DICTA.December 2016

Judicial News: Continued State Court Efforts toward Efficiency and Case Resolution . . . Page 7 Management Counsel: Law Practice 101: Mental Health Issues Affecting the Legal Community . . . Page 13

A Monthly Publication of the Knoxville Bar Association | December 2016

CHALLENGING ‘MARRIED ON SUNDAY, BUT FIRED ON MONDAY’: RECONSIDERING TITLE VII AND SEXUAL ORIENTATION DISCRIMINATION AFTER OBERGEFELL V. HODGES

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DICTA

December 2016

In This Issue

Officers of the Knoxville Bar Association

December 2016

Cover Story

President Wayne R. Kramer

President Elect Amanda M. Busby

Treasurer Keith H. Burroughs

Immediate Past President Tasha C. Blakney

Secretary Wynne du Mariau Caffey-Knight

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

Rachel P. Hurt Carrie S. O’Rear M. Samantha Parris Cheryl G. Rice Keith D. Stewart

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

The Knoxville Bar Association Staff

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Challenging ‘Married on Sunday, But Fired on Monday’: Reconsidering Title VII and Sexual Orientation Discrimination After Obergefell v. Hodges

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President’s Message

Critical Focus

Tammy Sharpe CLE & Sections Coordinator

Wendy Williams Membership & Operations Coordinator

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Lacey Dillon Programs Administrator

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

Tracy Chain LRIS Administrator

Brittany Headrick LRIS Assistant

Volume 43, Issue 11

Dicta

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

All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment).

Exceptions to this policy must be cleared

by KBA Executive Director Marsha Watson (522-6522).

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

December 2016

Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Executive Editor Executive Editor Editor

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

Heidi A. Barcus Melissa B. Carrasco Casey S. Carrigan Elizabeth B. Ford Joseph G. Jarret F. Regina Koho David E. Long

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

Managing Editor Marsha Watson

KBA Executive Director

DICTA

Judicial News

Continued State Court Efforts

Toward Efficiency and Case Resolution

Practice Tips

Reasonable Attorney Fees in Probate Matters

Sixth Circuit Renders En Banc Decision in As-Applied Second Amendment Challenge to Federal Firearms Prohibition

Mental Health Issues Affecting the Legal Community

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Marsha S. Watson Executive Director

Time is Like an Ever Rolling Stream

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21

Legal Update

Management Counsel: Law Practice 101 Schooled in Ethics

The Potential Ethical Pitfalls of

Communications with Former Employees

Conventional Wisdom 6

Attorney Profile

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Outside My Office Window

KBA President-Elect Amanda Busby The Fire Stick - an Ode to Friendship

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19

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27

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4 18 18 26 27 29 30 31

Hello My Name Is

Sarah Booher

Tempus Fugit - Time Flies

On Butterfly Wings

Well Read

Will Trump Make the Legal Industry Great Again?

Long Winded

A Starting Point

Guilty Pleasures

Turkeys, Trees and Treats

Bill & Phil’s Gadget of the Month

Google Pixel Phone

Lawyer Hobbies

Holiday Traditions

Legal Mythbreakers

Nonsuits and Contracts

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

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event

EVENT CALENDAR & SECTION NOTICES

Section Notices

calendar

There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current.

Alternative Dispute Resolution Section The ADR Section has monthly CLE programs planned through the end of the year. If you have program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Dana Holloway (643-8720).

Bankruptcy Law Section The Bankruptcy Section will meet quarterly. To have your name added to the section list, please contact the KBA office at 522-6522. If you have program topic or speaker suggestions, please contact the Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000).

Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to get involved, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148).

Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Headrick (524-8106) and Sarah Keith (215-2515).

Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs: Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123).

Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. For more information about the section, please contact Section Chairs LeAnn Mynatt (549-7000) or Jimmy Wright (637-3531).

Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040).

Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Daniel Sanders (215-2327).

Juvenile Court & Child Justice Section Members of the KBA are invited to join the KBA’s Juvenile Court & Child Justice Section, formerly the Unmet Legal Needs of Children Committee. For information about the Section, please contact Section Chair Joanie Stewart (215-2515).

Senior Section The KBA Senior Section will meet next on Wednesday, December 14, 2016 at Calhoun’s on the River. The program is “Tales from an Ancient Mariner” and will feature Ken Beyer, a WWII Veteran. Ken will share stories of his time on the water and his experiences on a Q-Ship during the war. The luncheon will be held from 11:30 a.m. to 1:00 p.m. See page 22 for program details.

If you have suggestions for speakers, please contact Chair Wayne Kline at 292-2307.

Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and CLE. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Heather Anderson (934-4000) or Tripp White (712-0963).

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DICTA

December n2

Ethics Bowl

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Barristers Annual Mtg & Elections

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Lunch & Learn

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Judicial Committee

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Annual Meeting & Elections

n 12 ADR Section CLE n 13 Criminal Justice Section CLE n 13 Professionalism Committee n 14 Senior Section n 16 Legislative Breakfast n 16 Family Law Section CLE n 19 Video Replay CLE n 19 Diversity in the Profession Committee n 20 Video Replay CLE n 21 Video Replay CLE n 22 Video Replay CLE n 23 Video Replay CLE n 28 Video Replay CLE n 29 Video Replay CLE n 30 Video Replay CLE

January n 10 Professionalism Committee n 12 Lunch & Learn n 12 Judicial Committee n 16 Diversity in the Profession Committee n 18 Board of Governors Meeting n 24 Bar Leaders Planning Meeting n 31 CLE Committee Meeting

KBA Annual Meeting & Elections December 9

December 2016

PRESIDENT’S MESSAGE By: Wayne R. Kramer Kramer Rayson LLP

TIME IS LIKE AN EVER ROLLING STREAM

As I rapidly approach the end of my year as President of the short, we must “do good in the best possible way.”

Knoxville Bar Association (the “KBA”) I am reminded of the words from

Yes, time and our profession are like an ever rolling stream. Every Isaac Watt’s great hymn “O God, Our Help in Ages Past,” that “time day brings something new and that something new will likely require is like an ever rolling stream.” And so it has been with 2016. It is hard letting go of something old. But at our core, what we do will not change for me to believe an entire year has passed since I began my tenure as and our “calling” will remain. That will be true whether we wear sport President. It seems like only yesterday when this adventure started in the shirts and blue jeans to work or whether we dress in a more formal main assembly room of the City/County Building. It has been a privilege attire. We must never lose sight of that reality. If we get caught up in and a pleasure to serve as the KBA President. I have learned many things, the idea that speed is more important than counseling, communication met many new people and have been exposed to many new thoughts and by computer is better than interaction between human beings, and/or ideas. All of that has been very good. twitter messages are just as good as more thoughtful decision making,

As I reflect over this past year, and while I suppose nothing “earth we will be heading down a slippery slope and moving away from the shattering” has occurred, (my dream of having all attorneys return to a roots which make us strong. We cannot and should not abandon the much more formal attire having never gained any traction), I believe it fundamental principles of the legal profession. As I have said many times has been a positive year for the KBA and its members. this year, we stand on the strong shoulders of those e do not

We spent a day in April (the Law Expo) who have gone before us and we must provide strong examining the current status of the legal profession, shoulders upon which those who come after us can stand practice law where we are headed in the 21st Century with alone, and we and from which they can gain strength and knowledge. technology, marketing, delivery of legal services, and all Tell the stories, share the experiences and celebrate are better attorneys when the community. If we do all of those things, then years of the challenges that lie ahead. Throughout the year, we participated in meaningful service projects where we we work together. from other members of the KBA will be here helping had an opportunity to share with each other and make individuals with their legal issues, doing justice and a difference for various people and organizations here contributing to the public good. And our little part of in our community. In September, we heard Doug Jones, the world will be better for it. the attorney who successfully prosecuted the 16th Street Baptist Church

I thank each of you for the opportunity to have served as President bombers in Birmingham, challenge us as lawyers to stand up and speak of the KBA. It has been an honor. I have made new friendships, I have out when we see injustices. Just recently, we celebrated diversity with seen lawyers at work and at play. I have seen lawyers as advocates and I local business leaders, representatives of the City of Knoxville, along with have seen lawyers share. I have been touched by many of you in 2016, young and more seasoned members of the KBA. We hiked together, and for that I am extremely grateful. picnicked together and have otherwise shared in numerous activities both socially and professionally. And finally, at our recent memorial service, we reflected upon and celebrated the lives of members of the Bar who, in the words of former Justice Gary Wade, have now “crossed over the bar.”

In these pages, I have tried to consider what it means to be a member of the Knoxville Bar Association. I have revealed my thinking that few things are simple and that we are called upon to be both attorneys and counselors at law. Discussion has taken place relative to our obligation to promote justice and the public good, the significant dimensions of the law, the power of the language we use, the need to remain human in a world more and more dominated by technology, and the idea that for everything there is a season. If there is any theme I have tried to impart throughout the year, in this column and elsewhere, it is the notion that “we are all in this together.” We do not practice law alone, and we are better attorneys when we work together.

In a few short days, the calendar will turn to 2017, and a new year will begin. There will be new leaders and new followers. There will be new members of the Bar and there will be more who cross over the bar.

But there will also be a constant, and that constant is the importance of the legal profession and our responsibility to it as attorneys. The needs of our clients will not fade. That grass will never wither. Individuals and our community will continue to need our expertise, our counseling and our energy. We have roots which run deep, and we must never forget that.

We must stand firm even against hurricane force winds that are blowing against our profession. We must be vigilant, caring, and work hard. In

W

December 2016

DICTA

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AT TO R N E Y P R O F I L E By: Adrienne L. Anderson Anderson Busby PLLC

KBA PRESIDENT-ELECT AMANDA BUSBY

In December 2016, my friend and business partner Amanda Busby will become the President of the Knoxville Bar Association. We could not ask for a more thoughtful, generous, intelligent, and well-rounded leader for our bar association.

Amanda was born and raised in Jackson, Tennessee. Her parents, John and Bonnie McCutchen, taught Amanda and her two sisters the value of a good education and involvement in their community. Mr. McCutchen owned a chain of gas stations and convenience stores, and Amanda learned at an early age the practicalities of operating a business.

As a teenager, Amanda excelled academically and played varsity tennis.

As an adult, Amanda consistently accepted challenges and responsibilities greater than those typically chosen by her peers. Amanda put herself through college working as a salesperson, buyer, and assistant manager of a jewelry store; and trained through the Gemological Institute of America to analyze diamonds and gemstones. In 1993, Amanda graduated magna cum laude from Lambuth University in Jackson with a BBA in Marketing. Amanda then enrolled in the joint JD/MBA program at the University of Tennessee, committed to obtaining graduate degrees in both business and law.

In the JD/MBA program, Amanda excelled academically. She was a Research Editor for the Tennessee Law Review, a member of the Order of the Barristers, and a member of the first place team in the Advocates’ Prize Moot Court Competition. In the UT College of Business, Amanda was a graduate assistant to Dr. Ernest R. Cadotte. Amanda served as an intern for Hon. James D. Todd of the United States District Court for the Western District of Tennessee, and as a law clerk and summer associate for Rainey, Kizer, Butler, Reviere & Bell, PC in Jackson, and for Kramer Rayson LLP in Knoxville.

In Amanda’s last year in the joint JD/MBA program, she became the primary caregiver for her mother, who was battling lung cancer.

Amanda is thankful that she was able to share her home and her time with her mother, and I am certain that Mrs. McCutchen was happy and proud to watch her daughter succeed in her academic pursuits.

Mrs. McCutchen lived with Amanda in Knoxville until her death in December 1997.

In May 1998, Amanda obtained her MBA in Finance and her JD with a concentration in Business Transactions. She joined Kramer Rayson as an associate attorney, and working with Wayne Kramer, Tom Hale, and Warren Gooch, she quickly developed skills representing clients in business and real estate transactions, trusts and estates, and healthcare law matters. Amanda became a partner in Kramer Rayson in 2005.

In 2009, Amanda and I formed Anderson Busby PLLC. I directly benefited from Amanda’s business acumen, attention to detail, and common sense as she guided our firm through the intricacies of

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startup and development, including the recent purchase of our office condominium. Amanda is the businessperson that most lawyers wish that they were when operating a law firm.

In nearly twenty years of practice, Amanda has developed expertise in the areas of healthcare, business transactions and litigation, real estate, mergers and acquisitions, corporate governance, wills and estate planning, and probate. She has a unique ability to understand the client’s goals and needs, to formulate a plan to achieve those results, and to visualize how each piece of a transaction or agreement fits together to form a fully functioning whole. Amanda has been honored by the Greater Knoxville Business Journal as a “Top 40 Under 40” business leader, and she was a member of the TBA’s Leadership Law Class of 2014.

Amanda’s global approach to her clients’ interests reflects Amanda’s approach to life – as a multi-faceted journey with varied opportunities and challenges to be embraced and experienced. Amanda’s world is the intersection and balancing of family, service, the practice of law, and the enjoyment of life.

Like all lawyers, Amanda faced challenges. As a divorced single mother, Amanda learned early in her career to manage her time in order to raise her son Joseph while developing her law practice and contributing to her community.

When Amanda and Scott Busby married in 2007, they blended their families and are jointly raising four children – Joseph, Jackson, Mabry, and Ben. The Busbys’ organization and coordination of the requirements and schedules of four children’s separate academic, social, and athletic activities, Amanda’s law practice, Scott’s architecture practice, their community service commitments, and their relationships with their extended families, would put any air traffic controller to shame.

Importantly, Amanda is FUN. She is a bright spot at KBA and community social events. Amanda and Scott play competitive volleyball twice a week through the City of Knoxville Parks and Recreation league. Amanda enjoys entertaining and hosts incredible parties, including the annual Busby Halloween Party. (See photo – I knew she was Wonder Woman, but didn’t know she had the dress).

A defining mark of Amanda’s character is her appreciation for, in her words, “the reward of helping people.” She provides pro bono legal services to individuals and charitable organizations. For more than fourteen years, Amanda has been an usher for the Episcopal Church of the Ascension, where she also served as a vestry member, a co-chair of the Stewardship Committee, a junior warden, and a senior warden.

Amanda was a founding board member of the Rocky Hill Elementary School Foundation and served on a number of charitable program committees for the Junior League of Knoxville.

Amanda has served the legal community for more than eighteen years as a member of the KBA’s CLE Committee, including eight years as its Co-Chair. She serves on the Executive Council of the TBA’s Health Law Section and is a member of the Physician Organizations Practice Group of the American Health Lawyers Association. She is a fellow of both the Knoxville Bar Foundation and the American Bar Foundation. Amanda has served on the KBA’s Board of Governors since 2011, and her enthusiasm for leading the KBA as President is a continuation of her commitment to our legal community. It’s going to be a great year for the KBA.

DICTA

December 2016

JUDICIAL NEWS By: Jason E. Legg Stone & Hinds, P.C.

CONTINUED STATE COURT EFFORTS TOWARD EFFICIENCY AND CASE RESOLUTION

As I began to think about this article, I decided to find a nice quiet space where I could brainstorm about the weighty issues facing the bar.

The office tends to be a bit hectic so I turned to the luxurious confines of my home office (a.k.a the kitchen table). As I opened my laptop and sat down to write, I was immediately interrupted by my 11 year old triplets who were engaged in a heated “raslin”1 match over my iPhone.

The tween years have hit my household hard and the kids have become obsessed with the idea of owning a smartphone. In fact, the kids recently began issuing warnings that my failure to purchase smartphones will likely stunt their technological growth and cause irreparable harm. I asked my wife “where did they come up with this stuff? I never promised them a smartphone!” My wife explained that several of their friends already have smartphones. It appears that my kids’ expectations are being set by what they experience in their daily lives.

There is no denying that music, TV shows, movies and social media aimed at tweens play a major role in shaping their young lives and in forming their expectations of the world. In most tween entertainment all of the “cool kids” own smartphones and they’re not afraid to use ‘em. The expectations and demands of my children’s generation are vastly different from anything I could have ever imagined growing up in the 1980’s.

This led me to think about practicing law in the modern era and the heightened level of expectations and demands that clients place upon attorneys and the judicial system. Clients come to us with builtin expectations, some of which are founded on their own day-to-day experiences. Many clients are fed a daily dose (some might argue an overdose) of instant gratification and immediate responses from social media outlets like Facebook, Twitter, Instagram and Snapchat. For better or for worse, modern life moves at a lighting-fast pace. Clients expect that attorneys and the court system will keep up with this pace when handling their legal problems. Some have expressed concern that if attorneys and the courts do not evolve and change to become more efficient, clients will lose faith in our legal system. The stakes are high and the very future of our democracy may depend on how we resolve the issues of efficiency and speed in resolving cases.

Identifying the difficult challenges and issues faced by the legal system and the pitfalls that lie ahead are meaningful steps in the right direction. Most all can agree that our society is in a constant state of evolution and that our legal system must also continue to evolve along with society. However, reaching a consensus on the best ways for our courts to meet modern challenges is still up for debate.

Some scholars argue that in order to obtain increased efficiency in case resolution, the state courts must adopt rules of procedure that are much more in line with the Federal Rules of Civil Procedure.

Such changes would include mandatory use of status conferences and scheduling orders with set trial dates and discovery deadlines for all cases.

Those against such measures argue that the Tennessee Rules of Civil Procedure already provide for voluntary use of scheduling conferences and scheduling orders. Many attorneys and judges in fact already effectively use such rules in appropriate cases. They further argue that mandating use of such rules in all cases may actually have a chilling effect on litigation and discourage many from utilizing the state courts.

Others scholars argue that in order to reach higher rates of efficiency in resolving cases, the courts should adopt time standards which would provide guidelines to the trial judges regarding the length of time certain categories of cases should take to reach resolution. Those in opposition to this idea argue that each case presents its own unique set of facts and challenges and that trial judges should not be handcuffed by a set of arbitrary deadlines. They further point out that trial judges are elected December 2016

by their constituents and they argue that trial judges should be afforded freedom and flexibility to manage their dockets as they see fit.

Still others argue that the current rules are adequate and the focus should be on better education efforts for attorneys and judges.

Proponents of these measures argue that we need to educate attorneys and judges on the importance of prompt case resolution and inform them of best practices while providing them with access to the tools necessary to carry out those best practices.2

While the debate over these proposed solutions continues, some courts have moved forward and taken action by revising local rules in an effort to address efficiency and case resolution. For example, on August 1, 2016, the Knox County Chancery Courts adopted Rule 24 of the Local Rules of Practice for Knox County Chancery.3 Among other things, this new rule provides that “[i]f no action has been taken in a case for a period of at least one (1) year, the Court may dismiss the case. At least thirty (30) days prior to dismissal, the Clerk and Master shall send written notification to attorneys of record and to each unrepresented party of the pending dismissal.” It is important to note that the language used in Rule 24 is “may” and not “shall” so dismissal of cases is not mandatory.

Rule 24 went into effect on August 1, 2016 so the practical impact of this rule is not yet clear and several questions abound. Will it be used as a tool to simply clean up old, dormant cases that just need final orders?

Will it become a minefield of potential liability for attorneys who do not take “action” on a case within one year? Because the term “action” is not defined it is unclear what steps practitioners must take in order to prevent dismissal of a case. Are attorneys required to file some type of pleading within one year? This could be particularly interesting given the fact that most discovery is not filed in Chancery Court.4 If attorneys do not satisfy the “action” requirement through court filings, then how will the courts monitor whether attorneys have taken any “action” on a case?

How will this rule work when a Federal Bankruptcy Stay is issued? The answers to these questions and many more will likely unfold as Rule 24 is utilized by the Knox County Chancery Courts in the coming months.

While legal scholars debate these important issues, I am faced with my own lofty debate. Does the financial cost of buying 3 smartphones outweigh my desire to avoid the pain of tween iPhone drama? I may need to hire a lawyer.

Also known as wrestling for those who do not speak the native language.

The scope and length of this article precludes an in depth analysis of all potential solutions that have been proposed. The author does not seek to offer opinion or weigh the pros and cons of the various recommendations. Instead, the purpose of this article is to merely present the issues for further investigation and discussion among members of the bar.

3 RULE 24. CASE MANAGEMENT (A) DISMISSAL OF DORMANT CASES. If no action has been taken in a case for a period of at least one (1) year, the Court may dismiss the case. At least thirty (30) days prior to dismissal, the Clerk and Master shall send written notification to attorneys of record and to each unrepresented party of the pending dismissal.

(B) NOTICE OF ENTRY REQUIRED. If the case is dismissed pursuant to this Rule, the Clerk shall mail a copy of the order dismissing the case for lack of prosecution to attorneys of record and to each unrepresented party.

(C) CURRENT ADDRESS ON FILE TO BE USED. For all purposes of sending notice and copies of orders pursuant to this Rule, the Clerk shall use the mailing address for attorneys of record and each unrepresented party then current with the Court, given or provided by Local Rule 4, and shall not be responsible for further investigating the whereabouts of any party or attorney.

4 See Rule 8 of Local Rules of Practice for Knox County Chancery.

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

Jr.

THE FIRE STICK AN ODE TO FRIENDSHIP

The ground was still wet with dew. I looked down the fairway trying to envision my shot. The stakes were huge. When my new driver struck the ball, it rose against a late-summer sky and gently faded over the trees that stood at the corner of the dog-legged par 5 landing safely in the fairway. “Good one,” my competitor said. It was his common compliment - short, to the point. There would not be much conversation during the round. This wasn’t our first rodeo. The game was on. He teed his ball, and after he struck it, Chris Leach’s drive flew mine by 10 yards. We picked up our golf bags and walked stride for stride down the fairway. It was 1988. I was 19. He was 17. I was starting my sophomore year at UT. He was the star senior quarterback at Farragut High, bathed in the glow of all that befits the age and position.

Because of my close relationship with my brother, John, his friends became my friends. My friends became his friends. Chris and my brother were in the same class. As kids, we all played golf, tennis, billiards - well, anything - together. Chris and I were usually pitted against one another, inevitably for money. I like to think I taught him how to gamble, but in hindsight, I think it was as much a genetic predisposition as hair or eye color.

We often played for large sums of money, despite the fact we didn’t have access to more than pocket change. But, on that day, we played for something more - The Fire Stick. The club, manufactured by Wilson, was the hottest driver of the day. The beautiful and intimidating red fiberglass shaft ran down into a titanium/metal head. Every golfer wanted a Fire Stick in their bag, and I was one of the fortunate few. My father had given it to me the week before as a gift. It was a good club, but it was also something else, something players like Leach and I couldn’t resist - flash and status. Bad golfers would look silly trying to play it. People paid attention when it was carried onto the driving range. A friend of my father’s approached me at my grandmother’s funeral, extended his hand and said, “Sorry about your grandmother,” then leaned in, “How do you like that Fire Stick, kid?”

I’d lost to Leach the day before and he came up with the idea that, instead of having me pay, he wanted to play for the Fire Stick.

“Absolutely,” I said without hesitation. Money players don’t hesitate or turn down a challenge. It was a beautiful day. We strolled down the fairways of Fox Den Country Club with the confidence that tomorrow was promised and the world belonged to us. We were good. We knew it. Our bodies were lean. The inevitable tragedies and storms of life had never earned proximity to us. We were boys playing a game we loved. It was a 9-hole match. We battled back and forth like it was the Ryder Cup. It is always serious between friends upon the field of battle. It came down to the last hole. When I tapped in for par, we shook hands and walked to the clubhouse, laughing and reliving the match that resulted in my retention of the desired Fire Stick.

The years slid by faster than those infinite summers of my youth.

Chris would become my little brother in the fraternity. He stood with me at my wedding to Cheryl. I toasted him at his. When a money game was being put together, it has to include Pryor and Leach. We’ve traveled to football games and multiple locations to play golf with my brother and other friends. And, then he and his wife gathered with many one fall afternoon, outside the emergency department of Park West Hospital, awaiting word about my wife’s condition after she’d been rushed there from our home. When I exited to deliver the news of her death, Leach

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was the first. The first face I saw. The first friend to rise. The first person I embraced. The first of many to come unglued with me, as the eye of the hurricane arrived in defiance of our presumed exemption from such things. Long before that terrible day, we were friends and rivals. The storm transformed us into brothers. A Storm turns a friendship into something greater, something deserving of its own temple.

It has been 28 years since we first played for the Fire Stick. The club has long been obsolete. But it is still around. I looked over at Chris’s bag this past April to see its red shaft and gray titanium head protruding as we stepped onto the first tee in Destin, Florida. It has been our tradition, our temple if you will, for 21 years, that the first day of our big golf trip is the day we annually renew our competition for the relic. It hasn’t touched a golf ball for a quarter of a century. At the end of the tee box, away from the others, he approached me for the ceremonial conversation.

“I see you brought it with you,” I said. He smiled. During the past year he’d had his picture taken with it on his travels, texting the image to me with very little if any caption, each photo serving as both a good-natured jab and a nod to the institution of our brotherhood.“We’ll play straight up as usual?” I asked. That is how it has always been, how it shall always be regardless of the fact his game is better. The winner always keeps the Fire Stick for the next year. “Alrighty. Good luck,” he said, winking as he turned to walk away, still the cocky kid I taught to gamble on the golf course, the one who would roll out for a pass on fall Friday nights and then keep it just to run someone over. He is the same cocky kid that never gave up the ball on the basketball court and the same confident man who told me everything was going to be alright after he and five others carried my Cheryl to her place on the hill where the leaves still fall with a certain grace this time of year.

I leaned over and placed my ball on the tee then struck a slow-rising shot that drew slightly around the fairway bunker and into the plush green fairway. “Good one,” he said. A Good One, indeed.

DICTA

December 2016

PRACTICE TIPS By: Tom

R. Ramsey III Ramsey Hill LLC

REASONABLE ATTORNEY FEES IN PROBATE MATTERS

My twenty-eight year law career has been focused primarily on estate planning and probate. So when Marsha Watson asked me to write an article about Reasonable Attorney Fees in Probate Matters I was happy to comply.

I have been blessed over my career to have appeared before many learned and knowledgeable Chancellors and two of the best and most well respected Clerk and Masters that our legal community has known.

For the younger probate lawyers out there you may or may not know that our esteemed and very well respected Chancellor John Weaver once served as Clerk and Master. Much of what I know today emanates from my very early experiences appearing before the former Clerk and Master and our current Clerk and Master, Howard Hogan. Of course the very first thing I learned so many years ago was that a fee payable by the estate must be approved and that the Clerk and Master can only hear fee petitions upon an Order of Reference from one of the Chancellors.

Usually the Chancellors are readily amenable to signing the order because it gives them one less thing to do. Once the Order is entered the Clerk and Master then can determine if the fees are reasonable, necessary and inure to the benefit of the estate.1

I have found that one of the most difficult areas of a probate lawyer’s practice is to explain to both clients and sometimes other lawyers that probate property only consists of property owned solely by the decedent on the day of his or her death. Consequently, if you want to get paid out of estate assets the fees must be associated only with the probate assets and they must be reasonable and inure to the benefit of the probate property. However, a semi recent Court of Appeals decision authored by now Supreme Court Justice Holley M. Kirby has clarified some areas associated with approval of fees that were once somewhat muddled.

In the Estate of Sue Bratton Thompson, 2 a Maury county lawyer filed a fee petition for fees based on a local rule allowing for payment on a percentage basis. He was basically asking the court to approve a fee of $ 50,000 on a $ 3,000,000 estate and cited a local rule which allowed for attorney’s fee of one to five percent. The fee petition was objected to by the beneficiary of the estate on the basis that the fees were excessive. The petition also asked for fees associated with the sale of real estate which was a non-probative asset; for fees associated with consulting with the tax attorney for the filing of the Tennessee inheritance and Federal estate tax returns and for fees associated with the preparation of his fee application.

The trial court approved the petition and awarded $50,000.00 which included the tax attorney’s fees.

On appeal, the court first considered the fees based on the local rule allowing for fees based on a percentage basis and ruled that the Maury County local rule is “antithetical to RPC 1.5 and that it invites the trial court to use a rule of thumb instead of the individualized weighing process mandated by the Supreme Court or other substantive law…..In doing so the trial court stray[ed] beyond the applicable legal standards.”3

The court then went on to apply the RPC 1.5 factors in order to determine whether the fee was unreasonable and an abuse of discretion.4 Following a lengthy discussion and thorough application of the factors, the court ultimately held that the fee of $39,215.50 was well beyond the range of reasonableness and was an abuse of discretion by the trial court.

The court then went on to consider as to whether the fee request was so clearly excessive as to constitute an ethical transgression which would December 2016

preclude the awarding of any fee at all following the application of DR 2- 106. While the court ending up concluding that “ the effort to collect the fee does not rise to the level of an ethical transgression of a flagrant sort” so that no fee should be awarded “we find that a fee in the amount of $8,000 is a reasonable fee.”5

Its interesting also to note that the court made other rulings specifically providing that fees are not allowable for work associated with non-probative property (i.e. request for payment for hours expended regarding the sale of real estate which was a non-probative asset); for fees associated with the preparation of fee requests; and fees associated with work for which an expert was hired to do (i.e. the hiring of a tax attorney to prepare the federal and state inheritance returns).

In conclusion, in light of the holding in Thompson many factors must be considered in seeking reasonable attorney fees in probate cases.

The fees requested must be reasonable, necessary and inure to the benefit of estate property and the fee requests must fit within the parameters of RPC 1.5 and DR 2–106. Finally, the fee requests must comply with the Knox County Chancery local rules which provide as follows: All applications for attorney’s fees and expenses shall be supported by a statement, verified by the attorney under oath, setting forth in detail the basis for the fees sought. The criteria in Tenn. Sup. Ct. R. 8, RPC 1.5, will control the awarding of the attorney’s fees.

So, if you skipped over most of this article and just want the bottom line, here it is: figure out what the estate property is; write down everything you do; read Tenn. Sup.Ct. R. 8, RPC 1.5, Tennessee’s Disciplinary Rule (“DR”) 2–106(B) and Local Rules of Practice Knox County Chancery Court (effective May 1, 2009) and finally hope nobody files an objection.

1 An Administrator is entitled to a reasonable compensation for their services and to payment from the Estate for a reasonable expenses incurred in a good faith for the exclusive and necessary benefit of the Estate. In Re: Estate of Wallace, 829 S.W. 2d 696, 700-701 (Tenn. Ct. App. 1992).

2 No. M2011-00411-COA-R3-CV (Tenn. Ct. App. Mar. 14, 2012).

3 Id. at page 8.

4 RPC 1.5 Factors: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; (8) whether the fee is fixed or contingent; (9) prior advertisements or statements by the lawyer with respect to the fees the lawyer charges; and (10) whether the fee agreement is in writing.

5 Estate of Sue Bratton Thompson at 21.

DICTA

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2017 Annual Meeting Notice

The Annual Membership Meeting will be held on Friday, December 9, 2016 at 8:30 a.m. at the Main Assembly Room of the City County Building. A continental breakfast will be available at 8:00 a.m. in the hallway outside of the Main Assembly Room.

The Nominating Committee for the Officers and Board of Governors of the Knoxville Bar Association for the upcoming year is comprised of: Amanda Busby, Chair, Loretta Cravens, Wade Davies, Stanton Fears, Chris McCarty, Amanda Morse and Cheryl Rice.

The Committee, having met, recommends that the following, all of whom are members of the Knoxville Bar Association, be placed in nomination at the Annual Meeting:

President-Elect: Keith H. Burroughs Treasurer: Wynne du Mariau Caffey-Knight Secretary: Hanson R. Tipton

There are four open positions on the Board of Governors. Three of the Board of Governor positions will be for three-year terms.

The fourth is the one-year term government/public sector position. Nominations to fill the open positions on the Board of Governors are the following: Three-Year Terms:

Charles E. Atchley Jr.

Kathryn St. Clair Ellis

Stephen Ross Johnson

Mary D. Miller Courtney Epps Read Edward G. (Tripp) White III

Government/Public Sector Position:

Dwight L. Aarons

According to Article VI, Section 1, of the KBA By-Laws: “Nominations may also be made from the floor during the Annual Meeting by any member in good standing.”

Pursuant to the Bylaws change approved at the Annual Meeting in 1996, members are permitted to vote by absentee ballot. The provisions are included at the bottom of this page.

During the Annual Meeting, the membership will be requested to vote on a change in the KBA dues structure. The KBA Board of Governors has recommended a dues increase in the amount of $10.00 per member, bringing the annual membership dues to $145.00 for those licensed less than five years and $195.00 for those members licensed five years or more. Members in special dues categories (U.T. Professors, Court Clerks, Government & Public Sector Lawyers) will pay $145.00 in annual membership dues. In accordance with Article III, Section 1, “Each member shall pay to the Association in advance annual dues in categories and amounts as shall from time to time be recommended by the Board of Governors and approved by the members of the Association.” The last dues increase occurred in 2012.

All judges have been requested to delay court until 10:00 a.m. on the morning of December 9, 2016.

Amanda Busby, Chair, KBA Nominating Committee ABSENTEE BALLOTS VOTING IN THE KBA ELECTIONS Any member in good standing who personally comes to the offices of the Knoxville Bar Association during regular business hours on any of the ten (10) working days immediately preceding the day of the Annual Meeting will be permitted to vote. The member must first file a written form making oath that he or she will not be in town or otherwise be unable to attend the Annual Meeting. Then the member will be permitted to cast an absentee ballot for such officer or board positions as may be contested.

KBA Office Regular Business Hours: Monday - Friday 9:00 a.m. - 5:00 p.m.

10 Working Days Prior to the Annual Meeting: November 23 - December 8, 2016 Knoxville Bar Association, 505 Main Street, Suite 50, Knoxville TN 37902. PH: 865-522-6522 FAX: 865-523-5662 www.knoxbar.org

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DICTA

December 2016

L E G A L U P DAT E By: Regina Koho Attorney, Tennessee Valley Authority, Office of the General Counsel1

SIXTH CIRCUIT RENDERS EN BANC DECISION IN AS-APPLIED SECOND AMENDMENT CHALLENGE TO FEDERAL FIREARMS PROHIBITION

This month, I revisit a case I highlighted in January’s “Legal Update” column, Tyler v. Hillsdale County Sheriff ’s Department, 775 F.3d 308 (6th Cir. 2014),2 which dealt with a Second Amendment challenge to 18 U.S.C. § 922(g)(4). This statutory provision prohibits a person who “has been committed to a mental institution” at some point in his or her life from obtaining a firearm. Because the challenger in the case, Clifford Tyler, had been briefly committed to a mental institution in 1986 following a difficult divorce, he was unable to purchase a firearm 25 years later.3 The district court determined that Mr. Tyler failed to state a claim based on the Supreme Court’s observation in District of Columbia v. Heller “that prohibitions on the possession of firearms by the mentally ill [are] presumptively lawful.”4 In 2014, a three-judge panel of the Sixth Circuit reversed. Notably, the majority analyzed § 922(g)(4) under strict scrutiny,5 which, as Judge Julia Gibbons pointed out in her brief concurrence, was not “the general trend” among the circuit courts to have considered such challenges.6 This analytical issue caused the court to take up the case en banc.

As I noted previously, oral arguments, held last October, did not give a strong signal on which way the case would come out. And the decision, not filed until September 15, 2016, and including eight opinions – a lead opinion, five concurring opinions, and two dissenting opinions – did not add an incredible amount of clarity.

Judge Gibbons authored the lead opinion and was joined in full by five judges. She began by rejecting the notion that “Heller itself provide[d] an answer to the constitutionality of § 922(g)(4)”7 because under the circumstances – where Mr. Tyler’s complaint and court filings suggested that he was “thirty years removed from a brief depressive episode” with no “intervening mental health or substance abuse problems since that time” – applying Heller “would amount to a judicial endorsement of Congress’s power to declare, ‘Once mentally ill, always so.’”8 Instead, she engaged in the court’s traditional “means-end” analysis, which required the government to provide “[s]ome sort of showing . . . to support Congress’s adoption of prior involuntary commitments as a basis for a categorical, permanent limitation on the Second Amendment right to bear arms.” This also required adopting a level of scrutiny. Judge Gibbons found intermediate scrutiny most appropriate because of the inherent risk presented by firearms, which warranted some deference to legislative decision-making in this area, and the fact that adoption of strict scrutiny “would invert Heller’s presumption that prohibitions on the mentally ill are lawful.”10

Other judges, such as Judge Alice Batchelder and Judge Jeffrey Sutton, did not agree that “tiers-of-scrutiny” analysis should apply. As Judge Batchelder put it, such analysis would allow “future cases [to] go from taking rights seriously to seriously taking rights.”11 Judge Sutton focused on the fluid nature of mental illness, contending that Congress could not deny Mr. Tyler his Second Amendment right without “giv[ing] him an opportunity to show that he has the constitutional right to own a gun, all through a process focused on him – not generalizations about ‘mental defective[s]’ or occupants of ‘mental institution[s].’”12 In Judge Sutton’s view, whether an individual had the ability to show that he or she was no longer mentally ill, not “tiers of review,” should be the key constitutional inquiry.13

Judge Karen Nelson Moore (in dissent), while also eschewing “tiers-of-scrutiny” analysis, thought Heller’s “presumption” would render § 922(g)(4) constitutional because the court had previously relied on it to uphold § 922(g)(1)’s restriction on felons’ possession of firearms.14 But assuming intermediate scrutiny applied, the dissent believed that the government had satisfied its burden by putting forth evidence linking individuals released from involuntary commitment with higher rates of suicide, mental illness-related relapses, as well as by establishing the “difficulty inherent in making individualized assessments of dangerousness based on a past history of mental illness.”15 Interestingly, December 2016

Judge Moore’s dissent, joined primarily by other Democratic appointees, was also joined by two Republican appointees – Judges John Rogers and Richard Griffin, who agreed that the restriction satisfied constitutional muster.16

It cannot be said that the court’s decision will necessarily aid the lower courts’ “struggle[] to delineate the boundaries of the right recognized by”17 Heller in the broader sense. The only thing it clearly established was that a majority of judges agreed, under the facts presented, that the case needed to be remanded because the government had not met its burden to justify the application of § 922(g)(4) to Mr. Tyler and that intermediate scrutiny – assuming the “tiers-of-scrutiny” analysis was appropriate – was the correct analytical framework.18 But the various opinions do highlight many interesting policy questions.

How do we best balance the rights of individuals who wish to exercise their Second Amendment rights with the rights of those who wish to keep firearms out of the hands of those who are, or could, pose a danger to the public by virtue of such ownership? Should the inherent dangerousness of firearms allow the government, with its limited resources, some leeway in casting a wider prophylactic net, as suggested

by Judge Moore, in attempting to strike this balance? Or, as Judge Sutton and others posited, do we flip the scales in favor of individualized determinations? And if the individualized approach is constitutionally required, what process would be due? Would a person have a right to an individualized determination immediately after being released from involuntary confinement or would they be disqualified from owning a firearm for a certain amount of time? What of the status of an individual who, although released from involuntary commitment, requires medication to avoid relapse?19

As the opinions highlight, these answers are not easy ones. And in the courts, as in the political realm, the answers often depend on who you ask.

Any opinions expressed in this article are those of the author and are not attributable to the Tennessee Valley Authority.

2 Regina Koho, Interesting Sixth Circuit Developments, DICTA, Jan. 2016, at 11.

3 Tyler, 775 F.3d at 313-14.

4 Tyler v. Hillsdale Cnty. Sheriff’s Dept., __ F.3d __, 2016 WL 4916936, at *1 (6th Cir. Sept.

15, 2016).

5 Tyler, 775 F.3d at 323. When strict scrutiny is applied, the government must meet a higher threshold—it must show that “a challenged law furthers a compelling interest and is narrowly tailored to achieve that interest.” Id. (internal quotation marks omitted).

Intermediate scrutiny requires that the challenged law “be substantially related to an important governmental objective.” Id. (internal quotation marks omitted).

6 Id. at 344 (Gibbons, J., concurring).

7 Tyler, 2016 WL 4916936, at *5.

8 Id. at *7.

9 Id. This analysis, adopted by the court in United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012), first asks “whether the challenged law burdens conduct that falls within the scope of the Second Amendment right, as historically understood,” Tyler, 2016 WL 4916936, at *7 (internal quotation marks omitted), and if so, analyzes “the strength of the government’s justification for restricting or regulating the exercise of Second Amendment rights,” id. at *9 (internal quotation marks omitted).

10 Id. at *9.

11 See id. at *22 (Batchelder, J., concurring in most of the judgment).

12 Id. at *24 (Sutton, J., concurring in most of the judgment) (second and third alterations in original).

13 Id. at *25 (Sutton, J., concurring in most of the judgment).

14 See id. at *28-29 (Moore, J., dissenting).

15 See id. at *30-33 (Moore, J., dissenting).

16 Judge Rogers joined most of Judge Gibbons’ lead opinion, but joined in the portion of Judge Moore’s dissent finding that the government had satisfied its burden under intermediate scrutiny. See id. at *28 (Rogers, J., dissenting).

17 Id. at *1.

18 Id. at *16.

19 Judge Helene White, in her concurrence, posed these and other questions. See id. at *16-17 (White, J., concurring).

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DICTA

11

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DICTA

December 2016

MANAGEMENT COUNSEL: LAW OFFICE 101 By: Christopher A. Hall Hodges Doughty & Carson, PLLC

MENTAL HEALTH ISSUES AFFECTING THE LEGAL COMMUNITY

The recent Presidential election provides a historically apt backdrop for the topic of mental health.

Many of us with 3 or 4 digit BPR numbers remember the episode which occurred in the 1972 Presidential election process involving Senator Tom Eagleton (D-MO). Sen. George McGovern (D-SD) selected Eagleton as his Vice Presidential running mate in their campaign against former Vice President Richard Nixon. Eagleton was a Harvard Law School graduate who had served as the Attorney General and Lieutenant Governor of Missouri prior to being elected to the U.S. Senate. Shortly after his selection, word leaked out that Eagleton had sought help and hospitalization for his depression on three separate occasions in St. Louis. In spite of McGovern’s promise to back Eagleton “1000 percent,” Eagleton shortly withdrew from the ticket at McGovern’s request.

At the exact same point in time that Sen. Eagleton sought help in a residential facility in St. Louis, my father did as well. I am extremely proud of him for ignoring the social stigma attached to obtaining help for mental health issues and seeking treatment anyway. He and Sen. Eagleton may have known each other.

I hope that, forty-four years later, our society has made sufficient strides in our understanding of mental health issues that seeking help for depression is no longer equated with a disqualifying event for public service or for the practice of our profession.

Our law offices, the court system and our interactions with other counsel provide an opportunity for us to observe instances in which someone may be suffering from one or more mental health issues. Indeed, we may suffer from these issues.

The most prevalent mental health conditions, at least according to the ads we see on prime time television, are depression, anxiety and bipolar disorder. An additional mental health condition which occurs with some frequency is post-traumatic stress disorder (“PTSD”).

This article does not address bipolar disorder or PTSD for lack of space to properly address these complex conditions.

The most common characteristics of depression are loss of interest in areas of life in which the sufferer has historically found pleasure (e.g. hobbies), low energy, a foggy demeanor, withdrawal from social activities and apathy. Other symptoms of depression can involve reckless participation in activities involving a high degree of personal risk (high risk sexual activities and chronic overspending and borrowing) and a general slovenly personal appearance and similar disorganization at work.

These behaviors sometimes serve as outward hallmarks of depression. Unless that condition naturally abates or is successfully treated, very serious consequences may await the afflicted person. In the case of depression, those adverse results can be loss of marriage or career or even suicide, which is the worst of all possible outcomes.

Anxiety can manifest itself in a variety of types and contexts. The most commonplace types of anxiety seem to be generalized anxiety disorder (“GAD”) and social anxiety disorder. The symptoms of GAD include an omnipresent and excessive concern (or fear) about a multitude of issues. One of the visible symptoms is constantly twitching one’s ankle. Other types of anxiety issues can include agoraphobia and specific phobias (e.g. public speaking). Anxiety can cause problems in the work arena, at home and in life generally. Anxiety can destroy the quality of one’s life if not treated.

Some depression and anxiety are quite natural and circumstantial.

It is fairly normal to experience depression as a result of a change for the worse in one’s personal relationships, professional status and health

or financial condition. Whether someone’s depression ultimately relents seems to be the key to determining whether the need to obtain help is critical as opposed to simply helpful. After experiencing an event giving rise to depression, a person may eventually recover and never have recurring bouts of depression. This is what some professionals refer to as circumstantial depression.

Sometimes, however, depression can occur chronically and with no precipitating event. This is frequently related to organic brain chemistry issues and will recur throughout one’s life in the absence of his or her obtaining professional help. Chronic major depressive episodes are a routine part of the lives of these types of people, and it is vital that they receive proper treatment.

Depression and anxiety can be co-occurring. They can similarly co-occur with substance abuse and can, in fact, be masked by some of the more obvious behaviors associated with alcoholism and drug addiction.

Many patients in alcohol and drug treatment facilities are determined to be “dual diagnosis” patients and they receive treatment for all issues while they are in residence.

The foregoing is an extremely concise summary of some of the more frequently occurring symptoms of depression and anxiety.

The most popular treatments for depression and anxiety in the mental health community includes cognitive behavioral therapy (“CBT”), other types of counseling and medications (“meds”).

A person desiring professional assistance for depression or anxiety can make an appointment with a psychiatrist or a clinical psychologist.

Psychiatrists can write prescriptions for anti-depressants and anti-anxiety medications, while psychologists provide multiple types of therapy for patients, including CBT and counselling. A psychiatrist who believes that therapy is beneficial will usually send a patient to a clinical psychologist, and psychologists frequently send patients to psychiatrists if they believe an assessment for medications is advisable.

Psychiatrists have a virtual arsenal of meds which can completely ameliorate the symptoms of depression and anxiety or, at a minimum, greatly alleviate those symptoms. For every one type of med which is currently available, there are many more at varying stages of research, development and approval. I have a close friend who has practiced psychiatry for almost fifty years, and he is exuberant about the meds which are either being approved or which are slated to undergo the approval process in the reasonably near future.

As a result of the availability of help, it should be incumbent on us to ensure that our peers in the legal community do not needlessly suffer and further run some of the personal and professional risks associated with chronic depression and anxiety.

Sometimes we know someone well enough to discuss these matters with him or her. But other times, we will see what appear to be classic symptoms of depression or anxiety, but not know that person well enough to initiate a rather private discussion.

When that is the case, we should remember that the Tennessee Lawyer Assistance Program (“TLAP”) is available for help. TLAP has credentialed counselors on staff who assist with staging interventions if warranted, speaking to attorneys who may need assistance and working with firms and family members in dealing with an afflicted attorney.

TLAP does not provide treatment. But it does an excellent job in pointing people in the right direction for obtaining treatment and relief.

We need to help our impaired attorneys become repaired lawyers.

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

December 2016

DICTA

13

HELLO MY NAME IS

. . .

SARAH BOOHER

By: Katie Ogle McDonald, Levy & Taylor

A city planner turned personal injury attorney, newly admitted member of the Knoxville Bar Sarah Booher has anything but an uneventful life. She was born in Indianola, Mississippi and lived most of her childhood there and in Indiana. After high school, Sarah moved to Williamsburg, Virginia and graduated from the college of William and Mary with a double major in Public Policy and American Studies.

With her degree in hand, Sarah was faced with the same decision as many upon graduating from college, “Where do I go now?” Fortunately, Sarah has two siblings, a brother who lives in Knoxville and a sister who lives in Texas. “At the time, I chose Knoxville because it was closer to ‘home,’ but now it’s hard for me to imagine living anywhere else,” explains the Ogle, Elrod & Baril associate. “We have beautiful landscapes, wonderful people, amazing restaurants, and the local bar community has been so welcoming.”

Upon relocating to the Knoxville area, Sarah began working as a planner for Anderson County and obtained a master’s degree in Urban and Regional Planning from the University of Tennessee. After working in this career for a short time, she had a “serendipitious” opportunity to attend law school. She anticipated that her background would lead her directly into practicing some type of property law, but didn’t close off opportunities to practice in other areas. Sarah chose to attend Duncan School of Law because of the small class size and her strong belief in the mission of Lincoln Memorial University.

During law school, Sarah was the president of the Moot Court Board and a liaison for the Tennessee Bar Assocation’s Young Lawyer Division, as well as a member of the Hamilton Burnett American Inns of Court. She was also selected as the school representative at two different pro bono law summits, and served as an Associate Justice on the Student Bar Association Board of Judicial Review at Duncan School of Law. With all of her extracurricular activities, Sarah also managed to work for the 8th District Public

Defender’s Office during her law school tenure. Because of this experience, she was already well-versed in having court two or three days each week, and preparing for (and winning) a trial, all before she graduated from law school.

In the summer of 2015, Sarah was offered a clerkship at Ogle, Elrod & Baril, and quickly jumped on the opportunity. “I think the most rewarding part of practicing personal injury law is my ability to help individuals in my community, often in their greatest time of need.” This ideal of lending a hand to the less fortunate is something Sarah comes by honestly. Her father is a retired Episcopal priest, and her parents always encouraged her to pursue justice and fight for the little guy. “Each of my siblings and I have done that in our own way,” says Sarah. “My sister became a special education teacher, my brother is a child and school psychologist, and I became an attorney.”

When she is able to find free time, Sarah enjoys following the Knox Trivia Guys’ weekly circuit, and trying new restaurants around town. She is also an avid music lover and goes to live shows whenever the opportunity presents itself. “I saw Garth Brooks twice the last time he was in town, I never miss a ‘Need to Breathe’ show in Knoxville, and I love the Rhythm and Roots and Racks by the Tracks events.” Sarah’s most recent and time consuming ventures involve DIY projects; think Chip and Joanna Gaines on HGTV’s “Fixer Upper.” She and her boyfriend Brian have completed remodeling their bathroom and are planning endeavors that involve laying hardwood floor and remodeling additional rooms in their home.

DICTA appreciates Sarah sharing a glimpse of her life with our readers, and wish her the best in her new career as an attorney, her upcoming DIY projects, and of course, at her next trivia night competition.

Address Changes

Please note the following changes in your KBA Attorneys’ Directory and other office records: Stephen H. Byrd BPR # 030014 9051 Executive Park Drive Suite 200 Knoxville, TN 37923 Ph. (865) 250-1968 FAX: (865) 675-1970 bunkybyrd@gmail.com William A. Fix BPR # 032102 200 Prosperity Dr. Knoxville, TN 37923 Ph. (865) 934-9239 FAX: (865) 281-1414 bill@fixlawpllc.com

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James W. Friauf BPR # 027238 Law Office of James W. Friauf, PLLC 9724 Kingston Pike, Ste 104 Knoxville, TN 37922 Ph. (865) 236-0347 FAX: (865) 512-9174 james@friauflaw.com Timothy A. Housholder BPR # 020792 Hagood Moody Hodge PLC 900 South Gay St., Ste 2100 Knoxville, TN 37902 Ph. (865) 525-7313 FAX: (865) 525-0858 tim@hagoodmoodyhodge.com

Lindsey E. Lyle BPR # 033420 U.S. District Court 800 Market Street, Suite 130 Knoxville, TN 37902 Ph. (865) 545-4228 FAX: (865) 545-4532 lindsey_lyle@tned.uscourts.gov

Jordana K. Nelson BPR # 024636 Bass, Berry & Sims, PLC 900 S. Gay Street, Suite 1700 Knoxville, TN 37902 Ph. (865) 521-0362 FAX: (865) 521-6234 jordana.nelson@bassberry.com

Melinda Meador BPR # 010058 The Meador Law Firm P.O. Box 649 Dresden, TN 38225 Ph. (731) 364-9800 FAX: (731) 364-9801 mmeador@meadorlaw.net

David J. Otten BPR # 031254 P.O. Box 2231 Knoxville, TN 37901-2231 Ph. (865) 546-1000 FAX: (865) 546-1001 dotten@wimberlylawson.com

DICTA

Esther Lois Roberts BPR # 021666 Global Intellectual Property Asset Management, PLLC 8216 Strawberry Plains Pike Knoxville, TN 37924 Ph. (865) 525-0848 FAX: (865) 525-9450 ebell@globalipam.com

December 2016

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

ON BUTTERFLY WINGS

If you take five minutes to envision a peaceful world, what comes to mind? Is it the Great Smoky Mountains? Is it a beach on an uninhabited island? Maybe it is a rocking chair on the front porch of an old farmhouse, or perhaps it is a wide, grassy plain. All of these have one thing in common: there are no people.

However appealing this may be, there is one serious problem with this vision. You wouldn’t exist in that world. In fact, you couldn’t exist in that world, because you are the product of people.

At the most basic level, you are the combination of two gene pools.

For some, the pool is pristine. For most, the gene pool is clouded with people like the Nebraska man who used a butane torch to light a cigarette . . . and the rest of his house.1 Don’t worry, though. That guy managed to escape without being burned. But, then he was injured when he tried to re-enter the home through the window. “He says the injuries were likely caused by broken glass.”2 It makes you wonder what other causes of his injuries he considered before he decided broken glass must be the culprit.

Genetics aside, you are also the product of the people around you.

There are people who raised you. There are people who were raised with you. There are people who taught you, sometimes intentionally, and sometimes very unintentionally. There are the people who hurt you, the people who helped you, the people you respect, and the people who disappointed you. There are the people who have made your life easier, and the people who have made it very difficult. Then, there are all of the people who have raised, taught, hurt, helped, or influenced all of those people.

You get the picture. The list goes on and on. But, there is more.

In the 1960’s, MIT meteorologist and mathematician Edward Norton Lorenz discovered that weather exhibits a phenomenon which he called “sensitive dependence on initial conditions.”3 For those of you who are not MIT-trained meteorologists, mathematicians, or regular watchers of The Big Bang Theory,4 this is the idea that a small change to an unrelated thing can alter a large, complex system5 otherwise known as the Butterfly Effect. Lorenz hypothesized that the flapping of a butterfly’s wings in China can affect the weather in South America.6 As a result, weather is impossible to predict, but you didn’t need a degree from MIT to know that.

The point is, you are not just a product of people. People are a product of you. What you do every day affects your world and the people who exist in your world, whether you know it or not. For good or for bad, the world you know would not exist if you were not in it.

So, the real question is, how has the flapping of your wings affected your world this year? Even more importantly, would you know it if you did?

Did you intentionally do anything to change the atmosphere at your firm? What impact did you make on your colleagues of the bench and bar? How did you affect your clients? Was your presence felt in the Knoxville Bar Association? the Tennessee Bar Association? the American Bar Association? Is there something different about your community, church, family, _________?

And, most importantly, was the effect of your presence positive?

After all, if an Asian butterfly can mess with the weather in South America, there is a good chance an East Tennessee J.D. could make a bigger mess.

December 2016

Eleven months ago, this column opened with these words from Bob Dylan:

Come gather ‘round people Wherever you roam And admit that the waters Around you have grown And accept it that soon You’ll be drenched to the bone.

If your time to you is worth savin’ Then you better start swimmin’ Or you’ll sink like a stone For the times they are a-changin’.7

Over the course of this year, this column has introduced you to Marion Griffin, Marshall P. Wilder, Aldus Manutius, Dr. Gerhard Stalling, Dorothy Leib Harrison Wood Eustis, Morris Frank, J. T. Trowbridge, and Clarence Saunders. These are all people who took Dylan’s idea to another level. They didn’t just swim because they saw the water was rising. They dove in to the water of their day, and the ripples of what they did are still being felt today.

Because of them, I have a law license, can use italics for emphasis, and can go into a grocery store and pick what I want off the shelf.

Because of them, society learned that every person has something to contribute, even if their physical abilities are limited. Because of them, people remembered that freedom for all men and women is worth the struggle.

You are already changing and shaping the world in which you exist simply because you exist in it. You may as well do more than just exist.

As Dr. Martin Luther King, Jr. observed: I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny.

Whatever affects one directly, affects all indirectly.8

2016 is not over yet, so thank the people who got you where you are.

Then, do more than just flap your wings. Flap them with purpose.

1 Home Heavily Damaged After Man Uses Torch to Light Cigarette, Hastings Tribune (Nov. 6, 2016), available at http://bigstory.ap.org/94fd3518c1c94d5086dab5ba47c532e6.

2 Id. 3 Encyclopedia Britannica, Edward Lorenz (Feb. 23, 2016), available at https://www.britannica.com/biography/Edward-Lorenz.

4 You can find the episode discussing Chaos Theory here https://www.youtube.com/ watch?v=fCiU34UChcw.

5 WiseGeek What is the Butterfly Effect?, http://www.wisegeek.org/what-is-the-butterflyeffect.htm.

6 Id. 7 Bob Dylan, The Times They Are a-Changin,’ on The Times They Are a-Changin’ (Columbia Records 1964).

8 Dr. Martin Luther King, Jr., Letter from a Birmingham Jail (Apr. 16, 1963), http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html.

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CHALLENGING ‘MARRIED ON SUNDAY, BUT FIRED ON MONDAY’: RECONSIDERING TITLE VII AND SEXUAL ORIENTATION DISCRIMINATION AFTER OBERGEFELL V. HODGES

While the United States Supreme Court in Obergefell v. Hodges recognized the right of same-sex couples to marry, Tennessee and 27 other states still permit employers to fire employees based on their sexual orientation.1 Title VII of the Civil Rights Act of 1964 prohibits employment discrimination because of “race, color, religion, sex, or national origin.”2 The U.S. Court of Appeals for the Sixth Circuit and other federal circuit courts, however, have held that the statute does not prohibit sexual orientation discrimination.3 This means that same-sex couples can marry on Sunday, but be fired on Monday for exercising their legal right to marry.

The Equal Employment Opportunity Commission (EEOC), charged with enforcement of Title VII, interprets the statute’s prohibition of sex discrimination as forbidding discrimination based on sexual orientation or gender identity.4 One month after Obergefell was decided, the EEOC in July 2015 issued a landmark decision in Baldwin v. Dep’t of Transportation, holding that a claim of discrimination based on sexual orientation necessarily states a claim of sex discrimination under Title VII.5 Baldwin’s holding applies to federal government employees, but its reasoning applies in cases involving private employees as well.

The EEOC has made coverage of LGBT individuals under Title VII a top enforcement priority. Since Baldwin, it has filed complaints against private employers in federal court alleging sexual orientation discrimination in violation of Title VII.6 Federal courts have begun to reconsider sexual orientation discrimination in light of Baldwin, which could result in a significant expansion of LGBT rights.

Baldwin In Baldwin, the EEOC analyzed claims

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of sexual orientation discrimination under 42 U.S.C. § 2000e-16(a), which requires that “[a]ll personnel decisions affecting [federal] employees or applicants for employment . . . shall be free from any discrimination based upon . . . sex.” That provision is analogous to the section of Title VII applicable to private employment discrimination at 42 U.S.C. § 2000e-2(a)(1). Acknowledging that its understanding has developed over time, the EEOC held that sexual orientation discrimination necessarily involves sex discrimination. The question is not whether sexual orientation is a protected category under Title VII, but whether the employer has “relied upon sex-based considerations” or “take[n] gender into account.”7 The EEOC offered three reasons for its conclusion.

First, sexual orientation is defined in terms of the sex of the person to whom a person is attracted. Discrimination on the basis of sexual orientation, therefore, inherently involves consideration of the employee’s sex.

For example, an employer who fires a female employee because she is married to a female, but does not fire a male employee who is married to a female, necessarily treats the female employee less favorably because of her sex.

Second, sexual orientation discrimination constitutes associational discrimination against individuals based on the sex of the person whom they date or marry. In Title VII cases involving race, courts have held that discrimination against employees involved in interracial relationships necessarily involves considerations of the employee’s race. Because race and sex are both protected categories under Title VII, the same analysis applies to employees who marry or associate with persons of the same sex.

Third, sexual orientation discrimination necessarily involves discrimination based on gender stereotypes. In Price Waterhouse

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v. Hopkins, the Supreme Court held that gender stereotyping constitutes unlawful sex discrimination.8 The employer in that case refused to promote a female manager, advising her that she should dress more “femininely,” wear makeup, and attend charm school. After Price Waterhouse, lower courts have allowed claims for gender stereotyping brought by LGBT employees if they were targeted for being insufficiently “masculine” or “feminine” based upon their appearance or mannerisms. But the courts have distinguished and disallowed discrimination claims based solely on sexual orientation. In Baldwin, the EEOC dissolved this distinction, holding that discrimination on the basis of sexual orientation often, if not always, involves heterosexually defined gender norms (i.e. men should date women and women should date men).

The EEOC concluded that nothing in the text of Title VII limits the benefits of the statute to heterosexuals. Recognizing claims of sexual orientation does not create a new class of covered persons, but simply applies the statutory prohibition against sex discrimination. As Justice Scalia wrote for a unanimous court recognizing claims for samesex harassment under Title VII in Oncale v.

Sundowner’s Association, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”9 Baldwin in the Federal Courts

Federal courts have begun to re-examine existing precedent in light of Baldwin, raising the possibility that the law may soon change.

Some have declined to follow Baldwin, citing binding contrary precedent or finding it unpersuasive, while others have followed its December 2016

COVER STORY By: Valorie K. Vojdik Waller Lansden Distinguished Professor of Law University of Tennessee College of Law

reasoning or suggested that it might apply.10

The Seventh Circuit is the first federal appellate court to consider Baldwin. In August 2016, a panel of the court in Hively v. Ivy Tech Community College declined to follow Baldwin. Recognizing that the EEOC’s decision is entitled to “some level of deference,” the panel held that it was presumptively bound by circuit precedent holding that Title VII does not prohibit sexual orientation discrimination.11 Two of the three judges, Judges Rovner and Bauer, proceeded to reanalyze the issue in light of Baldwin and changing workplace norms.

While they concluded that they were bound by past precedent, their analysis offers a useful roadmap for the full court and litigants to overrule existing precedent.

Judges Rovner and Bauer noted that the EEOC’s decision has caused federal district courts to question the rationale for denying sexual orientation claims while allowing nearly indistinguishable gender non-conformity claims. The courts have begun to question this doctrinal distinction, “scratching their heads,” and asking “whether the sexual orientation-denying emperor of Title VII has no clothes.”12 Meticulously reviewing the lower court opinions, the judges found them to be a “confused hodge-podge,” an “odd body of law” that privileges “the wearing of pants and earrings over marriage.”13 This “gerrymandering” of claims has produced an “illogical” and irrational result – courts have protected gays and lesbians when they fail to conform to gender stereotypes involving dress and mannerisms, but not when they engage in protected sexual and marital activity.14 The law has created “a paradoxical legal landscape in which “a person can be married on Saturday and then fired on Monday.”15

Like the EEOC, the judges agreed that “the very essence” of sexual orientation discrimination is discrimination based on an associational relationship with a person of the same sex.16 They also agreed that sexual orientation discrimination could be seen as gender discrimination under Price Waterhouse.

Gays, lesbians, and bisexuals fail to conform to the “quintessential gender stereotype” about who is an appropriate sexual partner, the judges observed, and there is no reason to believe this discrimination should be excluded.17 December 2016

Although they chose to follow prior precedent, they suggested that the time might come to reconsider those cases. In a parting shot, the two judges explicitly condemned sexual orientation discrimination in the workplace as a normative matter: Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it; many of the federal courts to consider the matter have stated that they do not condone it; and this court undoubtedly does not condone it.18 The opinion, however, concluded that the issue must be decided by either the Supreme Court or Congress.

On October 11, 2016, the full Court of Appeals vacated the judgment in Hively and granted rehearing en banc. Full court review will present the opportunity for the Seventh Circuit to re-examine and overrule its past precedent, creating a circuit split that could lead to Supreme Court review as early as next year. The opinion of Judges Rovner and Bauer could provide the necessary rationale.

The Second Circuit is also considering this issue in Christiansen v. Omnicom Grp, Inc., which could also result in a circuit split.19 The district court held that it was bound by past precedent holding that sexual orientation discrimination is not prohibited by Title VII. However, it questioned its continued vitality in light of Obergefell and United States v. Windsor, which “reflect a shift in the perception, both of society and of the courts, regarding the protections warranted for samesex relationships and the men and women who engage in them.”20 The district court agreed that no coherent line can be drawn between sexual orientation discrimination and sexual stereotyping, querying whether that line should be erased.

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Conclusion

Having struck down state laws that deny LGBT persons equal rights to marry, perhaps the Supreme Court will recognize that workplace discrimination on the basis of sexual orientation is similarly demeaning and violates Title VII. In the meantime, the EEOC (at least for now) continues to level the playing field for all employees, regardless of sexual orientation.

1 See Obergefell v. Hodges, 135 S. Ct. 2584 (2015); Hively v. Ivy Tech Community College, 830 F.3d 698, 714 (7th Cir. 2016).

2 42 U.S.C. §2000e-2(a)(1).

3 See, e.g., Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006); see also Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000); Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000).

4 See Baldwin v. Dep’t of Transportation, EEOC Appeal No. 120133080, 2015 WL 4397641 (July 15, 2015) (sexual orientation discrimination); Macy v. Holder, EEOC Appeal No. 0120120821 (2012) (gender identity).

5 Baldwin, 2015 WL 4397641 at *5.

6 See, e.g., EEOC v. Pallet Companies d/b/a IFCO Sys. North Am., Civ. No. 1:16-cv-00595-CCB (D. Md. filed Mar. 1 2016, settled June 28, 2016); EEOC v. Scott Medical Health Center, Civ. No. 2:16-cv-00225-CB (W.D. Pa. filed March 1, 2016).

7 Baldwin, 2015 WL 4397641at *4.

8 See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989).

9 Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998).

10 See, e.g., Winstead v. Lafayette Co. Bd. of Co. Commissioners, 2016 WL 3440601 (N.D. Fla., June 20, 2016) (citing Baldwin and refusing to dismiss complaint for sexual orientation discrimination); Hinton v. Virginia Union University, 2016 WL 2621967 (E.D. Va., May 5, 2016) (declining to follow); Videckis v. Pepperdine Univ., No. CV1500298, 2015 WL 8916764, at *6 (C.D. Cal. Dec. 15, 2015) (applying reasoning to Title IX, concluding that “the line between sex discrimination and sexual orientation discrimination is ‘difficult to draw’ because that line does not exist, save as a lingering and faulty judicial construct.”).

11 See Hively, 830 F.3d 698.

12 Id. at 713.

13 Id. at 711, 715.

14 Id. at 718.

15 Id. at 714.

16 Id. at 717.

17 Id. 18 Id. at 718 (citations omitted).

19 Christianson v. Omnicom Grp., No. 16-748-cv (2d Cir. filed June 28, 2016).

20 Christiansen v. Omnicom Grp., 167 F. Supp. 3d 598, 619 (S.D.N.Y. 2016).

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barrister bullets BARRISTER ELECTIONS & HOLIDAY PARTY Mark your calendar to attend the December 7 Knoxville Barristers meeting, elections and holiday party at the Bistro at the Bijou. We’ll be electing Vice President, Secretary/Treasurer and two At-Large Executive Committee seats. Even if you can’t stay for the whole party, make sure to drop in before 5:15 p.m. to be able to vote. Samantha Parris will become Barristers President at the end of the meeting. There is no need to RSVP just stop by, have a drink on us, grab some refreshments and help shape the future of our profession and community.

DIVERSITY COMMITTEE The Diversity Committee held its Second Annual Diversity Mixer on November 4, 2016. The event was well attended and plans are in the works for next year’s Mixer. In the meantime, The Diversity Committee will be organizing a team for the YWCA’s Race against Racism to be held January 14, 2017. The Committee will cover the registration fee for anyone who wants to join the team, just let us know BEFORE the end of the year! Contact Zack Gardner or Amanda Morse at zgardner@ kmfpc.com or amanda.morse@knoxcounty.org for more information!

MOCK TRIAL Several local high schools have reached out to ask whether a local attorney or law student might be willing to volunteer coach or help with a mock trial team. The time commitment is flexible, and could range from being the lead coach for a team to helping out at one or two practices. If you would be interested in helping in this way, please contact John Rice at jrice@esc-law.com.

HABITAT FOR HUMANITY Please stay tuned for future fundraising events to support Habitat - we are right around the corner from crucial fundraising efforts, and we will need your participation and support!

HUNGER AND POVERTY RELIEF Thanks to all who participated in the Seventh Annual Cornhole

Throwdown on October 20! Special thanks to Monte Miller and CrestPoint Wealth Management for sponsoring this year’s tournament!

The tournament raised approximately $500 for Big Brothers Big Sisters of East TN. The Hunger and Poverty Relief Committee would like to thank everyone who helped with events throughout the year – from sorting professional clothing to collecting food items for Second Harvest, your participation is what helps this committee make such an impact in our community. We hope you’ll join us again in 2017!

VOLUNTEER BREAKFAST On behalf of the Knoxville Bar Association’s Barristers and its Volunteer Breakfast Committee, Kati Sanford Goodner and Paul Wehmeier would like to formally thank the following individuals, law firms, and attorney organizations for their financial and volunteer support delivering breakfast to those in need at Volunteer Ministry Center at 6:15 a.m. on the 4th Thursday of the month: 1. Professor Dwight Aarons, University of Tennessee College of Law; 2. Butler, Vines & Babb 3. Robert Stivers, Esquire 4. ETLAW; 5. Egerton, McAfee, Armistead & Davis, PC; and 6. Elmore, Stone & Caffey Over the course of 2016 the above mentioned individuals and groups were a critical component to the success of this poverty relief effort.

Specifically, we would also like to thank the numerous individuals from the sponsoring organizations and other attorneys and staff who took time out of their busy morning, away from their families, and their sleep schedules to deliver this necessary service to the community. We trust that our sponsors and individual volunteers were as blessed by the experience as the folks that were served. There are still opportunities to serve in the month of December and in 2017. If you, or your firm, are interested in sponsoring or serving breakfast at Volunteer Ministry Center as part of the Barristers’ Volunteer Breakfast program, please contact Paul Wehmeier at (865) 546-7000.

NEW ADMITTEES RECEPTION

W O R D P L AY By: Peter D. Van de Vate Finkelstein, Kern, Steinberg & Cunningham

“Diaper” Why write about the ubiquitous diaper? Wait for it.

In about 1330, the Old French word diapre described a fabric with a repeated pattern. That word came from the Medieval Latin diasprum, an ornamental cloth. By 1596, Shakespeare used the word diaper to describe a cloth, napkin or towel. The first recorded use of the word to describe a folded cloth used as a baby’s underpants was in 1837. Now I will tell you why I picked the word: “Politicians are like diapers. They both need regular changing and for the same reason.” - Mark Twain

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December 2016

WELL READ

WILL TRUMP MAKE THE LEGAL INDUSTRY GREAT AGAIN?

By: Lee T. Nutini Gideon Cooper & Essary

So here we are, getting our first glimpse of what Trump’s America

And yet, in reading the diverse reactions to the recent election, that will look like. Like many of you, I have been reading my fair share of is exactly what I fear will come. Setting aside any legal challenges directly online musings from those either basking in the glow of victory or caused by a new presidency, we are witnessing a new fracturing of trust in planning moves overseas. Whether you supported Donald J. Trump’s our neighbor. Communities feel divided. The Others appear insufferable. candidacy or not, we all face what The Wall Street Journal is calling a “new We may be more willing to seek a day in court to redress our concerns political order.” As lawyers, we might also face what legal consultant rather than engaging in conversations that would alleviate the problem.

Peter Zeughauser is calling a revamped “legal People may use a more aggressive stance to battle e must use our talents as industry on steroids.” As reported by Law360 tension, which will only ever cause the situation counselors at law, rather and the ABA Journal, Mr. Zeughauser forecasts to spiral downward. than merely attorneys massive legal implications stemming from the

Lawyers may witness this tightening. We at law, to guide clients away from impending Trump presidency. must use our talents as counselors at law, rather needless litigation.

In short, during a Trump presidency, than merely attorneys at law, to guide clients lawyers will “have a field day.” away from needless litigation. We should all

Specifically, it is being reported that remain aware of the new order that is coming the Trump administration would change immigration law, thereby and be prepared to seek the bigger, better win for our client: a win that potentially increasing corporate audits of employee eligibility. Healthcare helps our client and his or her community. We are only now beginning changes—especially to the Affordable Care Act—are certain to come, to see what the new order will look like, but we have the tools to be dragging the insurance industry along with it. Lawyers working in prepared for it. international trade would certainly see a huge uptick in work. There are

Forecasters like Mr. Zeughauser may be right: more legal work is even forecasts that extra legal work will come in the areas of property law coming. I know a few newly-minted lawyers who cherish the thought. and regulatory work due to increased litigation surrounding efforts to But there is some work that no one wants, and that is work that only rebuild infrastructure. So, if these changes will yield a new “legal industry furthers divisiveness, hatred, and high blood pressure. on steroids,” it sounds like Trump is expected to make the legal industry

The legal industry may become great again during Donald Trump’s great again. four (or eight?) years in office. But it will only be great if we use our

Of course, increased litigation in these areas could be predicted in talents to soothe and guide our clients during those times when they can any moment of political turnover, on both the local and national level. see nothing but red. Let us only make, and take, the good work.

But what we should not hope for is a more litigious world in general.

W

New Court Rules Bankruptcy Court Local Rules Effective November 1 The Local Rules of the United States Bankruptcy Court for the Eastern District of Tennessee have been amended and will become effective November 1, 2016. The new rules are available on http://www.tneb.uscourts.gov/.

General Sessions Court Rule 27 regarding Court Appointments The Knox County General Sessions Court has adopted a new Rule 27 pertaining to court appointments: The Court will maintain a list (Appointment List) of those attorneys approved to accept appointments for the representation of indigent defendants in criminal cases. This list will be maintained by the Judicial Court Administrator.

The Appointment List will be revised annually. Once approved to be on the Appointment List, an attorney must indicate their wish to remain on the Appointment List on an annual basis. All attorneys shall provide notice of their desire to remain on the Appointment List by providing written or email notice to the Judicial Court Administrator

by December 31st of each calendar year. Effective Date: November 30, 2016.

December 2016

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MINORITY LAW STUDENT RECEPTION

The Knoxville Bar Association, in conjunction with The University of Tennessee College of Law and the LMU Duncan School of Law, sponsored a “Diversity in Knoxville” CLE program and reception on Minority Law Student Reception on October 18 at The Square Room at Café 4. The program featured: Mayor Madeline Rogero, Phyllis Nichols of the Urban League, Avice Reid from the City of Knoxville, Christi Branscom who is Deputy to the Mayor/COO and Tim Romero from Enterprise Holdings Inc. The event was a success with twenty-three law students and sixty-two lawyers representing thirty-four local law firms and government agencies at the event.

Anderson Busby PLLC Baker, Donelson, Bearman, Caldwell & Berkowitz Bill Hotz & Associates, P.C. Knox County Circuit Court City of Knoxville Law Department East Tennessee Children’s Hospital East Tennessee Foundation Egerton, McAfee, Armistead & Davis, P.C. Eldridge & Blakney, P.C. Federal Defender Services Gilreath & Associates Hodges, Doughty & Carson, PLLC Holbrook Peterson Smith PLLC Kennerly, Montgomery & Finley, P.C. Knox County Schools Kramer Rayson LLP Lewis, Thomason, King, Krieg & Waldrop, P.C. Lincoln Memorial University - Duncan School of Law London Amburn, P.C. Luedeka Neely Group, P.C. Office of Disability Adjudication & Review Paine | Bickers LLP Ritchie, Dillard, Davies & Johnson, P.C. Robertson Overbey Stone & Hinds, P.C. Tennessee Valley Authority The Law Office of Carole Lynch Worthington The Law Office of Sarah J. Watson U.S. Attorney’s Office U.S. District Court U.T. College of Law Underwood Law Office Watson, Roach, Batson, Rowell & Lauderback, P.L.C. Woolf, McClane, Bright, Allen & Carpenter, PLLC

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December 2016

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

THE POTENTIAL ETHICAL PITFALLS OF COMMUNICATIONS WITH FORMER EMPLOYEES Hypo: As part of a personal injury lawsuit involving a local employer, counsel for the plaintiff wishes to speak to former managerial employees of the employer concerning the incident that caused the injury. The former employees communicated with the organization’s attorneys about the matter while still employed and have communicated about the matter with counsel for the organization several times since ending their employment. May the plaintiff ’s lawyer communicate with the former employees? Are the post-employment communications between the former employees and the lawyer for the former employer privileged?

The Tennessee Rules of Professional Conduct are clear about the ability of opposing counsel to communicate with a current managerial employee of an organization that is represented in a matter. Comment 7 to Rule 4.2 explains that in the case of a represented organization, the rule prohibits opposing counsel from communicating about the subject of the representation with a managerial employee of the organization.

Likewise, the attorney-client privilege clearly applies to communications “made pursuant to the attorney-client relationship and with the intention that the communications remain confidential.” Culbertson v. Culbertson, 393 S.W.3d 678, 684 (Tenn.Ct.App.2012). The privilege has been extended to apply to communications between an employee and the organization’s attorneys. Upjohn Co. v. United States, 449 U.S. 383.

What is less clear is the extent to which a lawyer may communicate with a former employee of an opposing party and the extent to which the attorney-client privilege might shield any communications between the former employee and the other party.

Comment 7 to Rule 4.2 expressly provides that a lawyer does not need to obtain the consent of an opposing party to speak to the former employee of the party. Obviously, former employees may be an important source of information during the discovery process. However, Rule 4.4(a)(1) prohibits a lawyer from knowingly using methods of obtaining evidence that violate the legal rights of another person.

Comment 7 to Rule 4.2 also specifically references a lawyer’s obligations under Rule 4.4 and admonishes that the lawyer “shall not solicit or assist in the breach of any duty of confidentiality owed by the agent to the organization.” Thus, there are potential limits on the ability of a lawyer to communicate with the former employees of an opponent.

December 2016

In a federal case from the Western District of Tennessee, an organization objected to an opposing lawyer’s stated desire to communicate with a former employee for fear that the former employee might disclose information protected by the attorney-client privilege or in violation of the former employee’s non-disclosure agreement. Lass v. Pacific Paper Products, Inc., 2011 WL 5084602 (W.D. Tenn. 2011).

While recognizing that the lawyer had a right to contact the former employee, the court entered an order requiring the lawyer to advise the former employee to avoid disclosure of privileged or confidential corporate information, prohibiting the lawyer from attempting to solicit privileged or confidential corporate information, and immediately terminating the interview should it appear that the former employee was about to reveal privileged or confidential information. Id. at *4. Other courts have been similarly willing to enter protective orders limiting communications between an attorney and former employees to nonprivileged information. See Valassis v. Samelson, 143 F.R.D. 118, 124 (E.D. Mich. 1992).

The question of whether the post-employment communications between a former employee and the organization’s lawyers are subject to the attorney-client privilege has proven to be more challenging for courts.

In a recent decision, the Washington Supreme Court held that the privilege does not apply to such communications. Newman v. Highland Sch. Dist. No. 203, No. 90194-5, 2016 WL 6126472 (Wash. Oct. 20, 2016). The court observed that while an agency relationship exists during the course of an employment relationship, “everything changes when employment ends.” Once the employment relationship ends, “a former employee is no different from other third-party fact witnesses to a lawsuit, who may be freely interviewed by either party.” Id. at *4. Other courts have disagreed, however, and concluded that the privilege applies to post-employment communications between a former employee and counsel for the employer as well as communications made during the employment relationship. See In re Allen, 106 F.3d 582, 605–06 (4th Cir. 1997). These courts have typically focused on the underlying justification for the privilege, namely the need for lawyers to receive the information needed to give sound advice to their clients.

Currently, there are no Tennessee decisions specifically on point as to the privilege issue. Therefore, while lawyers are free to question former employees as part of an investigation, they should be mindful of the potential privilege and ethical issues that may arise.

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THE KNOXVILLE BAR ASSOCIATION presents OVER 50 LUNCH FOR SENIOR ATTORNEYS & THEIR GUESTS

Tales from an Ancient Mariner (Q-Ships vs. U-Boats: America’s Secret Project) Featuring

Kenneth M. Beyer

World War II Veteran, U.S. Navy

Wednesday, December 14, 2016

11:30 a.m. - 1:00 p.m.

Calhoun’s on the River - 400 Neyland Drive

PRICE: $35.00 (Includes tax & gratuity) Price includes choice of Lemon Chicken or Crab Cakes, vegetable, salad & beverage.

If you have dietary restrictions, please provide us with at least 48 hours’ notice of your limitations.

Mail/deliver check The Knoxville Bar Association 505 Main Street, Suite 50, P.O. Box 2027, Knoxville, TN 37901-2027 (865) 522-6522 Prepay online at www.knoxbar.org.

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December 2016

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

A STARTING POINT

The format for writing a monthly column for DICTA is very difficult. First of all, it is demanding upon my time. While many reading this know that very little research (or really even intelligent thought) goes into these columns, it can still take away from work, family and other obligations to simply sit down at the computer and write a semi-coherent stream-of-consciousness 1000 words long. Moreover, it is taxing to try and come up with a fresh new topic every month. I have often thought I would ask Marsha to rerun some article I wrote from 1999 just to see if anyone was paying attention. To say I experience severe writer’s block at least once a month would be an understatement. Third, this is supposed to be a humor column, but we live in a community and world where you have to tread lightly at the risk of offending. I understand that and respect it. The last thing I would want is to hurt the feelings of someone reading this column that was just meant to be for fun. It has happened a couple of times over the years and has never left me feeling very good. That is why, you may notice, to the extent there is humor in this column, it is almost always self-deprecating.

Finally, the most frustrating part about writing for DICTA is the lag in time between when I write something and when it is actually published. I am writing this article on November 10 and it will not be published until the end of the month. Matters topical now may have no relevance in three weeks. More importantly, the mood of the community can turn dramatically in a short period of time and things that were once funny cease to be.

You need to know those frustrations as you read on. Two days ago, we elected Donald Trump as our next President, ending one of the most bitterly divisive campaigns in our country’s history. I wanted to steer clear of such a politically-charged topic, but it’s kind of impossible to ignore. The election was historical for a number of reasons and may end up changing the way we engage in politics forever. The divide of our nation was brought into full relief as, out of over 119 million votes cast, roughly 200,000 votes separated the two candidates (that’s less than 0.2%). As I write, some are protesting in the streets while others are celebrating a new day in America. This is a difficult topic to write about without offending. Emotions, at least today, are highly charged all around. I do pray that, by the time this article goes to print, we will all be able to channel these emotions into a positive direction for the country, on both sides of the political aisle. And yet, despite the fact that everything I know tells me not to, I feel compelled to write about this election. To ignore it is futile. So, here goes.

I started with the notion, as I said, that our society is clearly and deeply divided in what the vision for our country should be. This has actually been true for several years now (how many election nights will December 2016

we have to go through where it seems Florida is the pivotal state?), but it has become more clear through the rhetoric of this election cycle.

Our leaders no longer cross party lines and build consensus. Hearings on qualified judicial appointments are delayed in the hopes that a new regime will come to power. Government shutdowns no longer surprise or concern us. Accusations and suggestions of scandal are hurled back and forth upon the barest of verifiable evidence, destroying public confidence in both winners and losers.

What is most disconcerting is that our leaders act this way because we want them to. All of us are to blame. We treat politics like a football game where there is a winner and a loser and we get caught up in the elation that comes with the contest. Politics should not be a contest.

Politics is the art of governing and compromise for the good of the whole. In a functioning system, there should be no winners or losers, just a reasoned and intentional effort to lead and bring our society together.

Against the backdrop of where we are, and where we should be as a nation, I did some real soul-searching to determine if there is any common ground we share and upon which we can build. After much thought, I think I finally came up with a notion that all Americans can agree upon. Specifically, I think democrats, republicans, and independents can all agree that a political science degree from Emory University isn’t worth the paper it’s printed on. Seriously, I spent four years and countless thousands of dollars studying Plato and De Tocqueville, observing elections and reading biographies of every major politician in our nation’s history and I apparently know nothing about American politics. To say this election has come as a surprise would be the biggest understatement of my life. Let’s say, hypothetically, that I made a few wagers with friends, for entertainment purposes only, regarding the outcome of this election. Hypothetically, I would be out $120 right now, because in my wildest dreams I would not have predicted the election of Donald Trump as the 45th President of the United States. My only consolation is that I am not alone. Pundits and pollsters across the nation never gave Donald Trump a chance. Most republicans I know did not really think he was going to win. Quite honestly, despite his stump speeches to the contrary, I kind of suspect that President-Elect Trump did not actually believe he would win this election. But there you have it. He did. He will be the next President of the United States and I am left wondering what my college education was really all about. If we can all agree that the Emory political science department is inept, at least we have a starting point. If we have a starting point, there may be a path forward together.

DICTA

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G U I LT Y P L E A S U R E S By: Angelia Nystrom University of Tennessee Institute of Agriculture

GUILTY PLEASURES: TURKEYS, TREES AND TREATS

The Nystroms are not talking turkey this year. Literally. The Thanksgiving turkey has received an official pardon for 2016 – we are skipping Thanksgiving. Yep – We have gone straight from Halloween to Christmas, and I could not be happier.

I am a holiday decorator. Every year, the pumpkins, ghosts and goblins are followed by the turkeys and pilgrims. This year, though, we are going directly from Halloween to Christmas since we will be heading to Hawaii for the festivities surrounding the 75th Anniversary of the attack on Pearl Harbor the first week in December.

While I will miss the great Thanksgiving food, I’m not terribly disappointed otherwise. I’ve always been a big fan of Christmas. Even as a kid, I remember turning the Fisher-Price Little People barn into a Santa’s workshop diorama. I remember spending countless hours every year decorating the Christmas trees (we usually had at least two) while my dad, a/k/a Scrooge, stood in the background and said, “If it were up to me, we wouldn’t bother with all this mess. What’s the use of putting up all of this crap if you are just going to take it back down?”

In the past, I have always started Christmas decorating on the day after Thanksgiving (because it takes me that long to do the Thanksgiving dishes). Every year, Hugh – a/k/a “Scrooge II” – complains about the “Christmas crap.” This year, though, we were both singing “Mele Kalikimaka” on November 10, when the first of the decorations made their appearance.

Decorating is one of my holiday “guilty pleasures.” I absolutely love to decorate, and I turn on the trees every morning as soon as I get out of bed. I have even been known to leave the trees up well into February (on one particularly crazy year, they stayed up until St. Patrick’s Day).

Sometimes, I cannot bear the thought of the house without them.

As much as I like decorating, I also like Christmas movies and music. My car radio is now set to the Sirius XM Christmas station, and I have already been watching Christmas movies on Comcast’s OnDemand. I’m anxiously awaiting the FreeForm 25 Days of Christmas and Fa-La-La-La Lifetime.

I absolutely love all of the Christmas movies – everything from the old school “Rudolph the Red-Nosed Reindeer” to Mario Lopez in “Holiday in Handcuffs.” (Confession, I’ve already watched that one twice, and it is only mid-November.) One of our family favorites, though (and perhaps because it hits pretty close to home with our crazy family), is “National Lampoon’s Christmas Vacation.” I’m a big fan of Cousin Eddie, Aunt Edna and whole Griswold clan. To quote Clark, “The most enduring traditions of the season are best enjoyed in the warm embrace of kith and kin. Thith tree is a thymbol of the thpirit of the Griswold family Chrithmath.” In the Griswold family tradition, our house looks like – to quote Hugh – “it puked Christmas.” I wouldn’t have it any other way.

Certain that we aren’t the only family with over-the-top decorations and wacky traditions, I asked a few friends to share their own holiday “guilty pleasures.”

Darsi Sirknen prefers another type of decorating. “Instead of tacky sweaters, my sister and I do tacky gift wrap. We compete each year to see who can wrap the other’s gift in the most tacky, ugly, and sometimes

24

gross items. We’ve used buckets, bailing twine, beer cases, horse feed bags, junk mail, cotton balls – if it looks awful, we’ve done it.”

Ashley Lowe says, “ I have five words for you – Mayfield’s Peppermint Stick Ice Cream. I cannot wait until it hits the grocery store shelves every year, and I eat it as often as possible until it disappers from the shelves. Fat and calories don’t count at Christmas, right?”

Like me, Adrienne Anderson loves Christmas movies, particularly “It’s a Wonderful Life” and “A Christmas Story.” Says Adrienne, “I don’t feel guilty about being a Jimmy Stewart fan, but should a 50 year old woman be able to recite all the lines from ‘A Christmas Story?’ – ‘You’ll shoot your eye out!’ And I love the leg lamp. Hey, ‘It’s a major award.’”

Adrienne also enjoys her eclectic holiday music collection. In addition to the Mormon Tabernacle Choir, Boston Pops, and Bing Crosby/Burl Ives/Johnny Mathis/ and Mahalia Jackson versions of traditional holiday music, she has these gems: “You’re a Mean One, Mr. Grinch,” “Rocking Around the Christmas Tree”’ by Cyndi Lauper, “Up on the Housetop” by the Jackson 5, “The Twelve Days of Christmas” by the Beastie Boys, “The First Noel” by Smokey Robinson, “Santa Baby” both the Eartha Kitts version and the one by the Pussycat Dolls, “Blue Christmas” by Johnny Cash – not Elvis, and “Christmas Don’t Be Late” by Alvin and the Chipmunks. Says Adrienne, “I listen to these songs nonstop on Christmas baking days, and it drives everyone in my family crazy. And even I will admit that Alvin and the Chipmunks are annoying.”

We all have traditions that make the holiday season special. Our own little guilty pleasures become holiday treasures, creating memories that will last a lifetime. And to quote Frank Sinatra, “Mele kalikimaka is Hawaii’s way to say Merry Christmas to you!”

DICTA

December 2016

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

Bill Ramsey Neal & Harwell

Phil Hampton

Founder and CEO, LogicForce Consulting

GOOGLE PIXEL PHONE

We know that Apple is still the king of the hill in the smartphone market (in the U.S. at least); nonetheless, we still have a strong affection for our Android-based phones (Phil especially). As such we were dismayed when the new Samsung Galaxy Note 7 crashed and burned (literally) upon launch. Fortunately, we had not yet purchased the latest Note phone before the over-heating reports began to surface in the news.

So, with money already budgeted for the latest and greatest Android competitor to the iPhone, we began to search for a worthy candidate.

We didn’t have to wait long. Google gave us an October surprise with the rollout of two new Google-branded phones: a 5-inch Pixel and a 5.5-inch Pixel XL.

The Pixel phones are a new endeavor for Google as they seem to be drawing the curtain on their previous line of co-branded phones under the Nexus label. With these new Pixel phones, it is quite apparent that Google is upping its game to compete directly with the high-end iPhone 7 and Galaxy S7 models. The price certainly is in the high-end phone strata, starting at $649. But since we had an older HTC phone on the Verizon network and Verizon was offering a pretty good trade-in allowance to apply toward the new Pixel (at the time of this writing, the Pixel is available exclusively on the Verizon network), we took the plunge and snatched a “very silver” Pixel XL, taking advantage of Verizon’s option to finance the purchase over 24 months with no interest.

Out of the box, the Pixel XL has a remarkable resemblance to one of the iPhone Plus models. It is tall and sleek and has a substantial feel without being heavy. We noticed the fingerprint scanner on the back of the phone and promptly set it up to awaken the phone with just the touch of the finger. And it works very well with no glitches – at least that we have encountered. We also noticed there were no visible navigation buttons. These “buttons” appear as soft buttons on the display when the phone is powered on... This change took some getting used to, but we definitely like the smooth front face of the phone with no button protrusions.

Of course, one of the first things we had to try was the new, much-hyped Google Assistant, which is Google’s answer to Apple’s Siri, Amazon’s Alexa, and Microsoft’s Cortana. Google Assistant is a built-in digital assistant that purports to be more “intelligent” and, in addition to answering your audible questions, will be more “conversational.” We found it to be ok, but not supremely better than Siri or Alexa. What is unique is that Google Assistant will give an answer to a query and then suggest follow-up questions. For example, when we asked what flights were available from Nashville to New York City, Google Assistant replied with a list of available flights along with their prices. In addition, she suggested a number of follow-up queries and information such as “Hotels in NYC,” “car rental near NYC,” “car park near Nashville airport,” etc. In other words, Google Assistant attempts to anticipate your next question before you ask it and gives you a quick way to “converse” with the digital assistant system.

The next feature we tried was the excellent 12-megapixel camera.

We definitely know the quality of photos that you can shoot with an iPhone 7 as well as the Galaxy S7; and we think the photo quality of the Pixel camera is right up there with both. The Pixel camera even seems to excel in low light situations. We were not as enamored with the 8mp front facing camera; but, then again, it could be the image that it was capturing (our faces) that soured us.

What is certainly note-worthy about the Pixel camera is that December 2016

Google is offering free, unlimited cloud storage for photos and videos taken with the Pixel. This perk lessens somewhat the disappointing omission of an external SD card slot for additional storage. We hear so many comments from people who complain about the difficulty in transferring and securing photos from their phone to more permanent storage. Google has made it exceedingly easy and cheap to do with the Pixel.

We were glad to see that Google did not follow Apple’s lead in removing the headphone jack, although the phone does not come with a set of headphones. But, of course, we have literally dozens of headphones that we can use; and we probably will need to use them with the Pixel (or connect to a Bluetooth speaker) since the built-in audio speaker is ok, not great.

What perhaps is most striking about the operation of the Pixel phone is how quick and responsive it is. Furthermore, the battery life is impressive as well. We literally have exceeded 24 hours without a re-charge. And when re-charging is necessary, the re-charge time is very quick (going from 0 to 50% charge in about 30 minutes).

The verdict: we really like Google Pixel. It is a premium smartphone worthy of comparison to the iPhone 7 and Galaxy S7, two of the most popular phones on the market right now. You don’t want to go swimming with the Pixel as it is not dunk proof like the iPhone 7 and Galaxy S7. But if you want the latest and purest version of Android in a premium smartphone form with an excellent camera, unlimited cloud photo storage, the new “Google Assistant” banter, and a remarkable battery to carry you throughout the day and night; the Google Pixel might be your next best option. Or you could be like us and buy all three.

See you next month.

DICTA

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AROUND THE BAR By: Tasha C. Blakney Eldridge & Blakney, P.C.

DOUG BLAZE INDUCTED INTO THE DONALD F. PAINE MEMORIAL PRO BONO HALL OF FAME (EXCERPTED FROM THE INTRODUCTION)

So, it comes as no surprise to those of us who know him, that Doug Blaze will now tonight join the ranks of the Hall of Fame named for Don Paine, because Doug embodies the same principles that made Don Paine a leader and a mentor to so many of us.

You see, what Doug does is he instills in the generations of lawyers to come the call to service. He leads by example and he practices what he preaches.

Doug guided me through my own first pro bono representation when I was a law student and he was my clinic supervisor. I carry with me now the tools and the lessons he taught me, just as many of you in this room also do.

What’s more, he has taken his talent for inspiring others and has made it a model for legal educators. He frequently writes and he lectures on how to incorporate meaningful clinical experiences into legal education. Because of his efforts there are legal educators across the country who follow his lead and teach by example: instilling the call to leadership and to service in their law students.

We’re all familiar with the old proverb: give a man a fish and he eats for the day, but teach a man to fish and he will never be hungry. Doug, when it comes to access to justice, thank you for teaching us all how to fish.

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

“WHAT IS ART? IS ART, ART?”

I’ll be the first to admit that my senses are not always refined enough to appreciate or truly “get” modern art. Asher Woodward, a 30-year-old living in Portland, Maine, fancies himself to be a performance artist. Does he dance or sing or mime or act, you might ask? Well, no. Not really. Last month, Woodward, as an act of performance art, dressed up as a tree and stood in the middle of Congress Street in Portland, Maine, blocking traffic. Woodward also, at times, moved across the crosswalk at a glacial pace.

Woodward’s costume was rather convincing as he was covered in what appeared to be fir tree branches. Other than the obvious impracticalities of a tree appearing in and/or moving across the middle of the road, Woodward’s boots also gave him away as a fake fir.

Officers found Woodward the Tree blocking a congested intersection, and they kindly asked him to not stand in the street or block traffic. Woodward was initially so engrossed in his show that he failed to comply with their requests. Officers provided additional warnings, and Woodward subsequently complied and moved to the sidewalk.

However, as the officers began walking away, Woodward decided to give his act another go and walked back into the crowded street. Woodward was de-treed and taken into custody for failing to obey their orders and for obstructing traffic. Woodward remained silent through the entire debacle. He later explained that the objective of the tree “performance” was to learn how his performance would be received and how it would affect “people’s natural choreography.”

The Portland Herald Press reported that Woodward was previously arrested in 2009 when he and his pals attempted to steal the large chili pepper from the Chili’s logo off the roof of a Chili’s. The judge told Woodward and friends to try to engage in smaller acts of stupidity. I guess Woodward took the judge’s admonishment a bit too literally.

If nothing else, Woodward’s performance garnered him attention on national news outlets who reported his bizarre act, and it also led to some excellent puns in the twitter-sphere: “They arrested him because he wouldn’t leaf ” by @KyleAMadison and “… has he been arrested for treeson? That’s not fir” by @WhartoJohn.

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DICTA

December 2016

LAWYER HOBBIES By: Katie Ogle McDonald, Levy & Taylor

HOLIDAY TRADITIONS

This column is frequently devoted to a specific attorney or small groups of attorneys, and profiles an interesting hobby they may have.

However, for the Holiday Edition, I sought to obtain the inside track on what lawyers enjoy during the time of year when courts are closed and office parties are in abundance. Locally, some of my favorite events include the Regal Celebration of Lights and the WIVK Knoxville Christmas Parade that kick off the Christmas season. Nate Ogle also ensures that we annually attend a performance of “A Christmas Carol” at the University of Tennessee’s Clarence Brown Theatre.

In speaking with fellow members of the Knoxville Bar, attorney Sherry Mahar shares that one of her favorite holiday events is the Fantasy of Trees held each year at the Knoxville Convention Center.

This event is sponsored by East Tennessee Children’s Hospital and continues to grow in community participation each year. At this fundraiser, themed Christmas trees are decorated and donated for auction to benefit East Tennessee Children’s Hospital.

Allison Starnes-Anglea and Cody Farmer both noted that one of their favorite Knoxville holiday traditions is the Tour de Lights event.

In this free bike parade through the downtown, 4th and Gill, and Old North Knoxville neighborhoods, riders are encouraged to decorate their bikes with lights, and dress up in costume. The route is about five miles long and takes about an hour to ride at a leisurely pace. Hot cocoa and holiday themed treats are available at different stops throughout the event.

Carolyn Gilliam says that one of her favorite holiday traditions in Knoxville is the “Breakfast with Santa” event at Lakeside Tavern on Northshore Drive. At this pancake breakfast event, reservations are

required to dine with Santa and all participants have the opportunity for a meet and greet with the man in the red suit. A close second for the local attorney is the opportunity to ice skate at the “Holidays on Ice” event in Market Square sponsored by Home Federal Bank.

Many of our family traditions don’t involve events specific to Knoxville. For local adoption attorney Meghan Bodie, her annual tradition includes watching the movie “White Christmas,” with her family on Christmas Eve. Luke Durham takes the opportunity to travel, and typically flies somewhere with a warmer climate on the day after Christmas. He does note, however, that he enjoys celebrating the holiday with his family in Nashville in the days before Christmas and always has a “real” tree for the occasion.

Whatever your holiday traditions, we at DICTA hope that you cherish this special time of year with those closest to you. See you in 2017!

Below is a short list of a few Knoxville events held during the holiday season: WIVK Christmas Parade Christmas in Chilhowee December 2, 2016 December 9, 2016 7:00pm 6:00pm-9:00pm Gay Street Chilhowee Park Tour de Lights New Year’s on the Square December 16, 2016 December 31, 2016 Downtown Market Square 7:00pm Ball drop at Midnight

ASK MCLAWYER

Question Presented: Dear Mr. McLawyer,

I represent a borrower in the preparation of several documents, including a promissory note. The promissory note includes this common language as an “Event of Default:” “failing to make any required principal or interest payment(s) under the Note within ten (10) days after written notice sent by Lender.” The remedies provision then provides for the standard remedies upon the occurrence of any event of default, but the remedies section does not require that the notice and right to cure be given before suit is filed. I am insistent on including in the remedies section that the remedies are available upon the occurrence of any event of default “and only after the lender provides notice and the right to cure.” The other attorney looks at me like I am crazy and insists that the additional language in the remedies section is not necessary.

The other attorney is a good friend of mine, but this has turned into a friendly battle on principle. Am I right that the remedies section should provide that the remedies are only available after the required notice and opportunity to cure? Back me up here!

Discussion and Analysis:

Unfortunately, I will not be much help to you because I must

respectfully disagree with your position. Note that the answer to this question depends on facts, circumstances, and contractual interpretation that is far outside the scope of your question and the information I have available. However, if an event of default is expressly defined as “failing to make any required payment(s) under the Note within ten (10) days after written notice,” the written notice is an express condition precedent to the payment default. In other words, there is no event of default without the required notice, and including the requirement to provide written notice again in the remedies section, which is presumably only applicable with an “Event of Default,” is likely superfluous.

Also note the case of Fed. Nat. Mortg. Ass’n v. TN Metro Holdings XII LLC, No. M2012-01803-COA-R3CV, 2013 WL 2146440, at *4 (Tenn. Ct. App. May 14, 2013). In TN Metro Holdings, the plaintiff filed suit against the defendants without providing the written notice required in the contract, and the plaintiff argued that the allegations in the complaint sufficed as written notice. The trial court ruled that a complaint can satisfy the notice requirement, but the Tennessee Court of Appeals disagreed. The Court ultimately concludes that the lender’s complaint alleging default was not effective notice when the intent and purpose of the notice requirement was to allow the parties an opportunity to avoid default and litigation if possible.

There are numerous issues and circumstances that can affect this analysis, so I unfortunately cannot provide a global answer. With the information I have, however, I would give you a “crazy look” too. Sorry.

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

December 2016

DICTA

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LEGAL MYTHBREAKERS By: David E. Long Leitner, Williams, Dooley & Napolitan, PLLC

NONSUITS AND CONTRACTS

Tennessee Code Annotated sec. 28-1-105 (the “savings statute”) is a remedial provision of law that allows a party to nonsuit and recommence an action within one year after a judgment that does not conclude the party’s right of action. It is liberally construed and the courts are instructed that its purposes are broad and liberal and not to be subjected to a narrow construction.1 Section 28-1-105(b) was added to address the issue of tolling agreements in contracts and provides that a nonsuit may be taken and refiled within a year of an agreed upon limitation (as opposed to a tolling) of the statute of limitations in contact cases. Subsection (b) by its language does not address actions in tort, but agreements to toll or alter the statute of limitations in various tort cases have been upheld by the courts in Tennessee.

Given the ability to toll or alter a statute of limitations by agreement, the language of the agreement purporting to do so is controlling. The Tennessee Supreme Court recently addressed the agreement to toll the statute in Circle C Construction, LLC v. D. Sean Nilsen, et al.2 The case involved a professional negligence claim between lawyer and client. Circle C had a judgment rendered against it in federal court. Circle C appealed the judgment to the Sixth Circuit Court of Appeals. The attorneys for Circle C entered into an agreement to toll the statute of limitations on the professional negligence claim until the Sixth Circuit rendered its decision on the appeal. The recital clause of the agreement stated, in part, the desire of the agreement was “…to extend the Filing Deadline without prejudicing [Circle C’s] rights to assert claims….” The operative language of the agreement provided the original statute of limitations “…shall be tolled so that the statute of limitations will not expire until a period of One Hundred Twenty (120) days after the [6th Circuit’s opinion resolving all issues in the appeal.]

Circle C filed its professional negligence lawsuit outside of the original statute of limitations but within the tolled statute of limitations pursuant to the agreement. It then nonsuited the lawsuit and refiled outside the tolled date of the statute of limitations but within the one year provided by the savings statute. The defendant filed a motion for summary judgment, arguing the claim was barred because the claim was filed outside the time provided by the tolling agreement. Both the trial court and the Court of Appeals upheld the defendant’s summary judgment motion, finding the tolling agreement provided an outside date to file the lawsuit, regardless of the provisions of the savings statute. The Tennessee Supreme Court granted Circle C’s permission to appeal to address the issue.

Circle C argued the intent of the agreement was not to prejudice any rights it might have, including the right to rely on the savings statute, regardless of the tolling date. The defendant argued the tolling agreement made it clear any prosecution of the lawsuit had to be maintained within the agreed 120 day date after the Sixth Circuit opinion. The language of the agreement stated “[i]f Circle C desires to assert claims for professional negligence, it must do so on or before the Termination date.”

The defendant argued the recital clause did not affect the operative terms of the agreement. The defendant argued alternatively the recital provision of the agreement only applied to Circle C’s right to assert claims that existed on the effective date of the agreement. Since there was no fling and thus no right to nonsuit on that date, the recital provision did not extend to include rights of nonsuit and refiling outside the 120 day period. In support of the argument, the defendant cited a body of case

28

law holding that a recital clause, while it may explain “why” the parties entered into an agreement, does not normally form a material part of the agreement itself.3

The Tennessee Supreme Court disagreed and reversed both the trial court and the Court of Appeals, reversing and remanding the case. The Court held “’the rights and obligations of contracting parties are governed by the law in effect when they entered into their contract , [and existing law] becomes as much a part of the contract as if specifically incorporated therein, and, in the absence of evidence of contrary intention, the parties must be held to have contemplated the application of that law to the terms of their agreement.’”4 The Court noted the savings statute had been in effect many years prior to the agreement and was in effect at the time the tolling agreement was executed. It held…”[a]ccordingly, in the absence of any evidence of contrary intention, the savings statute applies to this agreement that extended the statute of limitations.”5 The Court held the contract as a whole, including the recital clause, indicated the intent of the agreement was to allow Circle C to exercise any and all rights it had, including the right to nonsuit and refile under the “new” statute of limitations “…in the absence of any language in the agreement divesting it of this right.”6

The defendant also argued the language of the savings statute itself only applies to cases with limitations imposed by a rule or a statute of limitation. The Court disagreed, holding the agreement itself was an agreement to extend, or toll, the statute of limitations. It did not create a contractual limitation period; it simply extended the original statute of limitations. It was thus distinguishable from other cases holding the savings statute inapplicable to contractual limitations periods. In short, the agreement was an agreement to extend a tort statute of limitations and was not a contractual limitation.7

In the written opinion, the Court pointed out several times the agreement itself did not address the savings statute and intimated the result may have been different had the agreement done so. Thus, had the agreement specifically stated the savings statute was inapplicable and/ or replaced contractually, rather than extended the original statute of limitations, the decision may have been different. The result of this case highlights in terms of the savings statute, and other existing laws, any contract that purports to alter existing rights must be specific enough to evince the intention of the parties to do so. Moreover, the opinion also highlights the fact the parties need to pay attention to the recital clauses of contracts. Clauses of this nature that state the “intention” of the overall agreement may be used to explain or otherwise inform the material clauses of the contract so long as they do not directly contradict material clauses.

E.g., Frazier v. East Tennessee Baptist Hospital, Inc., 55 S.W.3rd 925, 930 (Tenn. 2001).

No. M2013 02330 SC R11 CV (Tenn., March 7, 2016).

3 Id. at 9.

4 Quoting, Ellis v. Pauline S. Sprouse Residuary Trust, 280 S.W.3d 806, 814 (Tenn. 2009) (internal quotation marks and citations omitted)(emphasis added).

5 Id. at 5. (emphasis added).

6 Id. at 5.

7 Id. at 7-8.

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DICTA

December 2016

BENCH AND BAR IN THE NEWS This “members only” column is published each month to share news and information among KBA members. Submissions should be limited to 75 words and will be edited for space and other considerations. Email submissions to mwatson@knoxbar.org by the 10th of each month.

FAITH AND JUSTICE LEGAL ADVICE CLINIC SET FOR DECEMBER 3 The Faith and Justice Legal Advice Clinic will be held on December 3, 2016, at First Apostolic Church, 5020 Pleasant Ridge Road, in conjunction with Legal Aid’s regular Saturday Bar Clinic. From the beginning, the goals has been to build a coalition of faith leaders in the Knoxville area and to host legal advice clinics at places of worship to make give people a less intimidating environment to talk to a lawyer.

LAET’s Regular Saturday Bar will be moved to First Baptist that day. Participants in the Faith & Justice Alliance will invite congregants from their churches, synagogues, and mosques to bring their legal questions as well. If you are willing to help make the Faith & Justice Alliance work, please contact us: Kathryn Ellis (kellis@ LAET.org), Bill Coley ( bcoley@hdclaw.com) or Ian Hennessey (ihennessey@londonamburn. com).

NEED GUIDANCE IN A SPECIFIC PRACTICE AREA? One of the best kept secrets of the Knoxville Bar Association is our Mentor for the Moment program. We want to let the secret out and make sure that our members use this wonderful resource. It’s really simple to ask a question of our helpful volunteer mentors. Log in to the members’ only section of www.knoxbar. org or check out the list in the KBA Attorneys’ Directory and begin your search! Our easy-touse website allows you to search by last name or by subject area experience.

LMU WINS 4TH PLACE Lincoln Memorial University’s John J. Duncan Jr. School of Law took fourth place at the 28th Annual National Criminal Procedure Tournament at the University of San Diego School of Law this past weekend. The Knoxville-based team competed against 35 other teams from across the country. Team members Emily Persinger and Erin Wallin advanced to the semi-finals and were recognized for Best Petitioner’s Brief. Persinger also was honored as the 10th place oralist in the competition, which featured 72 individual competitors.

December 2016

OFFICE SPACE AVAILABLE: • Corner of Westland Drive and Pellissippi Parkway. Former legal office. Excellent condition. 3,456 Sq.Ft. Highly visible with easy access to interchange. Phone system installed. Lease or Purchase opportunity available. For further information, contact Oliver Smith Realty (865) 584-2000.

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A perfect office space available with signage on Peters Road. The office has just been renovated and ready for new occupants.

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

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Office Building for Sale at 616 W. Hill Avenue. The 3,442 SF building is centrally located and is available for $465,000.

Review the listing at www.kaarcie.com/ listing/299773149. Contact Daniel Odle, Conversion Properties, at (865) 246-1331.

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

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

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

Terri L. Daugherty Law Office of Jennifer P. Craig Michael A. Devore Peterson White, LLP Adam Duggan Paine | Bickers LLP Patricia M. Greer Luke P. Ihnen London Amburn, P.C. Sarah D. Jarrard Robertson Overbey Samuel C. Louderback Egerton, McAfee, Armistead & Davis, P.C. David L. Morehous Morehous Legal Group, PLLC Hon. Marcia Phillips Parsons U.S. Bankruptcy Court Eastern District of Tennessee, Greenville Ann C. Pederson Finkelstein, Kern, Steinberg & Cunningham Hon. Nicholas W. Whittenburg U.S. Bankruptcy Court Eastern District of Tennessee - Chattanooga Joseph Z. Winders Fox and Farmer New Law Student Members Phebe L. McLin Jared Allen Karla Mendez Tyler C. Brown Chase D. Moore Camille DeBona Erin K. Phillips Katelyn R. Dwyer Ashley L. Roberts Leah E. Fitzgerald Hollie E. Russell Savannah J. Flowers Benjamin Salton Joseph E. Gonzalez Derek L. Scott Jennifer L. Henszey Charles Sharrett John M. Herron Gianna S. Spence Kelsey T. Jones Anneve M. Waithe Danielle M. Knight Taylor Ward Kendria Lewis Brent Woolsey Jessica D. Lovely Mila L. Yarbrough Jenna Macnair Victoria E. Young Shanndor A. McClain

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

PRO BONO PROJECT By: Kathryn Director

Ellis

To put this in perspective, I’m writing this article just a couple of days after Donald Trump became our President-Elect. So far, there have been no official cabinet appointments announced and no specific policies put into play. But, there has certainly been a lot of reaction from all sides. So much so that my initial article has been scrapped.

I had written a perfectly pleasant article letting you all know that Legal Aid of East Tennessee’s Forging Justice Pro Bono Celebration on October 28 was a success. Thanks to all of the law firms and local companies who sponsored the event, and to all of the attorneys and other LAET supporters who attended the event, we raised nearly $36,000. That amount is nearly triple what we raised at last year’s Pro Bono Celebration. That is a testament to how much our community supports LAET and our mission. The money we raised came from sponsorships, from ticket sales, from independent donations, from the silent auction (which included many items from local artists and locally owned businesses), and from donations made in honor of Doug Blaze, who was inducted into the Donald F. Paine Pro Bono Hall of Fame. And, I think everyone who attended had a good time – I truly hope so!

Rather than spending another thousand words letting you know about the event, however, this week has pushed me to tell you about something else. In October you all showed your support for LAET by attending Pro Bono Month clinics and attending our Forging Justice event. Just a little over one week into November and many of you have shown your support for LAET and our mission in a different way. You have come directly to us and said, “what can I do to help?” The results of the election have moved you to ask this.

But, here is what matters most. It has moved you across party lines, across gender lines, across race lines, and across any other lines I could come up with. Some of you have said, “I want to help you with something that relates to civil rights.” Others have said, “my experience is in representing landlords, but if you have a tenant who needs help, please call me.” And, nearly 60 of you attended a Veterans Day CLE at the UT College of Law on improving Access to Justice for veterans.

As attorneys, we have a better understanding than many of the political process and of how politics can influence laws. But, as a profession, we also have an inherent desire to help people. No one I know became an attorney to spend a lifetime hurting other people. Regardless of which side of the courtroom or the mediation table we are on, we all want to help people going through difficult situations reach the best possible outcome for everyone involved.

Personally, as each of you has approached me, it has become clear to me that what I want to focus on and what I think of as priority needs may not be what each of you wants to focus on. The beauty of Legal Aid of East Tennessee’s work, however, is that we truly can find something for everyone.

If you have a focus on business, let us know and we can connect you with a group interested in establishing themselves as a 501(c)(3). If you have a focus on contracts, let us know and we can connect you with clients needing help with contract disputes. If you have a focus on landlord/tenant law, we have plenty of clients to connect you with! If you don’t think your direct practice of law would fall into a category needed by LAET, but you are a trained Rule 31 Mediator, let us know that you are available for Pro Bono mediation.

Also, remember, three hours of your time at a clinic is three hours of help our clients would not otherwise receive. Although the Tennessee Mark Your Calendars: Supreme Court encourages all Tennessee attorneys to donate at least 50 hours of their time each year to Pro Bono work, this is still an unattained goal by many. * November 30 (12:00-2:00) – Veterans Advice If you can’t donate a full 50 hours, Note 9 of the Tennessee Supreme Clinic at the Public Defender’s CLO Court’s Rules of Professional Conduct Rule 6.1 states, “Such financial support should be reasonably equivalent to the value of the hours of service * December 3 (9:00-1:00) – Faith & Justice that would have otherwise been provided.”

And, this is important, every donation of time or money helps!!

Alliance Advice Clinic at First Apostolic As we move further away from November 8, I hope we do not move Church further away from the current focus on wanting to help and wanting to make a difference locally. * December 10 (9:00-12:00) – Blount County Whether it is next week, next month, or next year, when you have time to help and want to help, please reach out. I can find you something to do and Saturday Bar at LAET’s Blount County I will enjoy the challenge of doing so.

Office

* January 11 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO

The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 502 S. Gay Street, Suite 404 • Knoxville, TN 37902

phone (865) 525-3425 e-mail:kellis@laet.org fax (865) 525-1162

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Q: A:

THE LAST WORD By:

Jack H. (Nick) McCall

After a year of contentiousness and lack of civility on multiple fronts – in our nation, state and even our legal system--it seems like civility and respect for our fellow citizens may be on the wane. What are your thoughts, Judge Thomas, on this topic, how the seminal case of Miranda v. Arizona relates to civility, and where we as lawyers, judges, and citizens can go from here?

THE HONORABLE D. KELLY THOMAS, JR. Tennessee Court of Criminal Appeals

Conflict resolution is the bedrock of our system of government and laws. It is what separates us from uncivilized societies.

This year, we celebrated the fiftieth anniversary of the Supreme Court’s decision in Miranda v. Arizona1. The theme underlying Miranda’s holding as to the right against self-incrimination is the principle that a government must afford respect and dignity to its citizens – even those who stand accused of a crime. How the government will treat its citizens taken into custody is a major theme of that case.

One of the problems suffered by discussions of what Miranda means in the national conversation is that most of these discussions arise after the fact. The press and public look at Miranda after someone is accused of having committed a crime and the Miranda rights have been invoked but law enforcement has not followed them, and then the accused person goes free. It is important to recall that the Miranda rule exists not to protect dangerous criminals; it exists to protect the rights and dignity of accused citizens. When Miranda is implicated, we do not yet know if the accused is actually guilty of a crime. I get tired of hearing that a case was “dismissed on a technicality” because the principles of Miranda have been applied. I wonder if the Framers thought that the Fourth, Fifth and Sixth Amendments were mere “technicalities.”

Q: Do judges and lawyers have a duty to treat individuals with civility during judicial proceedings in the same way the government must afford respect and dignity to its citizens?

A: The civility we expect judges to demonstrate to lawyers and litigants alike affirms the central concept of Miranda: the dignity and respect that government shows its citizens.

The judiciary is just one aspect of this, and the same dignity that is central to Miranda must be demonstrated in the course of judicial proceedings.

Citizens see in the courtroom how their government, through judges, treats conflict resolution, and that informs the conclusions and views that citizens form of their government in action. These broader conclusions as to the legal process and how a case is resolved are every bit as important – maybe more so – than the observer’s conclusion as to the individual case’s outcome. A litigant or observer might disagree with the outcome of a particular case but accept that the process is fair and appropriate – i.e., not feeling cheated by “the system.” If, however, a citizen does feel cheated by the system that cannot be a good thing for the legal system at large.

The behavior of lawyers is also central to the public’s perception of the judicial system. Observers and litigants draw conclusions, too, as to how lawyers operate and if they cheat or do not, or engage in personal attacks on witnesses or the other lawyers. If a lawyer cheats for his client’s benefit, that client might be satisfied, but others who see that happen will form negative conclusions about the legal system and how it works.

Q: What is the consequence of judges and lawyers failing to treat individuals with respect and dignity in the courtroom?

A: We are all part of the same system in the public’s eye. When a judge or lawyer breaks the law or cheats, it erodes everyone’s confidence that citizens can expect to be treated fairly under the law. What kind of message does that send to our fellow citizens? Does that encourage some of our citizens to try “self-help measures,” to take the law into their own hands?

A loss of confidence in our legal system can breed fear and distrust. It can also, in the current environment, yield legislative responses that can create bad laws and policy decisions. If enough people get into their heads that the system is not working, there are legislators who may respond by adopting some pretty radical “solutions.”

Q: So, what do we do?

A: We need to better inform people to ensure they understand the legal system.

First, our lawyers need to take every opportunity to speak in schools and take part in the education process. We need to inform students of what lawyers do, why we do it, and why it matters to everyone. Either that or students will get “the news” from those bloggers and tweets that are often nothing but misinformation.

Also, each of us in the legal system needs to remember – every day – that when a person is abused or not treated with civility, not only does it harm the person being wronged, but also it affects the judge or lawyer causing the abuse. Hurting others eats up the soul of the victimizer.

I am not advocating being anything other than a strong lawyer or a staunch advocate here – nothing is better than a good, fair fight in the courtroom – but, that’s not the same as taking unfair advantages. This applies to all of us, lawyers and judges. Lawyers are expected to act in their clients’ best interest, but that does not give a license to cheat and break the rules.

All of us – lawyers (and judges too) – are more than just “hired guns.” It’s a total package: everyone involved in the legal system influences the opinions of our fellow citizens. It directly affects the level of confidence that our citizens must have in our government and legal system. It really disturbs me that so many people seem to have such a low opinion of lawyers, when lawyering is a most noble profession; after all, the lawyers are the workers who flesh out and support our system of government and laws on a daily basis. What could be more important?

1

384 U.S. 436 (1966).

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

December 2016

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