the relatives of someone needing a conservatorship live in another state or the only person willing to serve lives in another state. However, if an individual Tennessee resident or a corporation authorized to do business in Tennessee that also maintains an office in Tennessee is willing to serve as co-conservator with the non-resident, that will satisfy the residency requirement.7 This is not a problem if the respondent does not have any property. For instance, in cases where the respondent has de minimis personal property, no other assets, and either no income or only income from social security, a conservator can be appointed over only the person. However, if the respondent has assets, a person living in another state is not an appropriate person to serve as sole conservator over the person and property. Bond Requirements With some exceptions, if the respondent has property, a bond will be required.8 For an individual conservator, bond is usually required unless the respondent’s non-real property is less than $10,000.00 and the court finds the benefit to the respondent by saving the expense outweighs the risks incident to the absence of a bond.9 This requirement can be waived if the property is deposited with the court, or if the property is placed with a financial institution and the financial institution agrees in a writing filed with the court that the conservator will not be permitted to withdraw the principal without court approval.10 This requirement can also be waived if the document naming the suggested or preferred fiduciary excuses the fiduciary from posting bond.11 Unless such a document exists, the conservator either needs a bond or is stuck with solutions that tie up the respondent’s assets in a way that will make it difficult to pay the August 2021
respondent’s expenses. Accounting Requirements You are probably aware that a conservator over the property of the respondent is required to provide the court with an annual accounting.12 In addition, a new conservator over the property is required to provide the first accounting within 30 days after the first six months of the conservatorship.13 If your conservatorship is in Knox County Chancery Court, the court has helpful instructions for accountings on their website in the forms section.14 Medical Report A sworn written report must be filled out and submitted by a medical professional either with the petition for conservatorship or by court order.15 Two potential pitfalls with this report are when the respondent was last examined by the medical professional and what type of medical professional can sign the report. The examination by the medical professional has to occur not more than ninety (90) days prior to the filing of the petition.16 The medical professional must be a physician or, where appropriate, a psychologist or senior psychological examiner.17 Note that this does not permit the examination or medical report to be done by a nurse practitioner. As many more people see a nurse practitioner as their primary care provider, this can present a roadblock for the medical report. Instructions to Conservators If you are representing the conservator, it is good practice to not only give your client instructions on their duties when you speak with them, but also in writing. This serves both the purpose of giving your client a resource to refer back to as they perform their duties, and it documents that you have adequately advised your client about their responsibilities. If you have been practicing any length of time, you have had clients refuse to follow your advice and create difficulties for themselves. You want to make sure that if the client does not file an accounting, or comingles their individual funds with the respondent’s funds, that it is clear they did so against your advice. Knox County Chancery Court has a good basic set of instructions for conservators on their website in the forms section.18 You can utilize those or use them as a starting point to develop your own instructions. Conclusion Being aware of the potential obstacles will keep your conservatorships moving through the court smoothly and efficiently. T.C.A. § 34-1-132(a). T.C.A. § 34-1-132(b). ³ Id. 4 T.C.A. § 34-1-132(e). 5 T.C.A. § 35-50-107(a)(2)(F). 6 Id. 7 T.C.A. § 35-50-107(a)(1). 8 T.C.A. § 34-1-105(a)(1). 9 T.C.A. § 34-1-105(b)(2). 10 T.C.A. § 34-1-105(b)(4)-(5). 11 T.C.A. § 34-1-105(b)(3). 12 T.C.A. § 34-1-111(b). 13 T.C.A. § 34-1-111(a). 14 https://www.knoxcounty.org/chancery/forms.php. 15 T.C.A. § 34-3-105(a). 16 Id. 17 Id. 18 https://www.knoxcounty.org/chancery/forms.php. 1 2
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W H AT I L E A R N E D A B O U T I N C LU S I O N A N D W H Y I T M AT T E R S By: Ursula Bailey Law Office of Ursula Bailey
I AM NOT OK When asked to write an article for this series, I was reminded of some thoughts I wrote immediately after the release of the George Floyd video. I thought I would take excerpts from that piece. While not directly about inclusion, I thought the point of view might provide some insight. I hope that it gives some insight into how some people were feeling after seeing the video. When asked if I was ok, instead of the obligatory “yes,” today, I said “no,” and then I wept. I wept because I am angry, hurt, and sad, but I cannot find the words. I am angry, hurt, sad, because yet another black man is dead because he was black and the response of some people is “yes, but . . .”. But, what? What else do you need to know? What could have possibly happened before the filmed events of George Floyd’s death that would make his killing ok? Why did it take an unassailable video for society to finally accept that this is the treatment of black people in America? The treatment of Black Americans in this country is unique. Our fight for equality is different than that of other minorities, most of whom came here by choice. We did not come to America by choice. We were kidnapped, chained, and shipped as cargo. We were treated as sub-human from the moment our feet reached American soil. That treatment led to hatred that still persists today. I am angry because you look to me to make yourself feel better; to assure that you are not part of the culture that has hated and objectified Black Americans, while benefitting from their presence. You need me to make you feel better about how you really see Black Americans, because you now question your own actions and attitudes. Your question is your answer. I’m angry that you have just realized (or acknowledged) that racial inequality and discrimination still exists and is widespread. I am sad and angry that it took the nation being plummeted into civic unrest by yet another senseless killing of a black man for you to get it. I am distrustful that this time you have actually gotten it. I am angry, because when I go to court, I feel alone. I cannot imagine how my clients feel. How can my clients feel that they are receiving a fair trial when the only person in the courtroom that looks like them is their lawyer? I am angry that I see black defendants getting harsher sentences than their white counterparts with the same, or lesser charges; or black juveniles transferred to adult court at a higher rate than white juveniles. I am angry because I am assumed to be a defendant or their family member, rarely an attorney; and because I am asked for identification to be recognized as a lawyer in courthouses where I practice regularly. One recent example: “Why are you here?” “I’m here on James Doe’s case.” “Are you his girlfriend?”
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“No. I represent him.” “You’re a lawyer?” “Yes.” “Are you with a law firm?” “Yes.” “What firm?” “Law Office of Ursula Bailey” “What is your name?” “Ursula Bailey.” “Can I see your bar card and photo id?” [Thorough check] “Oh, it is not personal, I just have to check everyone.” [There was no check of the seven lawyers who walked past as this was occurring.] I am angry that you say, “Ursula, I didn’t know.” You may not have known my story, but you knew about racism and how society treats black people. You knew that there were no blacks on your juries, in your law firms, or on the boards on which you sit. I am angry that you are just now getting angry. Where was your anger, outrage, and where were YOU before the release of the video, while black people were being constantly degraded, or being killed for going to the store? It is easy to be angry now. The George Floyd video speaks for itself. But why weren’t the deaths of other black people at the hands of racist, violent individuals enough? Why did it take a man suffering a slow nine-minute death to get your attention? I am angry at your newly found anger and hurt and saddened by your ambivalence before. I am sad that another black man has been killed by the people who are charged to “protect and serve.” I am sad for the parents who hold their breaths every time their black sons venture away from home; not that we are safe in our homes. I am sad that black people have to fear for their safety even when doing the most mundane things, like walking. Some have asked, “what can I do?” You can remember this every day, and be vigilant for the right reasons not just to feel good about yourselves, make a social statement, or win a case. Performative activism is not actual activism. Do more than argue about racial fairness only when it benefits your case. We are black all the time; I am black all the time. The disproportionate treatment that you highlight in your case is not limited to your case. It is what we live every day; what I live every day. If you choose only to make racial inequality a priority, and parade it out in front of a judge or a jury when you think it may help your case, then you are belittling and hijacking my pain to make your point. That is not ok. Do more. Do better. So as stated. I am a lot of things right now: angry, hurt, sad, distrustful. But I am not ok.
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August 2021
AROUND THE BAR By: Mark Stephens Executive Director, The Justice Initiative
THE JUSTICE INITIATIVE’S HOLISTIC LEGAL INCUBATOR I think we would all agree that the transition from law student to practicing attorney is significant. For me - and probably many like me - the transition was difficult. Fortunately, I had caring mentors to guide and advise me in my professional development. Lawyers such as Bob Ritchie, Ray Cate, Doug Trant and Don Coffey (and others) all generously gave of their time and talent to help me mature in the practice of law. This past April marked my forty-first year of practice. I’m thankful for what the profession has offered me, and I frequently find myself thinking of those four men and wonder how different my career might have been had they not taken an interest in my professional development.
life goals. Social work differs from other helping professions in the fact that it utilizes a person-in-environment approach to practice. This means that social workers look at a person in their environmental context, encompassing all the different structures and systems enacting on an individual’s life- whether that be family systems, community structures or governmental systems and policies. Social Work practice requires knowledge of human development and behavior; social, economic, and cultural institutions; and how all these factors intersect with one another to contribute to a client’s life circumstances. Therefore, social workers are imperative to implementing a holistic, clientcentered approach.
A few years ago, I was introduced to the concept of a legal incubator. The concept is a short (eighteen to twenty-four month) program that allows newly licensed attorneys who want to start their own practice to do so while learning from - and being mentored by - colleagues. I started a 501(c)(3) - The Justice Initiative - and applied for a grant from the Tennessee Bar Foundation to begin what we call the Holistic Legal Incubator (HLI). In short, the idea was to provide new lawyers with this opportunity while at the same time attempt to replicate and incorporate the successful representation model practiced at the Community Law Office (client-centered, holistic representation) in a private practice setting.
Using a client-centered approach, the individual’s legal problems, as well as personal and environmental issues, are addressed, a plan of action is developed, and together the client and his legal team begin the process of implementing the plan for change. In the criminal defense context, a client-centered, holistic model of representation, combining quality legal representation and comprehensive social services, has been shown to reduce criminal activity and recidivism by offering individuals solutions to debilitating problems in clients’ lives.
While many are familiar with the concepts of client-centered, holistic representation, for those who aren’t, “client-centered representation,” in short, refers to the power, ability and right of the client to decide what direction s/he wants to take in their case once given the information s/he needs. It means that the lawyer attempts to understand the client’s situation from the client’s perspective, respecting the client’s right to choose the course to pursue. “Holistic representation” embodies the belief that addressing only a client’s criminal behavior, and not the consequences of poverty and other risk factors that lead to criminal activity, is shortsighted. Holistic representation can be characterized as an ecological perspective, recognizing the interaction of legal representation with factors ranging from individual conditions to socio-economic structure and environmental circumstances. Holistic representation includes, at a minimum, lawyers partnering with social service providers (social workers) to address both the legal issues confronting the client, as well as those ‘other’ factors that serve as barriers to the client’s functioning in the community and achieving August 2021
Greyson Dulaney, a master’s level social worker, serves as the program director for the HLI. In addition, the HLI has both masters and bachelor level students working with participating attorneys providing the ecological perspective to the client’s case. The Holistic Legal Incubator operates out of what I refer to as The Ritchie Building at 606 W. Main Street, Suite 100. The HLI provides new lawyers an opportunity to establish a practice while learning from practicing attorneys, marketing professionals, tax practitioners, judges, social workers, bankers, investment and insurance counselors, and more through weekly conversations. If you have volunteered for one (or more) of these sessions, thank you. And thank you to the Tennessee Bar Foundation for the generous grant that allows us to operate this program. If you would like to get involved in this program, feel free to call me (865-224-8111) or Greyson (865-309-5571). We start a new cohort every September. If you are a newly licensed attorney in Knoxville and would like to know more about HLI, feel free to call me or Greyson - or feel free to stop by the office - and we’ll be glad to talk with you.
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STORIES OF COVID-19 AND BEYOND By: Arrin “A.Z.” Zadeh Partner, Oberman and Rice Law Firm
KEEPING THE DOORS OPEN DURING THE DARK DAYS OF COVID When I was asked to write an article about a criminal defense law firm’s experiences during the horrible COVID pandemic, a lot of different thoughts entered my mind once I sat down to start the process. Some of these thoughts were of the paralyzing fear of the COVID pandemic roaring through our community—not just the legal community, but hitting the citizens of Knox County with gut punch after gut punch. I recall seeing the numbers of the sick rising at a supersonic rate. My thoughts then trickle back to my firm and how we handled the situation. Even though it was almost one and a half years ago when the pandemic really picked up steam, it really feels like just yesterday we started the preparations for navigating our law firm during a pandemic and attempting to overcome the many ever-changing obstacles. During the pandemic, the issues were not isolated to the deadly virus—making sure we operated our law firm in a manner to keep our partners and staff safe and healthy, but included trying to do our best to keep the doors to our firm open to help the many people in need of our services. I recall being in a meeting with my law partners, Steve and Sara, and the conversation turned to how we were going to be able to manage our firm in the event of a county-wide shut down due to the virus. In case you lived under a rock, for several months (at different points) our community and profession faced shutdowns. As most readers of this article can attest, in conference rooms across Knox County and across the country, lawyers gathered to discuss strategies on how to protect the health of the lawyers, staff, and family, while still keeping the law firm financially intact. At Oberman and Rice, we had to quickly learn how to answer phone calls remotely, have our IT team help the lawyers and staff set up for home consultations via Zoom or Microsoft teams, ensure that communication with existing clients (and future clients) was effective, and of course, try to ensure all of the day to day activities of our law firm were being handled with the health and security of our employees at the top of the list. For example, we were able to work with a rotation of lawyers and staff being at the office at certain times to help avoid any potential spread of the virus. The rotation also ensured that our entire staff would not be quarantined should a single member of the firm contract the virus. Masks were constantly required, and they still are required if the potential client has not been vaccinated. As a firm, we all had to adapt to the new culture of working off site while still remembering that effective and timely communication with our clients
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still took precedence. In other words, the pandemic really ushered in a new age of “how-to” work and effectively represent clients through remote and onsite techniques. Furthermore, because of the COVID pandemic, life in the courthouse also changed. For those of you who regularly practice in Knox County, the big plastic plexiglass barriers that have been installed to help prevent the spread of the virus made the court rooms look like the inside of a hockey rink. The barriers, however, served a purpose, as did the mandate for masks to be worn in all court rooms. Additionally, courts now handle more situations with a video feed instead of in-person interactions. As our law firm was rolling with the punches, so was the court system and all of the employees who help keep the legal system oiled and chugging along. If you step back and think about it, it is truly impressive how law firms and the court system adapted and remained open to the public (for the most part) while trying to ensure the due process rights of the citizens of Knox County. In a way, the pandemic really forced law firms to jump ahead in how they viewed technology, and I believe really helped foster a more efficient means of running a law firm. I know from our experience at Oberman and Rice that we still take advantage of Zoom meetings with potential clients. We still incorporate features of our “remote” tools to help utilize our effectiveness, representation and communication abilities with our clients. And we have really formed an even more tight familial bond going through the trials and tribulations of the pandemic. For those who know me, I tend to be a bit cliché at times. I feel that the pandemic really brought private lawyers/law firms together because everyone went through the same pain, fears, and struggles… yet, persevered through all of it and in my opinion, all of us are much stronger for staying the course. With the light (hopefully) at the end of the tunnel and restrictions slowly starting to be lifted, most people agree that criminal defense firms (as well as many other businesses in the area) will see things slowly get back to normal. So long as we can stay vigilant against the variant strains, things seem to finally be looking up. From my experience at the Oberman and Rice Law Firm, with a little planning, and being open to learning new technologies (and staying positive), we were able to get through that horrible blip that was the COVID pandemic and we look forward to a new phase.
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BUILDING FOR THE FUTURE: ADVICE ON SUCCESSION PLANNING By: Eddy R. Smith Kennerly, Montgomery & Finley, P.C.
THE TIME TO START PLANNING IS TODAY “I was fifty-one, co-parenting a teenager, and managing a busy practice when I began having serious health problems. It is never too early to plan for disability, retirement or succession!” – Monica Franklin When life has other plans. Most of us have at least a vague idea of how we would like our future to play out, including when and how we will stop practicing law and the things we would like to do in retirement. Unfortunately, as retired Knoxville elder lawyer Monica Franklin knows, things often don’t go as planned. In early 2015, I started having health problems and, as my condition deteriorated, [colleague] Glen [Kyle] stepped up and began to take on more responsibilities. I received a diagnosis in October 2016 and, at that point, I began to arrange my affairs for an early retirement. As I mentioned previously, the demographics regarding upcoming lawyer transition are concerning, as almost half of KBA members are age 55 and older and there are more than 1,000 solo lawyers in Knox County. A recent KBA poll1 supported the concern. Of the respondents: • • • • •
55% practice alone. 45% are age 60 or older. 57% plan to stop practicing within 10 years. Only 35% reported that their clients know another attorney in the firm. Only 15% have a written succession plan with an attorney outside their firm to take responsibility for client files.
The possibility of early health issues for lawyers or their loved ones only intensifies the concerns. Now what? Once a lawyer faces the certain end of their practice, the importance of a plan to transition the practice and clients becomes crystal clear. Says Monica: Succession planning was on my “things to do” list for years prior to life forcing me to actually do it. I wish I could say that I had a written succession plan from the very beginning of my practice, but unfortunately, I did not. . . . In 2017, we worked to transition my clients to Glen. It was a painful process for many reasons, but he was a trooper and never complained that his workload was quickly doubling. We read everything we could find on succession planning. The August 2021
ABA has excellent resource materials.2 In Monica’s case, she was able to make what could have been a disaster manageable because she identified a trustworthy colleague to assume responsibility for her clients, files, and practice. Even better, Monica reports she is happy and living a good life in retirement.3 Nonetheless, Monica recognizes that the process would have been easier if begun in advance. Her advice to lawyers thinking about retirement, disability and succession planning is to start with a personal retirement plan, including a will, power of attorney, advance directive for health care, life insurance, retirement savings and investments, disability insurance, and long-term care insurance. In addition, the lawyer should draft a succession plan that she reviews every five years or when circumstances change. Solo and small firm practitioners need to identify one or more lawyer colleagues (inside or outside the firm) who will step into the gap created by a retired, disabled, or deceased lawyer. KBA offers resources to help you. Remember the KBA’s handbook on practice succession entitled, “Planning Ahead: A Guide to Protecting Your Clients’ Interests in the Event of Your Disability or Death,” a how-to on creating and implementing a comprehensive plan to leave law practice well. The guide covers client trust accounts, file retention and destruction, and special considerations related to the death of a sole practitioner.4 Solo practitioners should review closely the discussion and forms regarding an agreement with a receiver/assisting attorney to wrap up the attorney’s practice. The KBA also has a course, available free to KBA members who do not need CLE credit, called “Succession is not a dirty word – Plan now or pay later.”5 Denise Moretz and Sandy Garrett recorded the session “to make sure your law firm and your clients will be in good hands in your absence.” Look for more stories in future installments. In the meantime, if you do not have in-house colleagues who can absorb your clients and practice and you’ve been waiting for the right time to start planning for your professional succession, that day is today.
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127 of the KBA members polled (those practicing in firms with one to five lawyers) responded to the May survey. It is certainly possible that those who have a favorable view of their own succession planning were less motivated to respond. https://www.americanbar.org/groups/professional_responsibility/resources/ lawyersintransition/successionplanning/. Monica is the current Chair of Sharing Experiences Together, Inc., a nonprofit providing community for those with mild cognitive impairment. www. SharingExperiencesTogether.org. Available at https://www.knoxbar.org/?pg=SuccessionPlanning. Available on the KBA website at https://www.knoxbar. org/?pg=semwebCatalog&panel=showSWOD&seminarid=13438. As part of the KBA Best Educated Bar promotion, for the free option use the coupon code BESTEDUCATED at checkout.
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August 2021
MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Dacey Romberg UCOR, Associate General Counsel
LAWYERS’ SUPERVISORY OBLIGATIONS AND TELEWORKING TIPS With the rise in vaccination rates, some firms are returning to the office. After more than a year of teleworking, many employers are instead reconsidering their structure and implementing more flexible telework policies. Wherever you are working (in an office or at home in your pajamas), we can all agree that COVID has changed how we work. One thing that should not change is lawyers’ supervision of their associates and staff. “Out of sight, out of mind” is not an advisable approach. Tennessee’s Rules of Professional Conduct require lawyers to supervise associates and non-lawyer staff. Rule 5.1 mandates that partners and lawyers in managerial roles must make “reasonable efforts” to ensure all lawyers in the firm conform to the Rules of Professional Conduct.1 Similarly, lawyers must make “reasonable efforts” to confirm that non-lawyers’ conduct complies with the lawyers’ professional obligations.2 In fact, a supervising lawyer can be responsible for associates’ and non-lawyers’ conduct if he or she ordered the conduct, knew of the conduct and ratified it, or knew of the conduct at a time when it could have been stopped but failed to do so.3 Therefore, lawyers should ensure that associates and non-lawyers who they supervise are adhering to the duties of confidentiality,4 competence,5 and diligence.6 Make sure your employees have a secure place to keep confidential documents and have a way to lock their computer screens when they step away from their home office. Teleworking employees should be instructed to have confidential phone calls in a private area of their homes. Additionally, check in frequently enough to make sure deadlines are being met. Finally, require associates and non-lawyers to keep up with training and accreditations. In addition to considering how telework impacts supervisory responsibilities under the Rules of Professional Conduct, lawyers and firm managers should establish teleworking practices that comply with the Fair Labor Standards Act (FLSA). Under the FLSA, employers must pay non-exempt (generally, this means non-salaried or hourly) employees for all time that they work and time and a half rates for hours worked over forty in a week. Employers must pay employees for time it requested the employee to work and time it “suffered or permitted” the employee to work.7 If the employer knows or has reason to believe that work was performed, it must pay for that time. Courts consider whether the employer should have learned about unapproved worked time through reasonable diligence.8 Having a reasonable reporting procedure for non-scheduled time and compensating employees for all reported hours (even those outside of the employee’s normal schedule) can establish reasonable diligence.9 This reporting system may be undermined if employers prevent or discourage employees from reporting their true time.10 If a reasonable reporting system exists and employees are encouraged to accurately report their time, employers do not have to investigate further to discover unreported hours.11
Employers should consider the following time-reporting measures: •
Establish a written policy requiring all employees to report hours worked at the end of each day;
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Include in the policy a prohibition on unauthorized overtime;
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Monitor compliance with the overtime policy and discipline employees for violations (still pay the overtime, at least for the first infraction);
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Use a software that allows employees to remotely submit their hours;
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Require teleworkers to sign an acknowledgment that they will accurately report all their time on this software; and
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Treat time that teleworkers spend driving into the office as worked time.
Finally, employers should consider the safety of their employees’ home offices. The Occupational Safety and Health Act of 1970 requires employers to provide a workplace free from recognized, serious hazards; record work-related injuries and illnesses; and comply with OSHA standards and regulations.12 Although home offices are considered “workplaces”, the Department of Labor has taken the position that it will not inspect home offices, expect employers to inspect home offices, or hold employers liable for home offices.13 However, teleworking employees’ work-related injuries or illnesses may have to be reported on the OSHA300 log.14 Additionally, home office injuries may qualify for workers’ compensation benefits. Because of these risks, employers should encourage employees to keep their home offices safe. Employers can provide resources for ergonomic work stations, require fire and electrical safety precautions (smoke detectors, clear access to exits, surge protectors, etc.), and create first aid kits for employees to have in their homes. 3 4 5 6 7 8 9 1 2
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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 Caitlyn Elam at 546-4646. August 2021
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August 2021
L E G A L U P DAT E By: Dacey Romberg UCOR, Associate General Counsel
TENNESSEE’S PREGNANT WORKERS FAIRNESS ACT Last summer the Tennessee legislature passed new protections for employees who are pregnant, recovering from childbirth, or needing to express breast milk at work. The Tennessee Pregnant Workers Fairness Act (PWFA) was signed into law on June 22, 2020, and became effective on October 1, 2020.1 Tennessee now joins thirty states—including neighboring Kentucky, Virginia, North Carolina, and South Carolina—and five localities with similar protections for pregnant workers.2 The law requires every employer with at least fifteen employees to make reasonable accommodations for an employee’s or prospective employee’s medical needs arising from pregnancy, childbirth, or related medical conditions, unless such accommodation would impose an undue hardship on business operations.3 Undue hardship exists when an accommodation would require “significant difficulty or expense”—mirroring the definition of undue hardship under the Americans with Disabilities Act (ADA).4 Unlike the ADA though, employees do not have to be able to perform the essential functions of their job to be protected by the PWFA. The PWFA provides a list of potential accommodations: 1. Making existing facilities used by employees readily accessible and usable; 2. Providing more frequent, longer, or flexible breaks; 3. Providing a private place, other than a bathroom stall, for the purpose of expressing milk; 4. Modifying food or drink policy; 5. Providing modified seating or allowing the employee to sit more frequently if the job requires standing; 6. Providing assistance with manual labor and limits on lifting; 7. Authorizing a temporary transfer to a vacant position; 8. Providing job restructuring or light duty, if available; 9. Acquiring or modifying equipment, devices, or an employee’s workstation; 10. Modifying work schedules; and 11. Allowing flexible scheduling for prenatal doctors’ appointments.5 Employers should engage in a good faith interactive process as soon as the employee asks for an accommodation. However, an employer can request medical certification from a treating physician or medical provider if the employer does so for other employees needing accommodations i.e. employers should not have stricter processes for pregnancy- or childbirth-related accommodations than for accommodations related to other disabilities.6 Additionally, employers may not take adverse action against pregnant workers who request or use reasonable accommodations.7 The PWFA does include a list of actions covered employers do not have to take if the employer would not provide these items for non-pregnant employees:
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1. Hire new employees that the employer would not have otherwise hired; 2. Discharge an employee, transfer another employee with more seniority, or promote another employee who is not qualified to perform the new job; 3. Create a new position, including a light duty position for the pregnant employee, unless a light duty position would be provided for another equivalent employee; 4. Compensate the pregnant employee for more frequent or longer break periods, unless the pregnant employee uses a break period that would usually be compensated; or 5. Build or create a permanent, dedicated space for expressing milk.8 Employers should be aware that Section 7 of the Fair Labor Standards Act does require covered employers to provide a place, other than a bathroom, that is shielded from view and free from intrusion in which the employee can take reasonable breaks to express milk for one year after the birth of the employee’s child.9 The Tennessee Commissioner of Labor and Workforce Development will issue regulations and enforce the new law.10 Claimants can file suit in chancery or circuit court and seek back pay, compensatory damages, prejudgment interest, and attorneys’ fees.11 Claimants have only one year from the date of termination or adverse action to file a claim.12 The PWFA fills a gap in federal workplace laws. First, the Pregnancy Discrimination Act, a 1978 amendment to Title VII of the Civil Rights Act of 1964, prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions.13 However, this requires employers to offer reasonable accommodations to pregnant workers only if the employer has offered accommodations for non-pregnant workers who are similarly able or unable to work. Second, the Americans with Disabilities Act may not mandate accommodations for all pregnant employees. The ADA only requires employers to accommodate those with a disability, defined as a physical or mental impairment that substantially limits one or more major life activities.14 While some pregnancy-related conditions like anemia, depression, gestational diabetes, preeclampsia, or sciatica may constitute a disability, employees with complication-free pregnancies would not be covered by the ADA. Employers and their counsel should make changes to existing policies and procedures to comply with the PWFA and watch for developing case law under the new statute. Tenn. Code Ann. § 50-10-101. https://www.abetterbalance.org/resources/pregnant-worker-fairness-legislativesuccesses/. 3 Tenn. Code Ann. § 50-10-102 & 103. 4 Tenn. Code Ann. § 50-10-102(4), compare 42 U.S.C. § 12111(10)(A). 5 Tenn. Code Ann. § 50-10-102(3). 6 Tenn. Code Ann. § 50-10-103(c). 7 Tenn. Code Ann. § 50-10-103(b)(3). 8 Tenn. Code Ann. § 50-10-103(a)(1)-(5). 9 29 U.S.C. § 207(r). 10 Tenn. Code Ann. § 50-10-104(a). 11 Tenn. Code Ann. § 50-10-104(b). 12 Tenn. Code Ann. § 50-10-104(c). 13 42 U.S.C. § 2000e(k). 14 42 U.S.C. § 12102(1)(A). 1 2
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THE BATTLE OF THE BRANCHES:
TENNESSEE’S NEW “SPECIAL CHANCERY COURTS” What happens when the legislature doesn’t like the judiciary’s interpretation of a statute? Sometimes, nothing. But sometimes, the legislature passes a law that legislatively overrules the offending judicial ruling. The Lilly Ledbetter Fair Pay Act of 2009 is one example.1 Even when the judicial branch declares a statute unconstitutional, the legislature usually tweaks the offending statute in an effort to address the constitutional deficiencies. For example, when the U.S. Supreme Court declared the death penalty unconstitutional in 1972 and then reinstated it four years later, state legislatures rapidly rewrote their statutes to comply with the Court’s requirements. In Tennessee, however, the General Assembly has found a novel way to express its disagreement with recent judicial rulings: create a special judicial body to consider constitutional challenges to statutes involving state defendants. On May 26, 2021, Governor Bill Lee signed into law Public Chapter No. 566, which set forth a process for establishing “Special Chancery Courts” that became effective July 1.2 Because of their unorthodox nature and the fact that the legislation establishing them went through several iterations prior to passage, Tennessee lawyers are asking, quite reasonably, how the new courts are structured and what exactly they will do. Impetus for the Legislation The genesis of the Special Chancery Courts can be found in a couple of recent decisions by courts in Davidson County. In 2019, the General Assembly passed legislation creating an education savings account, or “school voucher” program. Under the program, individual students could choose to receive their pro rata share of the tax dollars that would otherwise be paid to their public school and use these funds to pay tuition at private schools.3 Notably, the school voucher program applied only to students in Davidson and Shelby Counties. The statute was immediately challenged by those two counties as violating the “home rule” provision of the Tennessee Constitution, which provides: any act of the General Assembly private or local in form or effect applicable to a particular county or municipality either in its governmental or proprietary capacity shall be void and of no effect unless the act by its terms either requires the approval by a two-thirds vote of the local legislative body of the municipality or county, or requires approval in an election by a majority of those voting in said election in the municipality or county affected.4 After an expedited hearing, on May 14, 2020, Davidson County Chancellor Anne C. Martin held the school voucher program
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unconstitutional and granted an interlocutory appeal to the Tennessee Court of Appeals.5 On September 29, 2020, the Court of Appeals affirmed.6 In another judicial outcome that displeased some members of the General Assembly’s majority party, on June 4, 2020, Davidson County Chancellor Ellen Hobbs Lyle ruled that Tennessee must allow all eligible voters to vote by absentee ballot due to the COVID-19 pandemic. This ruling expanded the statutory scope of absentee voting, which required that the voter meet one of 14 requirements. Chancellor Lyle held that enforcing these requirements during the pandemic constituted “an unreasonable burden on the fundamental right to vote guaranteed by the Tennessee Constitution.”7 The Tennessee Supreme Court would later vacate the temporary injunction that had been issued by Chancellor Lyle.8 Stung by these decisions, the General Assembly initiated three separate legislative initiatives during its 2021 session that were designed to insulate its statutes from judicial meddling. First was a bill allowing the state an interlocutory appeal as of right from a trial court’s decision holding a statute unconstitutional that “[g]rants, continues, or modifies an injunction . . . or [d]enies a motion to dissolve or modify an injunction.”9 At the same time, House Resolution 23 was filed, which took the more direct approach of urging the General Assembly to remove Chancellor Lyle from office.10 After vocal opposition by state and local bar associations, 11 this expression of legislative pique died in committee. The Three-Judge Panels The third bill eventually became Public Chapter No. 566. It provides that a civil action that (a) challenges the constitutionality of a statute, executive order, or administrative regulation, (b) seeks declaratory or injunctive relief, and (c) is brought against “the state, a state department or agency, or a state official acting in their official capacity” shall be heard by a “three judge panel” rather than a single trial judge. The Act provides that, when such an action is filed, the plaintiff shall notify the presiding judge of the district, who shall notify the Tennessee Supreme Court, which then shall appoint two judges – one from each of the other two Grand Divisions – to sit with the original trial judge.12 The Supreme Court shall designate one of the judges to serve as the chief judge, and rulings shall be by majority vote. Appeals from decisions of the three-judge panel shall lie in the Court of Appeals. Venue for such actions is the county where the plaintiff resides or, in multiple plaintiff cases, where any plaintiff resides. If the plaintiff is from out of state, venue lies in Sumner County.13 Therefore, the Davidson
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August 2021
COVER STORY By: Judy M. Cornett U.T. College of Law
Matthew R. Lyon
LMU Duncan School of Law
get constitutional challenges to statutes out of the Davidson County courts. “Why,” asked Sen. Rice, “should judges who are elected by the most liberal constituency in the state . . . be the ones deciding cases that affect the state in general?”17 In the end, by preserving the judicial branch’s ability to appoint the members of each three-judge panel, the new law seems to meet the legislators’ intent to provide greater representation of interests from across the state while avoiding a direct conflict between the two branches of our state government. But just as this is not the first effort in the last decade by members of the General Assembly to impact the political makeup of the judiciary, it surely will not be the last. One of the first cases to be heard by a three-judge panel may be the six-year-old litigation over the adequacy of the state’s funding of public schools, from which Chancellor Lyle recused herself after the legislation seeking her removal was introduced in the House of Representatives.18 As lawyers, we must trust that in this case and any others heard by the new “special chancery courts,” the judges serving on these three-judge panels will interpret and apply the law fairly and impartially, regardless of the Grand Division they call home.19
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County Chancery Court will be proper venue for such cases only when the plaintiff resides there. This would seem to legislatively overrule a 1993 Court of Appeals decision, which observed that Tennessee Code Annotated section 4-4-104, “as interpreted for many years, established venue for suits against state officials in Davidson County.”14 The three-judge panel shall sit in the supreme court building for the Grand Division of the county where the action is venued. Thus, if a case is filed in Johnson County (in the far northeastern corner of Tennessee), the plaintiff must travel to the supreme court building in Knoxville (nearly 150 miles) for any trial-level proceedings. Anticipating challenges to any redistricting plan enacted by the super-majority Republican General Assembly, the Act also requires any court (including the three-judge panel and the supreme court) to give the legislature at least 15 days in which to remedy any defects found in the redistricting plan. Final Bill Was a Compromise This final version of the legislation pulled back from prior drafts that were more blatantly political. Earlier Senate and House bills created special appeals panels made up of judges who either would be appointed initially by the Governor and face retention elections after taking the bench, or, in the case of one draft bill, be elected statewide by popular vote every eight years.15 This version of the legislation closely resembled an unsuccessful legislative effort in Texas this year to establish a statewide appeals court, popularly elected, to consider constitutional challenges to state laws.16 One of the sponsors of the Senate legislation, Sen. Mike Bell (R-Riceville), was very clear regarding the reason for the legislation: to August 2021
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Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (codified as amended in scattered sections of 29 U.S.C. and 42 U.S.C.) (overruling Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007)). 2021 Tenn. Pub. Acts ch. 566 (codified at Tenn. Code Ann. secs. 20-18-101 to -105). The legislation was the Tennessee Education Saving Account Pilot Program, 2019 Tenn. Pub. Acts ch. 506 (codified at Tenn. Code Ann. Secs. 49-6-2601 to -2612). Tenn. Const. art. XI, § 9. Mariah Timms, Duane W. Gang, & Natalie Allison, “Judge Rules Gov. Lee’s Education Savings Account Program Unconstitutional,” THE TENNESSEAN (May 4, 2020), available at https://www.tennessean.com/story/news/ education/2020/05/04/judge-rules-gov-bill-lees-education-savings-accountprogram-unconstitutional/3068998001/. Metropolitan Government of Nashville and Davidson County v. Tennessee Dep’t of Education, No. M2020-00683-COA-R9-CV, 2020 WL 5807636 (Sept. 9, 2020), appeal granted, (Tenn. Feb. 4, 2021). Memorandum and Order, Demster v. Hargett, No.20-435-I(III) (Davidson Co. Chancery Ct. June 4, 2020), available at https://www.aclu.org/sites/default/files/ field_document/order_-_lay_v_goins.pdf. Fisher v. Hargett, 604 S.W.3d 381 (Tenn. 2020). 2021 Tenn. Pub. Acts 564. https://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=HR0023. Stephen Elliott, “Bar Associations Criticize Lyle Resolution,” NASHVILLE POST (Mar. 2, 2021), available at https://www.nashvillepost.com/courts/bar-associationscriticize-lyle-resolution/article_91326cfe-c014-5171-85c1-d8991bc407b9.html. 2021 Tenn. Pub. Acts ch. 566. Also, the Tennessee Supreme Court has promulgated Rule 54: Interim Rule for Special Three-Judge Panels, to implement the legislation. When asked why Sumner County was chosen as the default venue for out-of-state plaintiffs, the sponsor of the bill, Rep. Johnny Garrett (R-Goodlettsville), stated, “An out of state plaintiff who has no residence here should have a place to be. Someone 50 years ago chose Davidson County for some reason that I don’t know. Out of state plaintiffs have to have somewhere, and we chose Sumner just like they chose Davidson.” Floor Debate on H.B. 1196, April 8, 2021, available at https:// tnga.granicus.com/MediaPlayer.php?view_id=610&clip_id=24582. Rep. Garrett represents District 65, encompassing part of Sumner County. Morris v. Snodgrass, 871 S.W.2d 484, 485 (Tenn. Ct. App. 1993). https://www.tennessean.com/story/news/politics/2021/05/05/tennessee-superchancery-court-state-legislature-davidson-county-judges/4925406001/. https://capitol.texas.gov/BillLookup/Text.aspx?LegSess=87R&Bill=SB1529. Pam Sohn, “Tennessee’s ‘Super’ Court Idea is Super GOP Partisan,” CHATTANOOGA TIMES-FREE PRESS (May 3, 2021), available at https://finance.yahoo.com/news/ opinion-tennessees-super-court-idea-010000816.html. Nate Rau, “Education Funding Lawsuit Could Head to New Three-Judge Panel,” TENNESSEE LOOKOUT (July 2, 2021), available at https://tennesseelookout. com/2021/07/02/education-funding-lawsuit-could-head-to-new-3-judge-panel/. The authors thank University of Tennessee College of Law student Molly Green Majewski for her excellent research assistance.
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HELLO... MY NAME IS By: Jennifer Franklyn Leitner Williams Dooley Napolitan
HALEIGH CHASTAIN This month’s “Hello, My Name Is…” q-and-a features Haleigh Chastain, an Associate Attorney at Bernstein, Stair & McAdams. Haleigh graduated from the Cumberland School of Law at Samford University in 2019, and she currently practices domestic relations and family law, including divorce, custody, child support, and paternity actions. Haleigh is a member of the KBA and the TBA and is also involved in the Knoxville community as a Member of the Knoxville Opera Board of Directors. I hope you enjoy this month’s feature on Haleigh, an up-and-coming lawyer in East Tennessee.
have a Goldendoodle, Remy, who is very energetic, and Remy and I are frequent visitors to the park so she can run off some of her energy. I also have started attending CrossFit classes in Knoxville and enjoy my CrossFit community. What is your favorite restaurant in Knoxville? Any type of Mexican food. What skill or hobby are you currently learning? I just bought my first house, and I am learning how to do various home improvement projects. Do you play any sports? I played tennis in high school and college and even had a job as an instructor at a tennis camp at Wofford College. Once I started law school, I started going to CrossFit classes, and I have kept up with CrossFit ever since.
Where are you from? I was born and raised in Knoxville. I moved away for college at CarsonNewman, where I majored in Exercise Science, and then I attended law school in Birmingham, Alabama, at the Cumberland School of Law. But I always knew I would end back up in Knoxville. Why did you decide to go to law school? It was not until I was in college that I decided to go to law school. My dad is an attorney at Bernstein, Stair & McAdams. I went to the office often while growing up, and I would handle clerk and runner duties in the summer. By working at the office and growing up around law, I watched what my dad did and became interested in pursuing a legal career in my junior year in college. I took some pre-law and business law courses and enjoyed the reading and writing, and I ultimately decided to go to law school. What motivates and energizes you at work? I want to become the best lawyer possible so I can help my clients through one of the most difficult times of their life and get them through to the other side. I work in a very good firm that prides itself on providing great service to its clients. I know that I have to work hard one hundred percent of the time to reach the level of professionalism and service that the partners provide and to uphold the legacy of those who have come before me at the firm. What do you enjoy doing outside of work? You can often find me being active, working out, and being outside. I
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August 2021
SCHOOLED IN ETHICS By: Alex B. Long Williford Gragg Distinguished Professor of Law University of Tennessee College of Law
REMOTE PRACTICE AND THE UNAUTHORIZED PRACTICE OF LAW Hypothetical
Rule 5.5 simply by virtue of being physically present in Georgia. In such cases, the lawyer’s presence in the local jurisdiction is merely incidental.2 At least two other state ethics committees have reached the same conclusion.3
Alice is licensed only in the State of Tennessee, but she lives in Savannah, Georgia. She has a physical law office in Tennessee but does most of her work in Savannah using a personal computer securely connected to the firm’s computer network. She does not hold herself out as licensed in Georgia, nor does she represent Georgia clients. She wishes to provide legal advice about Tennessee law from her Savannah home to clients located in Tennessee. Is she engaged in the unauthorized practice of law? What other ethical concerns might arise from her practice.
Competence and Confidentiality Concerns
COVID-19 forced lawyers to use technology in ways most never imagined. The pandemic also revealed that the practice of law does not necessarily have to always take place within a brick-and-mortar office or courtroom. More generally, employers of all kinds are realizing that it may be that some work does not involve a 40 hour a week physical presence in the office and that some work can be done remotely. Several recent ethics opinions provide guidance lawyers on the subject of practicing law remotely. Unauthorized Practice of Law Concerns One problem for lawyers who wish to practice remotely – either on an ongoing or temporary basis – has always been the potential for such practice to amount to the unauthorized practice of law. Like Alice in the hypothetical, a lawyer may wish to permanently relocate to another jurisdiction. Or a lawyer may wish to practice virtually in another jurisdiction while on vacation or while working on another matter. TRPC Rule 5.5(b) prohibits a lawyer who is not licensed in Tennessee from establishing an office or other systematic and continuous presence in the state for the practice of law. A recent advisory ethics opinion from Florida concludes that a remote practice like the one that Alice from the hypothetical seeks to engage in would not amount to the unauthorized practice of law in the state where the lawyer is physically located. According to the opinion, the facts do not implicate the unlicensed practice of law in Georgia. The purpose of the unauthorized practice of law rules is the protection of the public. Since (in this hypothetical) Alice is not providing legal services to Georgia citizens, no Georgia citizens are put at risk. So, Georgia would have no interest regulating Alice’s practice, provided she does not hold herself out to Georgia citizens as being available to provide legal services to them.1 The Florida opinion largely tracks a December 2020 ABA opinion on the same subject. According to ABA Formal Opinion 495, a lawyer in Alice’s situation does not have a systematic presence for purposes of
The other issues related to this type of remote practice involve the ability of the lawyer practicing remotely to provide competent representation and to maintain client confidentiality. ABA Formal Opinion 498 discusses the ethical concerns raised by a virtual practice. The opinion notes that part of a lawyer’s duty of competence involves keeping abreast of the benefits and risks associated with relevant technology. The opinion identifies maintaining the confidentiality of client information as the primary area of concern. Accordingly, the opinion identifies several issues related to virtual practice that lawyers need to consider. These include reviewing the terms of service associated with hardware devices and software systems to ensure that client confidentiality is protected; ensuring reliable access to client records; and ensuring that video meeting platforms and virtual document and data exchange platforms have adequate security measures in place. Tennessee Law To date, the Tennessee Board of Professional Responsibility has not opined on the issue of remote practice and the unauthorized practice of law. But the logic of the Florida and ABA opinions on the subject is undeniable, so it is difficult to see why the BPR would reach a different conclusion. That said, Tennessee lawyers engaged in remote practice need to stay within the boundaries identified in the opinions. For example, the lawyer who is licensed in Tennessee, lives in Georgia, and provides legal advice via email to a client in California on California law would not necessarily be protected by these opinions and should consult TRP Rule 5.5(b) for further guidance. Tennessee lawyers need to also be mindful of their ethical obligations when it comes to the use of technology. The last Tennessee ethics opinion on the issue of technology in the practice of law was from 2015.4 But the ABA’s 2020 opinion on the subject provides useful guidance on the issue of technology in the practice of law, even outside the specific context of virtual practice.
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See The Florida Bar Re: Advisory Opinion – Out-of-State Attorney Working Remotely From Florida Home (May 20, 2021), https://www.floridasupremecourt.org/content/ download/743446/opinion/sc20-1220.pdf. See ABA Formal Opinion 495, Lawyers Working Remotely (Dec. 16, 2020), https:// www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ aba-formal-opinion-495.pdf. See Debra Cassens Weiss, Remote Practice in Home from Florida Isn’t Unauthorized Practice, Advisory Opinion Says, ABA Journal, May 24, 2021. See TN Formal Ethics Opinion 2015-F-159.
If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. August 2021
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barrister bullets VETERANS LEGAL CLINIC TO BE HELD IN-PERSON The Access to Justice Committee will hold the next Veterans Legal Clinic in-person at the Knoxville Community Law Office, located at 1101 Liberty St., Knoxville, TN 37919, on August 11, 2021, from 12 p.m. until 2 p.m. BREWS FOR BACKPACKS SCHOOL DRIVE EVENT The KBA Barristers Hunger & Poverty Relief Committee will host their annual Brews for Backpacks event on August 5, 2021 from 5:30 p.m. until 7:30 p.m. at the Barrelhouse by Gypsy Circus, located at 621 Lamar St., Knoxville, TN 37917. Participants will receive a free drink ticket if they bring a backpack with school supplies or purchase a Back to School Bundle from the KBA. All donations will go to ChildHelp. Register by clicking August 5 in the event calendar at www.knoxbar.org.
VOLUNTEER BREAKFAST COMMITTEE TO RESUME OPERATIONS, SEEKS SPONSOR The Volunteer Breakfast Committee is now able to prepare breakfast at the Volunteer Ministry Center on the fourth Thursday of every month beginning at 6 a.m. A big thank you to everyone who participated in June’s Volunteer Breakfast event, especially this month’s sponsor: Egerton, McAfee, Armistead & Davis, PC! This month’s volunteers are pictured (left to right) Sallie Neese (Lewis Thomason), Emma Knapp (Lewis Thomason), and Committee Chairs Mitchell Panter (Lewis Thomason) and Matt Knable (Knable Law). The Barristers Volunteer Breakfast Committee is seeking a sponsor for the breakfast in October. Please contact Matt Knable (knablelaw@gmail.com) or Mitchell Panter (mpanter@ lewisthomason.com) for questions regarding sponsorship or if you would like to volunteer.
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August 2021
B O AT B U I L D E R S By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.
REMEMBER On the Jewish calendar, Tisha B’Av is an annual day of fasting. It is named for the ninth day (Tisha) of the month of Av, and it commemorates the destruction of the First Temple and the Second Temple in Jerusalem—destruction that occurred on the same day, 655 years apart.1 It marks the end of a three-week period of mourning and introspection following the 17th of Tammuz, the day the Romans breached the walls of Jerusalem in 70 AD.2 It occurs in either July or August, and in 1942, it was commemorated on July 22nd and 23rd,3 one month after young Anne turned thirteen. Thirteen is a hard year for everyone. Everything is a confusing contradiction: your body, your brain, your hormones, your emotions, your crush, your best friend, your worst enemy, the list goes on and on. But, summers are the best . . . and the worst . . . because, while school has its own issues, at least it provides the certainty of a routine. Summertime is the transition period within the transition period. Anne turned thirteen in the middle of a difficult summer. A few years earlier, her family had relocated from Frankfurt to Amsterdam, and Anne found herself trying to make new friends and find a way to fit into a new culture while trying to learn a new language. It was hard to fit in, but it was about to get worse. When she was twelve, she was required to change schools, from the public school she was attending to a school for Jewish children. Anne had no way of knowing that, on August 2, 1941—which happened to be Tish B’Av that year, SS Commander Heinrich Himmler formally received approval to implement “The Final Solution.” All Anne knew was that, in Amsterdam 1941, being Jewish meant being methodically and deliberately pushed to the margins of society, unable to participate for no reason other than your heritage.4 But, when Anne turned thirteen in 1942, her parents did what most parents try to do—shield their children from the ugliness around them. Her mom made cookies for Anne to take to school, and she made a strawberry pie for the family to share at home. Her parents decorated the house in flowers and took her to pick out her birthday present, a small, red and white autograph book with a tiny lock—the perfect place for a thirteen-year-old to keep her most secret thoughts, feelings, and observations about the terrifying world around her.5 A month later, Anne’s older sister, Margot, was summoned to a Nazi work camp. Anne and her family went into hiding. For the next two years and thirty-five days, Anne, Margot, their parents Otto and Edith, and four other people lived in a tiny, concealed space in the house behind Otto’s office. For the next two years and thirty-five days, Anne could not see the sky, feel the warmth of the sun or move about during the day lest she be discovered by the employees who worked just a few inches away on the other side of the concealed entrance. For the next two years and thirty-five days, Anne dreamed of wearing lipstick, going to school, and seeing women dance about in beautiful dresses. Anne’s dreams made their way into that little, red and white autograph book which became Anne’s diary, her story of her days spent in hiding.6 Anne also wrote about what she could see and hear, what she experienced while she was in hiding. In the spring of 1944, Anne and her family heard a radio broadcast by Radio Oranje, the exiled Dutch government, calling to people to keep a record of what they were experiencing. These eye-witness accounts would be used to expose the crimes of the German occupation and help bring its perpetrators to justice. Anne took this message to heart and began rewriting her diary, August 2021
focusing less on her private thoughts and feelings and more on the stories of the daily life of a family in hiding.7 On June 6, 1944, Anne and her family heard that the U.S. armed forces had landed in Normandy and were starting the deadly fight to take back Europe.8 Freedom was so close that they could almost taste it. On July 30, 1944, the family observed Tisha B’Av, then, on August 1, 1944, Anne wrote her last entry in the notebook she was now using since the little diary was quite full after two years. Here last words were about living in a state of contradiction, and she ended with “As I’ve told you many times, I’m split in two.”9 Three days later, someone betrayed them to the Nazi officials, and the entire Frank family was arrested and sent to Auschwitz.10 Then, as the Allied troops were closing in, Anne and her sister were transferred to Bergen-Belsen where they died only weeks before Allied troops liberated the camp in the spring of 1945.11 Anne and Margot were two of the more than fifty thousand people who died at Bergen-Belsen. Over thirteen thousand more would die in the following weeks because they were too sick to recover.12 Anne Frank may have died, but her words survived. After the arrests, Anne’s diary and notebooks were found by Miep Gies and Bep Voskuijl, two Dutch citizens who helped the Frank family survive during their two years in hiding, who smuggled them to Anne’s father, Otto, the only member of the family who survived the concentration camps.13 This year, Tisha B’Av was commemorated on July 17th and July 18th. Today, it is a day of remembering Anne Frank and the 6,000,000 other victims of the Holocaust. But, it is also a day of remembering that nothing—not even the worst circumstances—can stop a person determined to make a difference. As Anne would write, “How wonderful it is that nobody need wait a single moment before starting to improve the world,”14. . . because boat builders build boats and memory-keepers last forever.
Hebcal, Tish’a B’Av 2021, https://www.hebcal.com/holidays/tisha-bav-2021, last visited July 9, 2021. 2 Rabbi Shraga Simmons, What are Tisha B’Av & the Three Weeks?, https://www. aish.com/h/9av/oal/96779149.html?s=lb, last visited July 9, 2021. 3 Hebcal, Tish’a B’Av 1942, https://www.hebcal.com/holidays/tisha-bav-1942, last visited July 9, 2021. 4 Michael Berenbaum, Britannica, Anne Frank, https://www.britannica.com/ biography/Anne-Frank last visited July 8, 2021. 5 Zoe Waxman, Oxford Centre for Jewish and Hebrew Studies, 12 Things You Need to Know about Anne Frank and Her Diary, HistoryExtra (Mar. 9, 2020), https://www. historyextra.com/period/second-world-war/facts-anne-frank-diary-when-founddied-amsterdam-hiding-how-long/#:~:text=Anne%20Frank%20received%20 her%20diary%20as%20a%2013th%20birthday%20present&text=This%20 birthday%2C%20on%20Friday%2012,with%20her%20friends%20at%20school, last visited July 8, 2021. 6 Id. 7 Id. 8 Id. 9 International Fellowship of Christians and Jews, Anne Frank’s Last Diary Entry (Aug. 1, 2017), https://www.ifcj.org/news/fellowship-blog/anne-frank-s-last-diaryentry-2, last visited July 9, 2021. 10 Berenbaum, supra n. 4. 11 Id. 12 United States Holocaust Memorial Museum, Bergen-Belsen, https://encyclopedia. ushmm.org/content/en/article/bergen-belsen, last visited July 9, 2021. 13 Anne Frank House, The Complete Works of Anne Frank, https://www.annefrank. org/en/anne-frank/diary/complete-works-anne-frank/#:~:text=How%20was%20 the%20diary%20preserved,a%20drawer%20of%20her%20desk., last visited July 9, 2021. 14 Anne Frank, Anne Frank’s Tales from the Secret Annex: A Collection of Her Short Stories, Fables, and Lesser Known Writings (2003). 1
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LEGAL MYTH BREAKERS By: Brad Fraser Leitner Williams Dooley Napolitan
Jennifer Franklyn
Leitner Williams Dooley Napolitan
NEVER MIND THE DAMAGES “Never mind” or “Nevermind.” The phrase can mean different things to different people. Depending on the tone, some “Boomers” might consider it rude. To Gen X, it conjures memories of the Nirvana album that introduced America to “grunge.”1 Apparently, it can be used as a noun, a verb, or a conjunction and an imperative (break out the Harbrace).2 You may even see it in text messages or Tweets as “Nvm.”3 Recently, there have been challenges to newly enacted statutes that have reached the Tennessee Supreme Court. In the recent case of Yebuah, et al v. Center for Urological Treatment, PLC, the Tennessee Supreme Court provided additional interpretation of the statutory cap on noneconomic damages and how it applies to a loss of consortium claim.4 The Statute and the Issue As part of the Tennessee Civil Justice Act of 2011, the Tennessee state legislature passed a statutory cap on noneconomic damages, codified as Tennessee Code Annotated section 29-39-102.5 We wrote in a prior article that this statute was recently deemed constitutional in McClay v. Airport Management Services, LLC.6 However, an open question had remained as to the application of the statutory cap to a spouse’s loss of consortium claim. In Yebuah, the Tennessee Supreme Court has answered this question. The Case Plaintiff, Cynthia Yebuah, underwent a surgical procedure in which a portion of a GelPort surgical device was inadvertently left inside of the Plaintiff ’s abdomen.7 Although several medical procedures followed over the years, the device was not removed for over eight (8) years.8 Plaintiffs filed suit in Davidson County against several medical providers, seeking recovery for noneconomic damages, including a loss of consortium claim.9 After many of the Defendants were dismissed, the case against a single remaining Defendant, the Center for Urological Treatment, PLC (“the Center”), went to the jury on the issue of damages.10 The jury awarded Mrs. Yebuah $2,000,000 for pain and suffering and $2,000,000 for loss of enjoyment of life.11 In addition, the jury awarded Mr. Yebuah $500,000 for loss of consortium.12 After trial, Plaintiffs and Defendant submitted competing proposed judgments to the trial court: from the Plaintiffs, a judgment for jury award of $4,500,00, and from the Center, a judgment for jury award of $750,000.13 Specifically, the Center’s proposed judgment cited to the statutory cap for noneconomic damages to reduce the total judgment to $750,000.14 The trial court determined that the statutory $750,000 cap on noneconomic damages should apply separately to each Plaintiff ’s damages award and entered a judgment of $750,000 for Mrs. Yebuah and judgment of $500,000 for Mr. Yebuah, resulting in a total verdict of $1,250,000.15 On appeal, the Court of Appeals determined that the trial court’s application of the damages cap statute was proper and upheld the trial court’s decision.16 The Tennessee Supreme Court granted the Center’s application for permission to appeal on the sole issue of whether the statutory cap on noneconomic damages applies separately to a spouse’s loss of consortium claim.17 In reviewing the case, the Tennessee Supreme Court focused on statutory interpretation of the relevant statute, at subsection (e) of the statute, as follows:18 (e) All noneconomic damages awarded to each injured plaintiff, including damages for pain and suffering, as well as any claims of a spouse or children for loss of consortium or any derivative claim for noneconomic damages, shall not exceed in the aggregate a total of seven hundred fifty thousand dollars ($750,000)….
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Tenn. Code Ann. § 29-39-102.19 Plaintiffs argued that the statute’s usage of “each injured plaintiff ” referred to each plaintiff and cited to the Court of Appeals’ finding that “[t]he repeated phrase ‘each injured plaintiff ’ tells us that the legislature chose to impose a ‘per plaintiff ’ limit on noneconomic damages.’”20 However, the Tennessee Supreme Court noted that Plaintiff ’s position did not account for the differences between a plaintiff with a personal injury and a spouse with a loss of consortium claim, and the Court determined that the statute’s use of “each injured plaintiff ” was not synonymous with “each plaintiff.”21 In response to the Plaintiffs’ argument that the “concept of an ‘uninjured spouse’ is in derogation of common law,” the Court cited to other examples from Tennessee caselaw, distinguishing between the primary plaintiff who suffers personal injuries and a spouse with a derivative claim.22 The Court also noted that the Tennessee Pattern Jury Instructions include a distinction between the “injured spouse” and the “other spouse.”23 The Court determined that because “[a] loss of consortium claim is a derivative claim, and recovery is dependent on the spouse’s recovery,” the statute’s use of “injured plaintiff ” should be interpreted as limiting language.24 The Takeaway Tenn. Code Ann. § 29-39-102 limits noneconomic damages to $750,000 for the aggregate award for an injured plaintiff and any derivative claims (for injuries that are not “catastrophic” as defined by the statute). In sum, if a jury awards more than $750,000 in noneconomic damages to an injured plaintiff and to a spouse with a loss of consortium claim, the trial court must reduce all noneconomic damages amounts to a total of $750,000— never mind the damages awarded by the jury.
Rolling Stone, Nirvana’s ‘Nevermind’, https://www.rollingstone.com/feature/ nirvanas-nevermind-10-things-you-didnt-know-108845/ (last visited July 7, 2021). Merriam-Webster, Minding ‘Never mind’ and ‘Nevermind,’ https://www.merriamwebster.com/words-at-play/origin-of-never-mind-nevermind-and-nvm (last visited July 7, 2021). 3 Id. 4 Yebuah v. Ctr. for Urological Treatment, PLC, --- S.W.3d ----, No. M201801652SCR11CV, 2021 WL 2217483 (Tenn. June 2, 2021). 5 Tennessee Civil Justice Act of 2011, 2011 Tennessee Laws Pub. Ch. 510 (H.B. 2008). 6 See McClay v. Airport Mgmt. Servs., LLC, 596 S.W.3d 686 (Tenn. 2020). 7 Yebuah¸ 2021 WL 2217483, at **1-2. 8 Id. 9 Id. 10 As described by the Court, three of four Defendants were dismissed prior to jury deliberations. Id. The remaining Defendant had admitted fault, making damages the only contested issue. Id. 11 Id. 12 Id. 13 Id. 14 Id. 15 Id. 16 Id. 17 Id. 18 Id., at *4. 19 Id. (citing Tenn. Code Ann. § 29-39-102). The ellipses indicate an omitted portion of the statute regarding catastrophic injuries, which were not at issue in Yebuah. 20 Id. (citing Yebuah v. Ctr. for Urological Treatment, PLC, No. M201801652COAR3CV, 2020 WL 2781586, at *6 (Tenn. Ct. App. May 28, 2020), appeal granted (Oct. 8, 2020), rev’d, No. M201801652SCR11CV, 2021 WL 2217483 (Tenn. June 2, 2021)). 21 Id. 22 Id. 23 Id. (citing Personal Injury - Spouse, 8 Tenn. Prac. Pattern Jury Instr., T.P.I.-Civil 14.20 (20th ed. 2020)). 24 Id. 1
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August 2021
URBAN LEGENDS By: Sarah M. Booher Garza Law Firm
GEORGE FRANKLIN BARBER: ARCHITECT TO AMERICA Before Frank Lloyd Wright, subdivisions, and Amazon, there was George Franklin Barber, Knoxville suburbs, and house plan catalogs. George’s architectural legacy continues to brighten and beautify our Scruffy City. BEGINNINGS Born in 1854 in DeKalb, Illinois, to Lyman and Cornelia Barber, it is believed that George was orphaned, as he went to live with his sister Olive and her family on a farm in Marmaton, Kansas, at a young age. He bought the adjacent farm sometime in the 1870s, advertising “ornamental nursery stock.” His tax records, however, noted his official occupation as “carpenter.”1 At the same time, his interest in architecture became more than a hobby, intensely studying mail-order and technical books from powerhouses George Palliser and A.J. Bicknell & Company. He returned to DeKalb in the 1880s to design for his brother’s construction firm, Barber & Boardman. The Charles E. Brandt House in DeKalb is one of Charles’s first designs actually constructed and was featured in the March 1888 issue of Carpentry and Building. KNOXVILLE SUCCESS The late 1880s was a busy time for George both personally and professionally. In 1887 or 1888, he published his housing plans for the first time in The Cottage Souvenir. This catalog was economically-printed on punched card stock and tied together with yarn. The first edition contained fourteen house plans, although an immediate subsequent edition included four additional plans. Around the same time, George brought his wife, Laura, and their infant son, Charles, to our fair city in the hopes that the Knoxville weather would improve his failing health (although I could find no detailed information on what ailed him, all sources agree it was a medically-necessitated relocation). George ever-so-briefly partnered with Martin Parmalee, then for a few years with his client J.C. White. It was during this time with White that he became involved in the Edgewood Land Improvement Company, designing over a dozen houses for the neighborhood now known as Parkridge, originally a streetcar suburb for Knoxville’s professional class. He himself lived there with his family at 1635 Washington Avenue (a beautiful home still standing today). Eventually he settled in with Thomas Klutz in 1895. Their firm was wildly popular. When they moved into the Barber-designed French & Roberts building on Gay Street a year later, they employed thirty draftsman and twenty secretaries. NATIONAL AND INTERNATIONAL SUCCESS It was George’s popularity on the national and international stages that made his Knoxville firms and business ventures so successful. Just two years after moving to Knoxville, he published The Cottage Souvenir No. 2. This catalog included fiftynine house plans, as well as the designs for two barns, a chapel, a church, two storefronts, and several pavilions. He targeted the rising middle class along with wealthy industrialists. The houses in his catalog cost between $500 and $8,000 to build, and each design featured a photograph of the August 2021
completed structure. In discussing his architectural philosophy, Barber believed that no structure should adhere more closely to the essential principles of nature than one’s own house. He deemed proportion the most important element in architecture, likening it to harmony in music. Likewise, he considered ornamentation to be his second most important element, as it gives proportion expression.2 Perhaps what was most notable about his architectural approach was the fact that he encouraged his customers to modify his plans. He believed small tweaks should be negotiated with the builder directly; more major or large-scale adjustments could be handled with his architectural firm for a modest price. He told potential clients, “Write to us concerning any changes wanted in plans, and keep writing till you get what you want. Don’t be afraid of writing too often. We are not easily offended.”3 Whether there was a national scarcity of local architects or it was his accessible approach to housing, America adored George Franklin Barber designs. Business exploded. Then he started getting customers in South Africa, Japan, and the Philippines, among other countries. His original Queen Anne designs eventually led to Romanesque plans, then on to Colonial, Bungalow, and even Craftsman as tastes changed. He began to phase out his catalog business in the early 1900s and completely discontinued it in 1908, choosing to focus his efforts entirely on Knoxville and its surrounding areas. George died unexpectedly in 1915 (cause of death unknown or undocumented) and is buried with his family at Greenwood Cemetery on Tazewell Pike. LONG RANGE SUCCESS It is estimated that Barber sold approximately 20,000 plans of over 800 designs to customers in every U.S. state and other countries. Since he encouraged personalization of homes, it is difficult to assess the truest extent of his impact on our domestic architecture, yet his direct contributions are still recognized. More than four dozen of homes built from his designs are individually listed on the National Register for Historic Places. Countless other homes and professional buildings still stand today and have been noted as valuable characteristics of historic districts. His son Charles became an architect as well, and started his firm, BarberMcMurry, in 1915. BarberMcMurry endures today, located on Market Street, and its award-winning architecture is appreciated across Tennessee.
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He was granted a patent in 1884 for a nail-holding attachment for hammers, indicating success would have followed him regardless of what path he took in life. George F. Barber, Victorian Cottage Architecture: An American Catalog of Designs (Dover Publications, 2004), 3-7. From his Cottage Souvenir No. 2 catalog.
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WELL READ By: Hannah Lowe Fields Howell
A VISIT TO THE NATIONAL MEMORIAL FOR PEACE AND JUSTICE IN MONTGOMERY, ALABAMA As the pandemic dragged on last summer, and looking for creative ways to meet up within driving distance to enjoy outdoor activities, some of my close girlfriends and I decided to meet up for a weekend at Lake Martin, Alabama. We explored the state parks and enjoyed sunsets on the lake, and, finding ourselves close to Montgomery, we also spent an afternoon exploring the National Memorial for Peace and Justice, a memorial created by the Equal Justice Initiative (EJI). The EJI is a 501(c)(3) nonprofit founded in 1989 by Bryan Stevenson, renowned public interest lawyer and author of Just Mercy: A Story of Justice and Redemption, a memoir detailing his experiences representing Walter McMillan, a young Black man sentenced to death for the murder of a young white woman that he did not commit.1 In 2019, the book was adapted into a feature film starring Michael B. Jordan.2 You might recall that our own Beth Ford wrote a review of Just Mercy for this very column in February 2016. As Beth outlined in her review, Stevenson is a masterful storyteller, and I recommend downloading the audiobook so you can hear Stevenson tell his story in his own words. Stevenson has dedicated his life to EJI’s mission to end mass incarceration and excessive punishment in the United States, challenge racial and economic injustice, and protect basic human rights for the most vulnerable people in American society.3 In furtherance of this mission, EJI “work[s] with communities that have been marginalized by poverty and discouraged by unequal treatment, and [is] committed to changing the narrative about race in America.”4 EJI represents innocent death row prisoners, works to end abuse of the incarcerated and the mentally ill, and to help children prosecuted as adults.5 In addition to its advocacy work representing prisoners, EJI has campaigned to recognize the victims of lynching by collecting soil from lynching sites, erecting historical markers, and creating a national memorial acknowledging the horrors of racial injustice.6 The National Memorial for Peace and Justice opened to the public on April 26, 2018, and is “the nation’s first memorial dedicated to the legacy of enslaved Black people, people terrorized by lynching, African Americans humiliated by racial segregation and Jim Crow, and people of color burdened with contemporary presumptions of guilt and police violence.”7 EJI first started work on the memorial in 2010, “when [it] began investigating thousands of racial terror lynchings in the American South, many of which had never been documented.”8 The research resulted in the publication of a report in 2015, Lynching in America: Confronting the Legacy of Racial Terror, which documented thousands of lynchings in 12 states.9 Since then, EJI has further developed its research to document lynchings in states outside the Deep South, and has visited hundreds of lynching sites to collect soil and erect public markers, “in an effort to reshape the cultural landscape with monuments and memorials that more truthfully and accurately reflect our history.”10 According to EJI, the National Memorial “was conceived with the hope of creating a sober, meaningful site where people can gather and reflect on America’s history of racial inequality.”11 How to describe the memorial? It is so thoughtfully and beatifically created, I am not sure that I can do it justice. The six-acre site contains a number of powerful and thought-provoking sculptures, including a sculpture addressing slavery by artist Kwame Akoto-Bamfo, a sculpture dedicated to the women involved in the Montgomery Bus Boycott by artist Dana King, and a sculpture dedicated to contemporary issues of
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police violence and racially biased criminal justice by artist Hank Willis Thomas.12 Writings by Toni Morrison, Elizabeth Alexander, Dr. Martin Luther King Jr. are also displayed, and a reflection space honors Ida B. Wells.13 The memorial structure itself contains over 800 corten steel monuments, one for each county in the United States where a lynching took place, with the names of the victims engraved in the columns.14 The monuments, suspended from the ceiling at differing levels, surround the visitors as they walk around the peaceful, landscaped gardens, catching the light in a way that is truly breathtaking. The memorial is a haunting and beautiful tribute to the many names listed. Due to COVID-19 restrictions, we were not able to visit the nearby Legacy Museum, but we were able to go inside the Peace and Justice Memorial Center. Inside we talked to a guide who showed us a beautifully lit display wall filled with hundreds of glass jars, each one containing different colored sand collected from lynching sites across the United States: various shades of red, yellow, and brown, each one labeled with the victim’s name and origin. This display wall is in keeping with Stevenson’s belief in the connection between the victims and the soil of the sites: “there is the sweat of the enslaved, […] the blood of victims of racial violence and lynching[, …] tears in the soil from all those who labored under the indignation and humiliation of segregation[, but …] there is also the opportunity for new life, a chance to grow something hopeful and healing for the future.”15 With such beautiful simplicity, the Memorial encapsulates this complex part of America’s racial history, accomplishing its mission to create a meaningful site to acknowledge and commemorate the victims of racial injustice. 3 4 5 6 7 8 9 1 2
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https://museumandmemorial.eji.org/about https://justmercy.eji.org https://museumandmemorial.eji.org/about Id. Id. Id. https://museumandmemorial.eji.org/memorial Id. Id. Id. Id. Id. Id. Id. https://eji.org/projects/community-remembrance-project/ For more about the memorial, see A Lynching Memorial is Opening. The Country Has Never Seen Anything Like It., New York Times, April 25, 2018, available at: https://www.nytimes. com/2018/04/25/us/lynching-memorial-alabama.html
August 2021
BARRISTER BITES By: Angelia Morie Nystrom The University of Tennessee
FOR THE LOVE OF FOOD, I HAVE RAISED A COOK! For the last twenty years or so, I have not been greeted with even as much as a “How was your day?” at the end of the work day. It has always been, “Hey, Mom/Angelia/Honey. What’s for dinner?” That has always been a pretty fair question because, for the past two decades, I have been almost solely responsible for putting food on the table at our house. I do love to cook; however, I will confess that there have been times I have tried to “wait them out” so that they would just eat cereal and call it a night. Sometimes, I’m tired… and cooking is the last thing I want to do. I’ve always sort of “gone it alone” and figured that it would be that way forever. Recently, though, things have changed. For the love of food, I have a cook at my house! My fifteen year old son has become our chef/short order cook in residence. This recent change was brought about two somewhat expected events. First, Trace spent eight days at SeaBase High Adventure camp with the Boy Scouts on a fishing expedition. He loves to fish, and I knew that he was going to have the trip of a lifetime. As a part of that trip though, the Scouts were expected to cook their catches of the day and then clean up after themselves. To my surprise, Trace actually enjoyed the cooking (and eating) as much as the fishing. For a week, I received photos of restaurant-quality food courtesy of some Boy Scouts. And my son was responsible for a lot of it. Second, Trace decided he wanted a job this summer. He applied and was hired as a lifeguard at Knoxville Racquet Club. However, because of his age (15), he learned that he would not get many shifts. His boss did tell the younger guards that she needed help in the snack bar. Trace said that no one was volunteering, so he stepped up. To quote him, “It pays more, AND I get tips.” He loves his job. I’m not sure whether it is because he loves to cook or whether he loves the money he can make by cooking, but I will take it either way. And he practices his culinary skills at home. This is a win for everyone. A couple of weeks ago, Trace called me at work to let me know that he was preparing dinner. Hugh had taken him shopping, and he was going to prepare halibut and a salad. I was skeptical, but he was so proud… and it was a meal I did not have to prepare. For the halibut, Trace used halibut filets. He combined ¼ cup olive August 2021
oil, 2 TBS lemon juice, 3 cloves minced garlic, 1 TBS black pepper and 1 TBS lemon pepper seasoning in a zip lock bag. He then added the halibut and refrigerated for 1 hour. He preheated the oven to 400 °, placed the halibut in a cast iron skillet, topped each filet with a slice of lemon and baked until the fish was opaque and the lemon slices were browned. Trace’s salad was a mixture of cubed watermelon, cucumbers, fresh mint, and dried basil. It was simple, but it was delicious. The total preparation time on this meal was about 30 minutes, and the cooking time was quick. It was one of the best meals I have had in a very long time, and Trace even cleaned the kitchen after dinner. Again, this is a win for everyone. At his job at KRC, Trace’s dishes are more of the “kid food” variety. He makes hamburgers, chicken sandwiches, quesadillas, nachos and salads. He works every day, and he practices at home to see what he can do to make his food better. Apparently, it is working. A friend recently reached out to let me know that her daughter said Trace’s quesadillas are the best that she had ever had. Of course, I asked for his secret. For cheese quesadillas, Trace says the key to making a really good one is to cook the tortilla in the same spot where you just finished a hamburger. He says that the hamburger grease adds extra flavor and that the quesadilla gets extra crispy. He also adds lots of shredded cheese. He says that the best quesadillas are a mixture of cheeses, and he likes the Kraft Four-cheese Mexican Blend. He says that it melts well and the variety of cheese give it a more complex flavor. He has also had rave reviews for his burgers, and he says that the secret is in the bun—a trick he says he learned from me. Trace butters the bun and then places it on the griddle until the butter is melted and the bread is slightly browned. He says it adds flavor to the burger and gives a nice crunch when you bite into it. A dear friend once told me “Apple trees make apples.” I love food. I love to cook. And I love that my son enjoys these things, as well. Trace’s culinary skills are quite good, and I am delighted. Maybe, just maybe, he takes after me a little bit.
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Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records: Stephanie B. Daniel BPR #: 023121 Fifth Third Bank 38 Fountain Square Plaza, MD 10909F Cincinnati, OH 45263-0001 Ph: (865) 851-1477 stephanie.daniel@53.com
Steffanie M. Speck BPR #: 023030 Brock Shipe Klenk PLC 265 Brookview Centre Way, Suite 604 Knoxville, TN 37919-4066 Ph: (865) 338-9700 sspeck@bskplc.com
J. Matt Drake BPR #: 030479 Relyant Global, LLC 335 High St. Maryville, TN 37804-5831 Ph: (865) 984-1330 mdrake@relyantglobal.com
Brian J. Wanamaker BPR #: 028983 Hitachi Zosen INOVA U.S.A., LLC 10100 Global Way, Suite 210 Knoxville, TN 37932-1890 Ph: (865) 314-3090 brian.wanamaker@hz-inova.com
Lyndsey M. Phillips BPR #: 037048 Lyndsey M. Phillips, Attorney at Law P.O. Box 51222 Knoxville, TN 37950-1222 Ph: (865) 297-3026 lyndsey@lawyerlyndsey.com
WELCOME NEW MEMBERS
THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS: NEW ATTORNEYS Andrew R. Brassler Kennerly Montgomery & Finley, P.C. Michael Clement Ridenour & Ridenour Matthew Fink Rathbone Group LLC Sharon D. Frankenburg Jon C. Fromke Butler, Vines & Babb, PLLC Rebecca B. Kite U.T. College of Law Mary C. Moffatt Wimberly Lawson Wright Daves & Jones, PLLC Brenda J. Ponsford Aardvark Family Services Ann E. Sartwell Joseph Z. Winders Fox & Farmer
NEW LAW STUDENT MEMBERS Kyle Brantley Bridget J. Pyman
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August 2021
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
THE THREE R’S AND THE F-BOMB In 2017, fourteen-year-old junior varsity cheerleader Brandi Levy failed to win a promotion to the varsity squad at her Pennsylvania public high school. After leaving campus, Brandi expressed her frustration via Snapchat: She and a friend extended their middle fingers and posted, “F**k school f**k softball f**k cheer f**k everything.” From such vulgarities do First Amendment precedents spring. Because even schoolkids have constitutional rights. The Supreme Court has repeatedly said so, notably in 1969, when it ruled that a thirteen-yearold girl, Mary Beth Tinker, had the right to protest the Vietnam War by wearing a black arm band to her public school. The Court famously proclaimed: It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.1 The Court condemned school administrators who simply wanted to control student speech of which they disapproved: In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.2 As to what constitutes “constitutionally valid reasons to regulate” student speech, the Tinker court adopted a standard from an earlier case involving civil rights protests: In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.3 The Court then determined that merely wearing a black armband did not “materially and substantially interfere” with school operations. Alas, Tinker was the last major victory for student speech in the past half-century. As the Warren Court became the Burger Court, and then the Rehnquist Court, and, now, the solidly-conservative Roberts Court, student speech lost out again and again. In Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), the Court decided that school newspapers did not enjoy the same First Amendment protections as other newspapers, and that, therefore, a school administrator could prohibit publication of articles concerning divorce and teen pregnancy,
even though those articles had been approved by the paper’s faculty advisor. The Court said that the administrator need only cite “legitimate pedagogical concerns” 4 for such censorship—a far cry from the Tinker standard. Subsequent Supreme Court cases further empowered school officials at the expense of student speech. Among the more controversial decisions was Morse v. Frederick, 551 U.S. 393 (2007), in which a public school disciplined a student for off-campus speech. A public high school in Alaska allowed students to leave the school to witness the passing of the 2002 Olympic Torch. Student Joseph Frederick took this opportunity to unfurl a banner reading, “BONG HiTS 4 JESUS.” Principal Donna Morse ran across the street and seized the sign. Although Frederick insisted that the message was nonsense, school officials considered it an endorsement of drug use and suspended him. The Court held for the school district. Finding neither Tinker nor Hazelwood controlling, the Court announced the greatest curtailment of student speech rights to date: When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act—or not act—on the spot. It was reasonable for her to conclude that the banner promoted illegal drug use—in violation of established school policy—and that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.5 In other words, the Court endorsed the most severe type of governmental censorship: viewpoint discrimination. And it did so with regard to speech that occurred off campus. Which brings us to 2021, cheerleaders, and Snapchat. On June 23, the Supreme Court issued its opinion in Mahanoy Area School District v. B.L.,6 in which, for the first time, it squarely considered the power of a school district to regulate student speech that takes place off campus. After Brandi Levy dropped her f-bombs, school officials suspended her from the junior varsity cheer squad. But the Supreme Court held that Levy’s off-campus speech did not substantially interfere with school discipline and was protected by the First Amendment. While declining to adopt a categorical prohibition on school regulation of off-campus speech, the Court expressed skepticism about allowing school officials to regulate what students say twenty-four-hours a day. It also noted that offcampus discipline was generally something best left to parents. One prediction: Just as Morse will always be known as “the BONG Hits 4 JESUS case,” Mahanoy will long be remembered not merely for its protection of student speech, but for the multiple f-bombs that prompted that protection.
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3 4
Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969). Id. at 511. Id. at 738, citing Burnside v. Byers, 363 F.2d 744, 749 (5th Cir. 1966). Hazelwood, 484 U.S. at 273. Morse v. Frederick, 551 U.S. 393, 409-10 (2007). Slip opinion available at: https://www.supremecourt.gov/opinions/20pdf/20-255_ g3bi.pdf.
Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. August 2021
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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. LYNDSEY L. LEE JOINS LEWIS THOMASON LAW FIRM Lyndsey L. Lee is a member of Lewis Thomason’s Business & Commercial and Tax Practice Groups and is based in the firm’s Knoxville office. Commercial representation and taxation are Lyndsey’s primary focus, and she serves as outside counsel for small to mid-sized businesses. Lyndsey also has significant litigation experience, handling a wide variety of matters including domestic matters, appellate matters, creditor and landlord representation, and healthcare litigation. EAST TENNESSEE COMMUNITY DESIGN CENTER GARDEN PARTY HONORING TOM MCADAMS AND LAKESHORE PARK The East Tennessee Community Design Center (ETCDC) will celebrate the revitalization of Knoxville’s Lakeshore Park and the community members involved in the revitalization efforts. This year’s Bruce McCarty Community Impact Award will be presented to Knoxville lawyer Tom McAdams. This award is granted to individuals that the ETCDC believes have demonstrated a commitment to building a better future for our region. The award will be presented on August 11, 2021, Lakeshore Marble Hall. Cocktails, small plates, and lawn games will be available at 6:30. Art auction bidding will end and the program will begin at 7:30. Garden Party attire requested. For more information: https://communitydc.org/lakeshore/.
somewhat strained, the committee aims to find ways to promote a spirit of cooperation and better understanding. The committee welcomes member participation and ideas for networking and/or events or programs to be held in conjunction with other. Committee Chairs Sherri DeCosta Alley and Paul Wehmeier would like to know if you have any ideas for networking with other professionals. If you would be interested in serving on the committee or have contacts with other organizations, please contact KBA Executive Director Marsha Watson at mwatson@knoxbar.org. 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. OFFICE SPACE AVAILABLE: •
Office Space for Lease at the Northgate Professional Building, near Downtown Knoxville at 3806-3814 Powers Street, Knoxville, TN 37917. Up to 6 office units available for lease. Office space includes, shared lobby and reception area, library/conference room, restrooms and kitchenette. $400 per office. Free Parking. Email angelaloweatty@gmail.com for inquiries.
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1520 Highland Avenue in Fort Sanders Available - The offices are $1,000/month and includes a private office and access to a common area that includes a full kitchen, reception area, conference room and separate client meeting room, plus 1 free parking space in addition to free on street parking. The office is “Class A” space (there’s even a fireplace in the meeting room!)and it would be a great office sharing arrangement for up to 4 people who are starting out. Rent includes utilities, alarm, and internet. Contact Perry Childress at (865) 803-2545.
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Downtown Office Space - Downtown attorney has office space available for rent at The First Horizon Building, 800 S. Gay St., 22nd floor. The rent includes phone and internet. Westlaw available. Email jfanduzz@gmail.com for inquiries.
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Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 900 sq ft. Office Space includes a reception area, conference room and work area for additional employees. Very Affordable Rate with a two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.
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Existing association of attorneys have available 1-2 office spaces in historical building 1816 Clinch Ave., across from Ft. Sanders Reg. Hospital to include parking spaces, conference room, reception area, receptionist, phone system, internet and Lexis access. Email cburks@jnblawfirm.com or call (865) 522-4964 for inquires.
FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates? Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource. CAN YOU DONATE AN HOUR TO HELP A NONPROFIT? The KBA and its participating attorneys recognize that many small to mid-sized nonprofit organization have legal questions, but not the resources to retain legal counsel. Participating attorney agrees to provide up to one hour of pro bono legal assistance to 501(c)(3) tax-exempt organizations with a budget of $1,000,000 or less. Through this partnership, nonprofit staff and boards are assured timely and accurate answers while providing attorneys with a satisfying but not overwhelming way to perform pro bono service. If you are willing to help, contact Marsha Watson at the KBA Office at 522-6522. NETWORKING OPPORTUNITIES - PROFESSIONALS The mission of the KBA’s Interprofessional Relations Committee is to encourage mutually beneficial interaction among lawyers and other professionals in the community, such as physicians, accountants, financial planners, and the like. In addition, where existing relationships may be
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August 2021
LONG WINDED By: Jason H. Long London Amburn
IN PRAISE OF THE PENCIL I have a problem managing pens. I sometimes leave them uncapped and accidentally put them back in my pocket. I have been known to carry them on planes where they can explode, due to changes in air pressure. It is not uncommon for me to aimlessly chew on the end of a pen cap until it deteriorates, allowing ink to pour out even when the cap is on. Regardless of the reason, I have, on a semi-regular basis, ruined shirts and suits as a result of my inability to keep ink inside a pen. Recently, after throwing out yet another ruined shirt which had been the victim of an ink catastrophe, Carol Anne put an ultimatum to me: Stop using pens. Unless required to sign legal documents, she relegated me to the use of pencils only. She did not tell me what the punishment would be for violating this rule, and I am afraid to find out. A dutiful husband, I went out and bought a pack of Ticonderoga No. 2 pencils and a small hand-held sharpener, ready to embark on my career as the pencil lawyer. To my surprise, I learned that I like using pencils. There is something satisfying about sharpening a pencil to a fine point. I enjoy watching a pencil gradually whittle down in size, providing immediate affirmation of the work I am doing. I relish erasing pencil marks and swiping small bits of used rubber off my paper, confirming that I have eliminated errors and am ready to move on. I am a believer. Pencils are superior to pens in almost all ways. Let me explain. Pencils are nostalgic. Pencils take me back to grade school days, when my mom always made sure I had two sharpened pencils with me when I headed off to school. Getting up from my desk and going to the wall-mounted sharpener in the classroom was always a refreshing break. An opportunity to clear my mind and even visit with classmates on the opposite side of the room (I once bet a classmate he couldn’t get through an entire class period without sitting down in his desk – amazingly he won as he randomly wandered about the classroom for fifty minutes and made at least eight trips to the pencil sharpener). For those environmentally conscious among us, the choice of a pencil over a pen is a no-brainer. Pencils are virtually entirely organic. The residue pencil shavings are composed primarily of wood and therefore pose no long-term danger to the environment, unlike plastic or metal pen casings which fill our landfills. Many people fear potential lead poisoning from pencils (a rumor surely started by the pen industry). However, pencils do not actually contain lead, but rather graphite, which is non-toxic to humans, unless ingested in large quantities. In short, unless you eat pencils on a fairly regular basis, they pose no substantial risks to humans or the planet. Personally, I believe I write more quickly with pencils than I do with pens. Graphite glides across the paper with minimal friction. August 2021
Even the best roller ball pens experience some resistance. When you are in a zone and the muse is speaking through you, the millisecond difference between using a pencil or pen could be the difference between a winning brief and writer’s block. Pens can be deceptive. I can’t tell you how many times I have picked up a perfectly good-looking pen, only to find as I attempted to use it, that it was out of ink. Invariably, I toss the pen to the side in disgust and frantically search for another one with hopefully an adequate reservoir of ink. That never happens with the trusty pencil. If you see the graphite point sticking out, you know that it will write, and you can gauge how much longer you can use it simply by looking at the length. I am not typically a person given over to fits of rage, but trying to use a pen with little or no ink is one of the few triggers that can put me in a bad mood. Given the numerous advantages of pencil over pen, I am left to wonder why the legal profession has generally rejected the use of pencils. Why am I the only lawyer I know who routinely eschews the pen? I think the answer has to do with the fact that the practice of law is often about image and posturing. At least in litigation, it is important to show strength, to exude competence. Everything that happens in a case should be perceived as expected and part of a grand plan designed by the attorney. Nothing cuts into that image quite like an attorney who shows up for a deposition with a number two pencil and a pencil sharpener because he can’t be trusted to competently use a pen. To say that it undermines the client’s confidence in you is an understatement. Pens have always been viewed as superior to the pencil because they are permanent and exude confidence. Nobody brags about completing crossword puzzles in pencil. The use of a pen presupposes confidence and accuracy. A person who uses a pen does not make mistakes. At least that is what they would have you believe. A pencil, by contrast . . . well, a pencil is built for mistakes. Self-equipped with an eraser, a pencil screams to the world “I am a flawed individual.” But here is the thing: I know I am a flawed person and flawed attorney. I have spent my entire career perfecting the ability to say “I am sorry, let me fix that.” I have been forced to embrace my flaws and use that as a strength in the practice of law. The pencil keeps me humble, honest and always seeking to improve. I know many lawyers who merit the use of a pen. Intelligent, erudite, self-confident, they project the image of consummate professionalism. That’s not me. Socrates famously advocated “Know thyself.” I know that I am a pencil lawyer, and I am content with that. At least I do not have to replenish my wardrobe as often.
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Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System
PRO BONO SPOTLIGHT By: Caitlin Torney Pro Bono Project Attorney for Legal Aid of East Tennessee
THE PRO BONO PROJECT IN CHATTANOOGA This month I wanted to explore a pro bono program in another city and invited our former Pro Bono Staff Attorney Matthew Huff from the Legal Aid of East Tennessee Chattanooga office to guest write this month’s article. I am excited to implement some of the successful, innovative programs from Chattanooga here in Knoxville in the near future. “Here each day the old, the unemployed, the underprivileged, and the largely forgotten people of our Nation may seek help. Perhaps it is an eviction, a marital conflict, repossession of a car, or misunderstanding over a welfare check—each problem may have a legal solution. These are small claims in the Nation’s eye, but they loom large in the hearts and lives of poor Americans.” –President Richard Nixon East Tennessee is home to many great attorneys. From Bristol to Chattanooga, Legal Aid of East Tennessee works with pro bono attorneys across the Eastern Grand Division of Tennessee. My office in Chattanooga handles cases in the southern counties of Eastern Tennessee, from Sequatchie to Monroe. The need for legal assistance is great in this area. Even though there is finally the light at the end of the COVID-19 tunnel, the repercussions of the virus will be long felt. The most vulnerable members of our East Tennessee community suffered greatly from shutdowns, and I had countless clients who were out of work for several months and were forced to prioritize their spending. Hiring an attorney for their legal issues was out of the question for a lot of these individuals, whose legal issues vary from complex real property disputes to name changes. In Chattanooga, we offer a wide variety of pro bono aid for those who need it. The backbone of our program is the wide array of individual attorneys from Chattanooga and the surrounding counties who are willing to accept pro bono cases through the Chattanooga Pro Bono Project. These cases are not exclusively simple matters that take only a few hours to complete, we have several attorneys who have devoted over 80 hours to clients in complex litigation. In particular, the law firm of Chambliss, Bahner & Stophel has explicitly asked us to keep an eye out for complex, difficult litigation for their team to tackle on a pro bono basis. In addition to full case placement, we have general advice phone clinics twice a month, in which volunteer attorneys advise clients in thirty-minute appointments about their various legal issues. Due to the housing crisis, we have also begun a weekly housing advice clinic. July is shaping up to be a massive month for evictions and the need for housing assistance is great, but we have been fortunate to have several members of the local bar who were willing to take up the call for aid. We also have several clinics in the works to aid individuals with legal issues we cannot handle in-house, such as an expungement clinic and a benefits clinic. One of our program’s goals is to identify the needs of the community and respond to them through new projects. A recent innovation we are especially proud of is the Pro Bono Christmas Tree. In conjunction with twelve judges at the Chattanooga courthouse, we set up a Christmas tree on the main floor of the courthouse. The tree was decorated with justice themed ornaments that were hung by the judges in an informal ceremony at the beginning of December. In the past, attorneys would take an ornament as a commitment to accept a pro bono case through our program. However,
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this year we directed attorneys to our online website “Pro Bono Matters” where they were able to pick a case that appealed to them and suited their practice area. Some judges allowed attorneys who committed to taking a case from the tree to get priority on the docket the day they committed to take a case. We love this tradition because it encourages attorneys to give back during the season of giving through pro bono service. One of the more significant projects we are beginning is our mentorship program where we hope to create a network of experienced attorneys in a particular area of the law who would be willing to mentor other attorneys on the nuances of handling those types of legal cases. This would allow Legal Aid to be a resource for attorneys who are interested in expanding their practice by taking on pro bono cases in areas that they may not be as familiar with but with the comfort of knowing they would have help if they need it. This program will help us expand the pool of pro bono attorneys in our area that not only serve our clients through pro bono representation, but it will also help new attorneys to develop the scope of their practice and provide a networking connection as they establish their professional careers in Chattanooga and the surrounding counties. We are grateful for all the work our pro bono attorneys do. The outcomes they achieve for our clients are beyond what most of them would have ever hoped for in their situation. It is life-changing work for those who would have never received it otherwise. Though we have a lot of support for pro bono, we still have over thirty cases that need representation in the Chattanooga area, and I’m sure even more in the Knoxville office. I encourage all attorneys to reach out to their local Legal Aid and see if there are any cases that you would be willing to take. To check out cases that are currently available on the Pro Bono Matters section of our website go to www.laet.org. We truly appreciate whatever time or assistance you can provide.
Upcoming Clinic Opportunities:
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Legal Advice For Veterans:
In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. Phone advice options available.
Wed. August 11 (12:00noon – 2:00pm) Wed. September 7 (12:00noon – 2:00pm)
To sign up, please use the form on the KBA Website or email ctorney@laet.org.
Saturday Bar Advice Clinic:
In person at the Legal Aid Office at 600 W. Summit Hill Drive in Knoxville. Phone advice options available.
Sat. September 11 (9:00am – 12:00noon) To sign up, please email ctorney@laet.org
August 2021
TELL ME A STORY By: Hon. Timothy W. Conner Presiding Judge Workers’ Compensation Appeals Board
THE PEOPLE I MET AND THE RELATIONSHIPS I DEVELOPED ALONG THE WAY Editor’s Note: We are always interested in hearing from attorneys whose path has led to an interesting or unexpected place. This month’s author, Judge Timothy W. Conner, caught our eye because he holds a position that didn’t exist when he started his legal career: Presiding Judge of the Tennessee Workers’ Compensation Appeals Board. Below, Judge Conner explains how he went from being an aspiring aerospace engineer to heading an appellate tribunal. I was born and raised in Knoxville to parents who knew the importance of hard work and determination. After an honorable discharge from the U.S. Army, my father began working for a trucking company, where he stayed for 33 years until his retirement. My mother graduated from high school, had her first child at 18, raised four children, and worked full time for almost 30 years at a local hospital. They instilled the values of perseverance and loyalty in my three siblings and me. During my freshman year at Farragut High School, I took a speech class to satisfy one of my elective requirements and the teacher took a special interest in me. She encouraged me to join the school’s forensics team, which sent teams to speech, debate, and drama competitions. Although I was much better at speech than drama, I participated in drama by using my piano skills to accompany high school musical productions. My teacher’s passion for public speaking and drama and my involvement in those high school programs were instrumental in me developing the skills I would rely on later in life. As I considered my options for college, I knew I wanted to experience a different part of the country and was determined to pursue a career in aerospace engineering. As a result, I chose to attend Boston University’s College of Engineering. I left home at the age of 17, flew to a large city I had never visited, where I knew no one, and embarked on my college career. Although I did not know it at the time, I later learned that my parents had taken out a second mortgage to help pay my tuition. They did not think twice about sacrificing to help others; that is another virtue they instilled in my siblings and me. It took exactly three weeks of my first-year physics class to make me re-think my career path. By the second semester of my freshman year, I had transferred to BU’s College of Liberal Arts and changed my major to Political Science. I graduated from BU cum laude in Political Science with distinction in International Relations. During my senior year, I attended a career symposium where the Wake Forest School of Law Admissions Director was the featured speaker. Her enthusiastic advocacy of legal careers made quite an impact on me. After graduation, I returned to Knoxville for a gap year, working as a server at Calhoun’s On the River, but I had already decided to apply to Wake Forest for law school. During my first year at Wake Forest, I won the 1L Moot Court competition and was invited to join the Moot Court Board. I competed with Wake Forest’s National Moot Court August 2021
team my second and third years, discovering a particular love of appellate advocacy. As my law school career was coming to a close, I had to decide whether to stay in North Carolina or return to Tennessee to practice law. During my gap year, I had met the girl who would eventually become my wife. Because both of our families were in Knoxville and I knew she wanted to return to Tennessee, I decided to apply to law firms throughout East Tennessee and was eventually offered a position with a Chattanooga firm (now known as Leitner, Williams, Dooley & Napolitan). Two years later, when the firm decided to expand, I was given the opportunity to move back to Knoxville and help open a new office. During the early years of building that new office, the firm had an active and growing workers’ compensation practice. My colleague at the time was not a fan of worker’s compensation law, so he and I agreed to a division of labors where I primarily handled the workers’ compensation cases and he primarily handled the general liability cases. As new attorneys joined our office, I headed up the workers’ compensation section and he led the general liability section. I became a Member of the firm after five years, remaining there for 22 years in total. In 2014, after the Legislature dramatically overhauled Tennessee’s workers’ compensation system, I made one of the most important decisions of my life. Although I loved the people I worked with, and I felt enormous gratitude to a firm that had given me important opportunities throughout my career, the practice of law had begun to wear on me. When I read about the creation of the Workers’ Compensation Appeals Board, it felt like an opportunity I could not pass up. I had significant experience in workers’ compensation law, I loved appellate advocacy, and I enjoyed the academic aspects of the practice of law. I was extremely fortunate to be one of the candidates selected by Governor Haslam to serve as a judge on the inaugural Appeals Board and am still serving in that capacity today. I am not a fan of the term “luck,” but I have been extremely fortunate throughout my career. The most important factors that led me to where I am today are the people I met and the relationships I developed along the way. I had several outstanding teachers in high school, college, and law school. I was fortunate to learn to practice law under the tutelage of some amazing trial attorneys. The colleague with whom I established and grew the firm’s Knoxville office, Dana Holloway, is now a well-respected mediator and remains a great friend. Becoming a judge was not one of my goals, but it is the culmination of several important life choices, and it was made possible by the opportunities presented to me by others. As a judge, it is my job to hear and consider both sides of an argument. As a society, we need to return to the idea that those with different beliefs can be colleagues and friends, and we can discuss those beliefs in a respectful manner that recognizes the legitimacy of differing viewpoints.
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