Legal Update: Tenn. Farmers Mut. Ins. Co. v. DeBruce: The Injured Plaintiff; An Incidental Beneficiary, or an Indispensable Party in Declaratory Judgment Actions . . . Page 11 Management Counsel: Law Practice 101: ‘TIS THE SEASON: Spread Good Cheer with Holiday Gifts But Beware of the Grinch . . . Page 23
A Monthly Publication of the Knoxville Bar Association | December 2018
DO YOU NEED TO CARE ABOUT BLOCKCHAIN AND CRYPTOCURRENCIES?
Barristers Annual Charity Golf Tournament – October 25 On October 25th, 25 teams participated in the Barristers Annual Charity Golf Tournament at Holston Hills Country Club. Due to the generous support of participants and sponsors, over $6,000 has been raised for the Barristers’ charitable activities of the Hunger & Poverty Relief Committee. The Barristers Athletics Committee would like to thank all of the golfers and our sponsors for their support.
PLATINUM CORPORATE SPONSORS:
LIQUID GOLD SPONSOR: YeeHaw Brewing Company
SILVER CORPORATE SPONSORS: Cbiz Benefits & Insurance Services, Inc. Image Matters NovaTech Pitts & Lake, P.C. The Trial & Litigation Company
HOLE SPONSORS:
Brandon’s Awards & Engraving Gary Cobble, Construction Consultant Knoxville Executive Suites Kramer Rayson LLP LBMC London Amburn PrintEdge Pugh CPAs Swafford Insurance TCV Trust & Wealth Management Woolf McClane
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DICTA
December 2018
In This Issue
Officers of the Knoxville Bar Association
COVER STORY 16
December 2018
Do You Need to Care about Blockchain and Cryptocurrencies?
CRITICAL FOCUS
5 President Keith H. Burroughs
President Elect Wynne du Mariau Caffey-Knight
Treasurer Hanson R. Tipton
Immediate Past President Amanda M. Busby
Secretary Cheryl G. Rice
KBA Board of Governors Charme P. Allen Maha Ayesh Jamie Ballinger-Holden E. Michael Brezina III Kathryn St. Clair Ellis
Stephen Ross Johnson Elizabeth K.B. Meadows Mary D. Miller Carrie S. O’Rear T. Mitchell Panter
M. Samantha Parris Robert E. Pryor Jr. Mikel A. Towe
The Knoxville Bar Association Staff
It’s The Most Wonderful Time of the Year
Wynne Caffey-Knight
Child Support Tips
Tenn. Farmers Mut. Ins. Co. v.DeBruce: The Injured Plaintiff; An Incidental Beneficiary, or an Indispensable Party in Declaratory Judgment Actions
Confidentiality Provisions in Settlement Agreements
‘TIS THE SEASON: Spread Good Cheer with Holiday Gifts But Beware of the Grinch
7 9 11
21 23
Tammy Sharpe CLE & Sections Coordinator
Jonathan Guess Database Administrator
Lacey Dillon Programs Administrator
Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org Tracy Chain LRIS Administrator
Shari Holt LRIS Assistant
Volume 46, 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 is the official publication of the Knoxville Bar Association
Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Elizabeth B. Ford Joseph G. Jarret F. Regina Koho Matthew R. Lyon
Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Elizabeth Towe
Managing Editor Marsha Watson KBA Executive Director
DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. December 2018
DICTA
Attorney Profile Practice Tips Legal Update
Schooled in Ethics
Management Counsel: Law Practice 101
WISDOM
6 Marsha S. Watson Executive Director
President’s Message
Hello My Name Is
Lauren Smith
10,000 Steps - A Tribute
Meditation
The Tennessee Law Lab, the State’s First Law Incubator, Opens in Knoxville
The Same Coin
Undocumented Workers: Knowledge of Employee’s Status Is Key
Note-Taking, Journaling and Mindfulness Gadgets and Apps
8 12 15
Outside My Office Window Time Out
Around the Bar
19 Of Thermometers and Thermostats 22
24 25
Legal Myth Breakers
Gadgets
Well Read
Franklin D. Roosevelt: A Political Life
26
27
28
Your Monthly Constitutional
Lincoln’s Apple
Long Winded
Brother Can You Spare A Dime?
Life in Law and Harmony
Leadership Is an Inside Job
COMMON GROUND
2 4 10 20 20 29 30 31
Barrister Golf Tournament Section Notices/Event Calendar Annual Meeting Notice Bar Hopping Barrister Bullets Bench & Bar in the News Pro Bono Project Last Word
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EVENT CALENDAR & SECTION NOTICES
event calendar
Section Notices
There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. Alternative Dispute Resolution Section
The ADR Section plans regular CLE throughout the year. To have your name added to the section list, please contact the KBA office at 522-6522. If you have a program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Bob Stivers (386-1630).
Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. Join the Bankruptcy section for a two-hour CLE on “Bankruptcy Case Law Update” featuring Tom Dickenson and Greg Logue on December 11. The next “Pro Bono Debt Relief Clinic” will be held on February 9, 2019. 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 Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. To have your name added to the section list, please contact the KBA office at 522-6522. 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 Hedrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. 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 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. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chair 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 Section 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. 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 section, please contact Leah McClanahan (545-4260) or Ron Mills (215-2050). Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440. New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2016 will automatically be opted-in to the section. To have your name added to the section list, please contact the KBA office at 522-6522. For information about the Section, please contact Section Chairs Liz Anne Bowden (637-1980) or Sam Louderback (546-0500). Senior Section The KBA Senior Section will meet next on Wednesday, December 12 at Calhoun’s on the River. The program title is “Russian Propaganda and Social Media Targeting of American Voters” and will feature Natalie Manaeva Rice, Center for Information and Communication Studies, University of Tennessee. The luncheon will be held from 11:30 a.m. to 1:00 p.m. The price includes an entree, side item, salad and beverage. Please indicate your choice of Crab Cakes or Lemon Chicken. Register online by clicking December 12 in the Event Calendar at www.knoxbar.org. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307). Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. To have your name added to the section list, please contact the KBA office at 522-6522. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963) or Patrick Slaughter (637-6258).
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DICTA
December
3 Singo 3 ADR Section CLE 4 Law Office Tech Committee Meeting 7 Ethics Bowl CLE 11 Professionalism Committee Meeting 11 Bankruptcy Section CLE 12 Veterans Legal Advice Clinic 12 Senior Section 12 Barristers Election & Holiday Party 13 Lunch & Learn 14 Annual Meeting & Election 17 Diversity in the Profession Committee Meeting n 17-21 Video Replay CLE n 26-28 Video Replay CLE n n n n n n n n n n n n
January
8 8 9 9 10 10 16 21 n 31 n n n n n n n n
Professionalism Committee Access to Justice Committee Veterans Legal Advice Clinic Barristers Meeting Lunch & Learn Judicial Committee Board of Governors Meeting Diversity in the Profession Committee Meeting Bar Leaders Meeting
Mark Your Calendar Law Practice Today Expo April 11 & 12, 2019 December 2018
PRESIDENT’S MESSAGE By: Keith H. Burroughs Egerton, McAfee, Armistead & Davis. P.C.
IT’S THE MOST WONDERFUL TIME OF THE YEAR My wife Fran has always been an early riser, popping out of bed each day before sunrise and often before the alarm sounds. I on the other hand am not, preferring rather to ease into the day when my body says it has had enough rest. Beginning the morning after Thanksgiving and every morning thereafter until December 25, I am gently awakened by Fran’s voice singing softly in my ear the first few bars of “It’s The Most Wonderful Time Of The Year.” During that time, my term as President of the Knoxville Bar Association will come to an end at the Annual Meeting scheduled for December 14 at 8:30 a.m. in the Main Assembly Room at the City County Building. It is hard to believe that a year has come and gone since I took the reigns as President of the KBA. I must admit that it has probably been the most fun year of my 28-year career to date. We have enjoyed many fabulous programs and hours of volunteer service to our Bar and community. Through it all, I have had the opportunity to meet and make new friends with many of you whom I might not have otherwise come in contact. Thank you so much for allowing me this opportunity. It has been a great run. I want to take this opportunity to thank all of you who have taken an active role in making our Bar Association and its activities a huge success this year. First and foremost, I want to thank the members of my family and my law firm family for their support and encouragement this year. I am so fortunate to have such a strong support system. Thanks so very much. Next, I want to thank Marsha Watson and the outstanding KBA staff for all they do and have done to operate and manage our Bar Association. We are so incredibly fortunate to have all of you as part of the KBA team. I also want to thank my long-time legal assistant, Amy Massengill, for all her efforts to see that I was in all the right places at the right times, and for all of her efforts to meet both our law practice and Bar Association deadlines this year. I could not have possibly managed this year without her. This year started off with a bang with a Bar Leaders event in January led by couples Brooklyn Sawyers-Belk and Lamont Belk, Jamie Ballinger-Holden and Mike Holden, and Cynthia Deitle and Kristina L. Norris. Each of these couples acted out vignettes to illustrate the negative impact of implicit biases of others they confront on a daily basis. Following each vignette, the panel and participants engaged in lively discussions about the implicit biases revealed in each of the vignettes. It was an eye-opening experience. In April, we spent a day and a half at our annual Law Office Technology and Management Exposition learning about new technologies and marketing and management strategies to improve our law practices. The excellent programming for the Expo developed by the Law Office Technology and Management Committee, Co-chaired by Robin Askew and Stephen Ross Johnson, was outstanding, and our Judicial Roundtable luncheon speaker, Hallerin Hilton Hill, shared his inspiring story about his years of mentorship to Chris Blue. In May, we celebrated Law Day. The program this year was entitled “Separation of Powers: Framework for Freedom.” The panel, Chaired by US Magistrate Judge Debra C. Poplin, and panelists US Attorney for the Eastern District of Tennessee, J. Douglas Overbey, Tennessee Attorney General Herbert Slatery III, General Counsel, Governor’s Office, Dwight E. Tarwater, and Knox County Circuit Court Judge, Division I, Kristi M. Davis, engaged in a panel discussion concerning the importance of the separation of powers of government. Their insights regarding the competition for powers by the three branches of government were both entertaining and enlightening. The Faith and Justice initiative, Co-chaired by Bill Coley and Ian Hennessy, was yet again a huge success this year in promoting several Faith December 2018
and Justice legal advice clinics. These clinics allow people to visit different houses of worship around the Knoxville area to consult with volunteer lawyers to assist them with their legal needs. A big thank you to Bill and Ian for your continued efforts in expanding the good work of our Bar for the community through this initiative. Also, a special thank you goes out to two of our newest members of the Bar, Liz Anne Bowden and Sam Louderback, for their extraordinarily successful year as the inaugural Co-chairs of the New Lawyers Section. Under the leadership of Liz Anne and Sam, the New Lawyers Section presented seven continuing legal education programs to our newest lawyers practicing three or fewer years, four social events for these new lawyers to be able to get together, share ideas and network with one another over food and beverages, and two community service projects. Liz Anne and Sam did a phenomenal job leading this new Section of the Bar and it was both active and successful. Thanks to both of you for your great work. Some folks that often get overlooked are the editors for our magazine, DICTA. Under the leadership of the DICTA editors, Cathy Shuck, Chris McCarty and Melissa Carrasco, and the Publications Committee members, our Bar Association is able to turn out eleven informative and professionally written and published magazines each year. The Editors and their Committee identify topics, identify and secure authors, review and edit every article, and do it all over again each month. Thanks to Cathy, Chris and Melissa for their tireless efforts in making sure that the KBA turns out an award-winning magazine each and every edition. In September, we enjoyed two significant events in the life of our Bar. In early September at our annual Tennessee Supreme Court Dinner, we were honored to have as our keynote speaker Birmingham attorney, Ashby Pate. Ashby was as entertaining as he was motivational, sharing his story of a young man’s error in judgment that got him in hot water. Through the kindness and mercy of the Judge before whom Ashby appeared, Ashby was spared the punishment his offense would ordinarily merit. Ashby’s personal account reinforced the importance and responsibility we have as lawyers to attempt to help those in need. In the words of the Judge, we were reminded of his admonition to Ashby that “to whom much is given, much is expected.” I want to thank all of you who have reached out to me to express how much you enjoyed Ashby as our keynote speaker that evening and the significance of his message. Through the extraordinary work of Judge Debbie Stevens and Amanda Morse, Co-chairs of the Diversity in the Profession Committee, we were able to present Memphis native Vicki Clark as our speaker for our late September program entitled “Diversity and Inclusion: A Call to Action.” Vicki brought us all together to challenge our thinking and organizational cultures to place equal focus on inclusiveness as diversity and to develop a cultural competence to one another’s differences. Vicki was an extremely entertaining speaker and thanks to Judge Stevens, Amanda and the Committee, the program was a huge success and attended by more law students and attorneys than ever before. Thank you both for developing such a wonderful program. As I have mentioned before, the Tennessee Supreme Court proposed an unprecedented number of changes to the Court’s Rules this year. Under the leadership of Chancellor John F. Weaver and Garry Ferraris, the Professionalism Committee tackled each new assignment, often with short deadlines, to review, analyze and make recommendations to the Board of Governors concerning appropriate responses to each proposed rule change. The Professionalism Committee met every deadline, allowing the Board of Governors sufficient time to consider the Committee’s recommendations and to comment on each proposed Supreme Court Rule change. In addition, the Committee reviewed and recommended changes to our Guidelines for Professional Courtesy and Conduct. Thanks to both of you and your Committee for your service to the Bar.
DICTA
(Continued on page 6)
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HELLO MY NAME IS . . . By: Jennifer A. Dobbins Lipsey, Morrison, Waller & Lipsey, P.C.
LAUREN SMITH Attorney Lauren Smith is driven by her passion, international travel. Her trips to England, France, Italy, Ireland, and many countries in the Caribbean – sometimes spanning over two weeks – fuel her busy career as an associate attorney with the estate and probate firm, Kizer & Gammeltoft, P.C. “I’m a big believer in experiencing other countries, to dive into a new culture and meet new people. I always return with a renewed appreciation for home,” she says. East Tennessee is home for her. Raised by a family of teachers and educators, she grew up in Greeneville with an identical twin sister, Lindsey. Growing up with a twin was sometimes a challenge, but Lauren considers herself extremely lucky to have been born with a built-in best friend. “Lindsey is a physical therapist, and I wonder if we chose such different careers to establish our own identities instead of just being the ‘twins,’” she says, laughing. A graduate of Greeneville High School, Lauren aspired to attend the University of Tennessee, in part for its academics and in part to cheer on the Tennessee Volunteers. She graduated with a double major in History and Political Science. Her double major reflected her interests in business, finance, and history, all of which she says intersect in estate law. After graduating from undergrad, Lauren enrolled at UT Law. One transformative moment in law school was her time as a student attorney in the Wills Clinic, which allowed her to meet with clients, interview them regarding their wishes for their estates, and draft documents to carry out their wishes. Even before Lauren graduated law school, the Wills Clinic set her legal career as an estate planning attorney into motion. At Kizer & Gammeltoft, Lauren says one of the most valuable aspects of her work is her interaction with other attorneys and the staff. She appreciates the mentoring and instruction provided by the experienced attorneys at her firm. “There is a team mentality, and everyone is willing to help. On just about any given issue, I know that someone in our office has seen it before or has some amount of expertise and that
their door is always open,” she reflects. The best part of any workday for Lauren is meeting with clients. She enjoys the opportunity to inform her clients about their different options for estate planning and to ensure that they understand every clause in their estate-planning documents. She explains, “I am grateful for the opportunity to bring my clients peace. Often, planning for what will happen after they die has been something that has weighed on them for years, and when they finally go to an attorney to address their concerns, it’s a huge relief.” Outside of work, Lauren enjoys spending time with her family, attending concerts, and being active and hiking with her Australian Shepherd, Max, and her sister Lindsey. “We will try out any dogfriendly trail, but our favorite hikes are the Alum Cave Trail and Margarette Falls,” she says. Lauren and Lindsey tailgate at most UT football games, and they have rooted for the Vols at many of the men’s basketball home games this season. Lauren is an active member of Sevier Heights Baptist Church and loves spending time with her church family, especially while participating in service projects. The church shows its commitment to the community through “Here for Knoxville Days,” which range from visiting nursing home residents, landscaping and beautification for urban schools, and preparing care packages for local foster families. Over the next five years, Lauren plans to continue to expand her estate and probate practice with the goal of increasing the amount of time she can work face-to-face with clients – and of course, she can’t wait for her next trip abroad. The KBA welcomes this talented and cosmopolitan attorney.
IT’S THE MOST WONDERFUL TIME OF THE YEAR (Continued from page 5)
A big shout out goes out to the Functions Committee, Co-chaired by Courtney Read and Emily Stulce, for organizing the Golden Gala for February 9, 2019. That evening, we will honor the 80 members of our Bar who have been licensed 50 years or more. This event promises to be a wonderful evening of recognition and celebration of those lawyers. Finally, thanks to Committee Co-chairs Ruth Ellis and John Eldridge for organizing our annual Memorial Service on November 16. It is important to honor those members who we have lost in the past year to remind us of the great work that has gone before all of us that contributes
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to the high quality of our Bar Association. Looking back on this year makes me very proud and extremely honored. I thank all of the members of the Bar Association who have served on the Board of Governors, Committees, Sections, and other initiatives of the Bar Association this past year. We have an incredible membership of volunteers, always willing to lend a helping hand to the KBA and its members. For me, this entire year has been the most wonderful time of the year. Thank you for all you have done to make 2018 another successful year in the life of the KBA.
DICTA
December 2018
AT TO R N E Y P R O F I L E By: Cheryl Rice Egerton, McAfee, Armistead & Davis
MEET KBA PRESIDENT-ELECT WYNNE CAFFEY-KNIGHT Wynne du Mariau Caffey-Knight. It’s an exotic name carried by a self-proclaimed Army brat born in Germany whose namesakes are the wind in the poplar trees and a French chateau where her parents lived for a time before her birth. If you have practiced law in Knoxville for any length of time you have probably met Wynne; but if you haven’t gotten to know her yet, allow me to introduce you. Wynne stands out in a crowd. Not only is she a tall, attractive brunette with a ready smile, she’s an experienced litigator, a confident advocate and a leader who is often found in the midst of the action. Wynne is the proud granddaughter and daughter of a father and son who were both West Point graduates. Her grandfather, the first senior officer to land on Utah beach at D-day and therefore, the ranking officer, was later appointed Judge Advocate General for the United States Army. Her father, an engineer by education, also fought in World War II, Korea and Vietnam and served in Europe before bringing Wynne, her mom and Wynne’s three older siblings stateside to the Washington, D.C. area not long area after Wynne was born. From there, the family was stationed in Huntsville, Alabama until Wynne was about 12, at which point they settled in Knoxville. Wynne attended Tyson Junior High School and West High School and graduated from the University of Tennessee with a degree in Human Services, minoring in business administration and psychology. Looking for something more rewarding to pursue than bartending after college, Wynne visited the career center at the University and tested to see where she might best be suited. The results directed her to cosmetology or farming, but while she likes to garden and has nothing against getting dolled up on occasion, Wynne decided to heed the strong encouragement of her mother and enrolled at the U.T. College of Law where she obtained her JD in 1991. After law school Wynne joined the firm of Paine, Swiney & Tarwater, LLP as the firm’s only female attorney and quickly set to work earning her litigation chops. She tried her first case her first week with the firm, surprising the Court by demanding her client receive a jury trial. Wynne honed her litigation skills over the next 20 years defending hospitals, physicians, and others against claims of professional negligence and product liability. In 2011, Wynne moved to the west Knoxville firm of Elmore, Stone & Caffey PLLC and broadened her practice to include commercial and construction litigation and a few other areas. Since at least 2011, Wynne has regularly been named one of Knoxville’s Top Attorneys, recognized as a Super Lawyer, and included among U.S. News’ Best Lawyers. During law school, Wynne was in the same section with her current law partner, Scott Elmore, and they, along with their respective spouses were among a group who spent their years in law school and as young lawyers gathering to study, December 2018
“prepping” for Rump Court, celebrating weddings and welcoming the children that began arriving once Wynne and her classmates had a couple of years in practice under their belts. Wynne’s two children, Meagan and Richmond, were born in the early years of her law practice. A busy lawyer and dedicated mom, Wynne carved out time to be engaged in her children’s lives. She cheered Meagan on from the sidelines of the soccer field and wore Seymour blue and gold at Richmond’s Friday night football games, held their hands through doctor visits and saw that homework got done. Meanwhile, she reviewed deposition transcripts and prepared for hearings in the evenings after they had gone to bed. Wynne often brought her kids with her to bar-related events, and fondly recalls participating in one KBA Annual Fall Hike with her daughter, Meghan, then a toddler, on her shoulders. In 2012, Wynne married Wayne Knight in a barn that Wayne built for her in Seymour, Tennessee on the acreage where the couple’s home sits today. Wynne and her husband enjoy parenting their combined family of four (almost grown) children and their several cats and dogs. They both love the outdoors and spend many weekend hours on the tractor mowing, tending their very large vegetable garden and relaxing by their pool with family and friends. Other times Wynne and her husband explore the highways and byways of our region by motorcycle. She continues to participate in the KBA Fall Hike each year and, on occasion, plays hooky from the office to spend the afternoon with friends on a trail somewhere in the beautiful mountains of east Tennessee. All the while, Wynne has been active in the East Tennessee Lawyer’s Association for Women, being elected as its President in 2009. In 2016, Wynne received ETLAW’s prestigious Spirit of Justice Award. Wynne is also a past-President of the statewide Tennessee Lawyers’ Association for Women, having chaired its Committee on Elected and Appointed Officials and CLE Committee, and worked as a member of TLAW’s Empowerment Conference planning committee. Throughout her legal career, Wynne has remained actively involved in the Knoxville Bar Association, serving numerous KBA committees, sections and projects. Inspired by both her mother and an older sister who survived breast cancer, Wynne led ETLAW’s Race for the Cure team for a number of years. She is currently a member of the Board of Directors for Komen East Tennessee. In thinking about the challenges existing within our community and our Bar, Wynne recently shared with me that the concept of servant leadership and the ongoing opioid crisis are two things currently on her heart. As you can see, the notions of service and sacrifice that Wynne’s family instilled in her by their example are reflected in her life daily. Our local community, the Knoxville Bar and our profession are all beneficiaries of her work ethic, her passion and her adventurous spirit. Thank you, Wynne, for serving as KBA President in 2019!
DICTA
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OUTSIDE MY OFFICE WINDOW By: Robbie Pryor Pryor, Priest & Harber robertpryorjr.blogspot.com
10,000 STEPS - A TRIBUTE Long before I met him, I would see him carrying flowers and doing card tricks downtown. One evening, he yelled out the name “Donnie!” It took me awhile, but I realized he was yelling out to me, running me down from behind. I told him my name was Robbie, and kept on moving, not wanting to be hit up for money. As I walked away, he said, “I’m truly sorry, friend. I swear there’s someone out there that looks just like you. His name is Donnie.” He smiled, his neglected teeth shining in the Gay Street lamps, his piercing eyes revealing he understood my initial measure of him. He was accustomed to the response. He didn’t ask for anything. I ducked into my building, knowing I’d met someone who would come back around. I was fascinated. Three or four weeks into my downtown residency, I set out one night to the office, primarily because I needed to hit my step goal on my Fitbit (watch) - yes, I’ve become “That Guy.” I saw him near the entrance to my building just as my watch exploded with the indication that I’d crossed over 10,000 steps for the day. I knew we were going to talk. I pushed in all my chips and thrust myself into the interaction. “Hey, man! I need a card trick!” He was startled. He’d put his cards up and was heading to wherever he put his head down at night. He might not have been used to someone running him down, but he clicked to the “On” position in the blink of an eye. “I called you Donnie one day, didn’t I?” Again, the smile. “But your name’s Robbie, isn’t it?” he said. I was amazed he remembered. “What’s your name?” I asked. “Rodney,” he said, then he turned to a script he’d repeated a million times. “Here you go, Robbie. I’m gonna lay one on you, cause I know you’re gonna lay something nice on me.” His voice was distinctive - something like Ernest T. Bass from Andy Griffith, true southern and tinged with a lisp. He was diminutive, flat-faced, a beggar who didn’t beg. He was a showman. He pulled the cards from his pocket. They were weathered and bent. He shuffled and the trick was on. It came with hand gestures, voice inflections, challenges and a touch of magic. I got my money’s worth. Rodney was my friend. Instantly. I asked him where he learned his card tricks, and he regaled me with stories from his youth and how some were learned from others and some he taught himself. In his performance he had a vaudevillian flair and made you to feel as though you might have stumbled into a carnival, but his act came with something special - he was interested in the audience. He looked me in the eye, moving in close, and told me he liked me. He said, “You don’t judge or look down on people,” and went on to suggest that showing respect to one another is the most important thing we can do. I agreed. I gave him a ten and walked inside, ashamed I’d ever tried to avoid him. With my first show I signaled to Rodney that I was happy to talk to him anytime, but that it wasn’t my intention to pay him every time. Otherwise, I’d be broke. He processed the message. It never stopped him from talking to me. I’ve seen him at least twice a week since. He never asked for money. He would simply ask if he could show me a card trick.
when I saw him after she’d returned to Washington, he asked me about her and expressed sorrow that he hadn’t met her. Every time thereafter he asked me about her. When I saw him two weeks ago, I was with my wife. I introduced her to Rodney, and told him that since he’d missed Shelby I wanted him to do a card trick for Nancy. I asked him to do his big one, the one he loved the most, the one that was the centerpiece to a story of disrespect a man had shown him one night in front of Suttree’s. “There’s one in every group,” he said. “They run you down, call you a bum, and shoo you away like you was nothing but trash.” He did the trick and enjoyed telling how he’d won a bunch of money off the man who had disrespected him. He was proud. He walked on after the trick, promising he would save a new one for my birthday that was approaching. It was the last time I saw him. Rodney died Monday. When I heard the news, I was stunned and heartbroken, knowing that a little bright spot in my downtown life was gone. I felt I’d discovered a downtown treat, one that was mine alone. I searched for an obituary, knowing full well that I’d probably never discover the man’s full name, much less his obituary. I put a note in my elevator in an attempt to gather information about him. To my delight, when I pushed “enter” to my google search, my screen lit up. Facebook was full of tributes and stories. He’d been featured in numerous YouTube videos. The Black Lillies and their lead singer, Cruz Contreras, had written a song about him. An article on Knoxnews - a fine tribute - ran as the result of the author’s relationship and the social media attention. The love and “Rodney stories” poured in. I was astonished that my friend was a celebrity. I learned so many saw Rodney in the same light. I found it particularly touching that he wrote a letter to Judge Phillips in support of Scott West, the key developer of Market Square, upon his federal sentencing. He asked for the Judge’s leniency given that Mr. West had always treated him, a homeless man, with respect. A candle-light vigil is being planned for Rodney Fuson. I’ll be there. In these strange times it brings me great hope, and tremendous pride in my fellow Knoxvillians, that there are so many people who recognize the beauty and goodness in the homeless man with a deck of cards. I mourn with those who befriended him, regret he never met my Shelby, and embrace the warm remembrance that visits me every time my silly watch tells me I’ve traveled 10,000 steps on these streets.
I ran into him before the Florida game and told him my daughter was coming to visit. I told him I wanted him to do a card trick for her while she was here, and the pride was palpable. He remembered, and
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December 2018
PRACTICE TIPS By: R. Deno Cole McGehee, Cole, Guindi and Walling, P.C.
CHILD SUPPORT TIPS Whether you’re a new admittee or a seasoned practitioner with little or no family law experience, representing a client with child support issues requires both substantive knowledge and procedural know-how. This article is limited in space and will focus on handling child support issues in Knox County.
cost of health insurance, past medical bills, cost of daycare, and time spent with the child or children.
In order to gain substantive knowledge about child support law, read the child support guidelines.1 Download the child support worksheet to your computer, tablet, or iPad, so you can have it available at court hearings and for client meetings to discuss possible outcomes.2 Attend as many CLE programs as possible. Observe child support proceedings. Unfortunately, there are numerous proposals likely to overhaul the child support laws next year, many of which are unpopular outside of, and within, the minority of, the advisory committee charged with suggesting proposals to amend the Rules.3 One path to developing a family law practice is to be placed on the various appointment lists by speaking with the Chancellors, Judge McMillan, Magistrates Lindsay-McDaniel, Simpson, Gresham, and Briggs, and their respective judicial assistants. Leave a stack of business cards with each court. Instead of waiting for your phone to ring, sit in the courtroom to receive immediate appointments, which will allow you to meet your client who will be facing contempt charges. Upon meeting your client, make certain you obtain as many contact telephone numbers and addresses as possible from them, as clients who are facing contempt charges for failure to pay child support are sometimes transient and will change cellphone numbers and residences often. Give your client a copy of the handout from the DHS website about courtroom decorum.4 If you practice from a home office, utilize a P.O. Box as your official address and do not reveal your home address to clients.
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If a client does not agree with a Magistrate’s findings and recommendations, he or she has five days from the entry of the findings and recommendations to file an appeal.9 In Juvenile Court, Judge Irwin hears child support appeals one day per month. The Chancellors rarely hear appeals, but they are set on “domestic days.” Judge McMillan hears these appeals on Fridays, which is his “motion day” for all cases. For further guidance, consider the KBA’s Mentor for the Moment program.
Stress to your clients that nonpayment of child support is the only debt that can send them to jail.6 Sometimes I feel the practice of law is tantamount to adult babysitting. I make it a practice to email, send letters, and call clients to remind them of their upcoming court dates and of their legal duty to do their best to pay their child support obligations. All clients should be called the day before a court date. If the child support hearing involves modification of or setting child support, your client must produce proof of their income, preferably with tax returns, year-to-date paystubs, letters from employers if paid as an independent contractor, bank statements, etc. It is also sometimes relevant to show proof of the December 2018
The Magistrates in Juvenile Court primarily conduct arraignments/bond hearings via Skype, which will not allow you to have a confidential conversation with your client. Magistrate Lindsay-McDaniel rarely uses Skype in her courtroom. The volume of cases is clearly greater in Juvenile Court, in that it requires three Magistrates to hear these cases, while Magistrate Lindsay-McDaniel hears cases for three Chancery Courts and for Fourth Circuit Court. The Juvenile Court cases are heard at the Juvenile Court located on Division Street while the Chancery and Fourth Circuit Cases are heard in the old Knox County Courthouse. All Orders or Permanent Parenting Plans containing a provision for child support must include an attached child support worksheet. Parties cannot waive the payment of child support without the Court making specific findings of the amount that would have been ordered and findings that waiving child support is in the best interest of the child or children. If your client’s child support obligation is subject to a reduction, file a petition for a downward modification to help prevent future claims of contempt. If the oldest child “ages out,” i.e. becomes emancipated, turns 18, or graduates from high school, your client’s child support obligation will not automatically be reduced. Instead, the obligor must file a petition for downward modification and the relief he or she receives can only be retroactive to the date of the filing of the petition.8
Review with your client the process for paying child support through the Central Child Support Receipting Unit and remind your client that he or she will not receive credit for direct payments to the other obligee.5 If a child support order is entered to include a wage garnishment, remind your client to pay child support until the wages are actually taken out of his or her paycheck. Failure to pay child support will authorize the State to suspend all licenses—driver, professional, hunting, etc., in addition to suspending your child support.
make it a practice to email, send letters, and call clients to remind them of their upcoming court dates and of their legal duty to do their best to pay their child support obligations.
Child support cases are generally heard by the Magistrates, who can only hear cases that are signed up through the child support office. These are called IV-D cases, named for Title IV-D of the Social Security Act. The Judges or Chancellors will sometimes hear “private” or nonIV-D child support cases without requiring you to set a hearing before the Magistrate. Such cases include emergency filings or final hearings when the finances of a case are complex and intertwined with alimony or property division issues. Local Rules generally require the Magistrate to hear child support issues, but local rules can always be suspended as the interest of justice may require.7
https://publications.tnsosfiles.com/rules/1240/1240-02/1240-02-04.20080815.pdf https://www.tn.gov/content/tn/humanservices/for-families/child-support-services/ child-support-guidelines-downloads.html 3 http://www.tba.org/sites/default/files/attach_1-pdf_red_lined_vers_of_draft_cs_ guidelines_7.16.18.pdf 4 https://www.tn.gov/content/dam/tn/human-services/documents/What_to_expect_ in_court_FINAL.pdf 5 https://www.tn.gov/humanservices/for-families/child-support-services/child- support-payment-information/paying-child-support.html 6 In re Brown, 470 S.W.3d 433, 442 (Tenn. Ct. App. 2015) 7 See, Local Rule 1 for both Chancery and Fourth Circuit Courts and Juvenile Court, Child Support Division, Local Rule 8 8 T.C.A. § 36-5-101(f)(1)(A) 9 T.C.A. § 36-5-405(e) and § 37-1-107(e) 1 2
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2018 Annual Meeting Notice
The Annual Membership Meeting The will Annual be heldMembership on Friday,Meeting December 14, 2018 at 8:30 a.m. at the Main Assembly Room of the City County Building. A will be held on Friday, December 14, 2018 at 8:30 a.m. at the Main Assembly Room continental breakfast will be at 8:00 a.m. inA continental the hallwaybreakfast outsidewill of the Main Assembly Room. of available the City County Building. be available at 8:00 a.m. in the hallway outside of the Main Assembly Room.
Download the full Annual Meeting Notice and read the candidate bios by clicking on December 14 in the events calendar at www.knoxbar.org. Nominating for the Officers andKnoxville Board of Governors of the Knoxville Association for is thecomprised upcoming of: Wynne The Nominating Committee for theThe Officers and Committee Board of Governors of the Bar Association for theBar upcoming year year is comprised of: Wynne Caffey-Knight, Chair, Robyn J. Askew, Amanda M. Busby, Hon. Kristi M. Davis, Mitchell Panter, Caffey-Knight, Chair, Robyn J. Askew, Amanda M. Busby, Hon. Kristi M. Davis, Mitchell Panter, John E. Winters and Carlos A. Yunsan. John E. Winters and Carlos A. Yunsan.
The Committee, having met, recommends that the following, all of whom are members of the Knoxville Bar Association, be placed in nomination at the The Committee, having met, recommends that the following, all of whom are members of the Knoxville Bar Annual Meeting: President-Elect: Treasurer: Secretary:
Association, be placed in nomination at the Annual Meeting:
Hanson R. Tipton Cheryl G.President-Elect: Rice Treasurer: Jason H.Secretary: Long
Hanson R. Tipton Cheryl G. Rice Jason H. Long
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 oneThere are four open positions on the Board of Governors. Three of the Board of Governor positions will be for threeyear term government/public Nominations to fill thegovernment/public open positions on the position. Board ofNominations Governors to arefillthe yearsector terms.position. The fourth is the one-year term sector thefollowing: open positions on the Three-Year Terms: Loretta G. Cravens Elizabeth B. Ford Ian P. Hennessey
Board of Governors are the following:
Rachel P. Hurt Three-Year Terms: James LorettaR. G. Stovall Cravens B. Ford C.Elizabeth Scott Taylor Ian P. Hennessey
Rachel P. Hurt James R. Stovall C. Scott Taylor
Government/Public Sector Position: Government/Public Sector Position: Hon. Suzanne H. Bauknight
Hon. Suzanne H. Bauknight
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 According to Article VI, Section 1, of the KBA By-Laws: "Nominations may also be made from the floor during the Annual good standing.� Meeting by any member in good standing."
All judges have been requested to delay court until 10:00 a.m. on the morning of December 14, 2018. to the Bylaws change approved at the Annual Meeting in 1996, members are permitted to vote by absentee Vote by absentee ballot at the KBAPursuant Office from November 30- December 13. Office hours are 9:00 a.m. - 5:00 p.m. ballot. The provisions are included at the bottom of this page.
Photo Ops
All judges have been requested to delay court until 10:00 a.m. on the morning of December 8, 2017. Wynne Caffey-Knight, 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 30 - December 13, 2018
Professional Mixer
On October 30th, the KBA sponsored a networking event exclusively for members of the Knoxville Bar Association (KBA), American Institute of Architects-East Tennessee (AIA), and the Knoxville Chapter of the National Society of Professional Engineers (TSPE). The event was successful in large part due to generosity of our sponsors Partners Development and Pinnacle Financial Partners, and we are grateful for their support.
Social 4 Kids
The New Lawyers Section sponsored Social 4 Kids at Schulz Brau on Oct. 29th. Thanks to the generosity of our attendees and our event partner, Mike Stanuszek at Tennessee Law Lab, Inc., more than 100 activity bags were given to Judge Irwin for the children who are served through Knox County Juvenile Court.
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December 2018
L E G A L U P DAT E By: Craig Holloway Trammell, Adkins & Ward, P.C.
TENN. FARMERS MUT. INS. CO. V. DEBRUCE: THE INJURED PLAINTIFF; AN INCIDENTAL BENEFICIARY, OR AN INDISPENSABLE PARTY IN DECLARATORY JUDGMENT ACTIONS? Filing a complaint for declaratory judgment is the proper action for settling a coverage dispute between an insurance company and its insured. In a recent Tennessee Court of Appeals opinion, Tenn. Farmers Mut. Ins. Co. v. DeBruce, published on August 9, 2018, the Court addressed indispensable parties to a declaratory judgment action, including a personal injury plaintiff having a sufficient interest in the action.1 It is undisputed that Brandon DeBruce was involved in an automobile accident, with Christina Wright in Hamilton County, Tennessee in December 2012.2 On the date of the accident, Mr. DeBruce was insured through an automobile policy issued by Tennessee Farmers Mutual Insurance Company (“TFMIC”).3 Mr. DeBruce’s wife notified TFMIC of the accident, and TFMIC paid for property damage to both Mr. DeBruce and Ms. Wright.4 In December, 2013, Ms. Wright filed a complaint against Mr. DeBruce in Hamilton County Circuit Court, alleging personal injury as a result of the automobile accident.5 In 2015, TFMIC filed a complaint in the Bradley County Chancery Court seeking a declaratory judgment, pursuant to Tennessee’s Declaratory Judgments Act, and based on Mr. DeBruce’s failure to notify TFMIC of the accident and failure to cooperate in the investigation following the accident.6 Although TFMIC acknowledged that Ms. Wright’s counsel had notified it of the pending Hamilton County lawsuit in January 2015, TFMIC requested a declaratory judgment that it was no longer required to defend or indemnify Mr. DeBruce in the lawsuit.7 Mr. DeBruce was personally served with the complaint for declaratory judgment; however, he did not respond and TFMIC filed a motion for default judgment.8 After a hearing on the motion, the trial court entered default judgment against Mr. DeBruce.9 In March 2017, Ms. Wright filed her motion in the trial court to set aside the declaratory judgment pursuant to Tenn. R. Civ. P. 60.02, alleging that she was an indispensable party to the action because she had “a direct interest in its outcome, as the judgment leaves Mr. DeBruce without the means to satisfy or defend himself in the Hamilton County action.”10 The trial court denied Ms. Wright’s petition to set aside the default judgment finding that while Ms. Wright had an interest affected by the outcome of the case, she was only an incidental beneficiary and that her rights rise no higher than the rights of Mr. DeBruce, which were negated by his failure to cooperate.11 In deciding this case, the Court of Appeals noted that a declaratory judgment action with missing indispensable parties raises a question of the trial court’s subject matter jurisdiction.12 The Court then determined that the trial court did not have subject matter jurisdiction to enter a declaratory judgment in Ms. Wright’s absence.13 Additionally, the Court held that the trial court did not have subject matter jurisdiction to rule on Ms. Wright’s petition to set aside the judgment.14 Having determined that the issue of subject matter jurisdiction is dispositive, the Court further addressed “indispensable parties” to a declaratory judgment and the general requirements for parties to be joined pursuant to the Declaratory Judgments Act.15 Ms. Wright asserted that the trial court applied an incorrect legal standard by determining that she was not an indispensable party, despite finding that she had an interest affected by the outcome of the case.16 TFMIC contended that the trial court has wide discretion to determine who might be necessary or indisDecember 2018
pensable parties to a declaratory judgment action.17 Both parties represented that this is a case of first impression, to which the Court of Appeals disagreed, referring back to a 1941 Tennessee Supreme Court opinion.18 Ultimately, the Court of Appeals concluded that Ms. Wright, as a person allegedly injured due to Mr. DeBruce’s actions, was a necessary party to the declaratory judgment action.19 Without the joinder of Ms. Wright as a necessary party, the trial court lacked subject matter jurisdiction and would have been unable to enter a declaratory judgment in the case against Mr. DeBruce.20 Accordingly, the Court determined that the trial court erred by applying an incorrect legal standard concerning Ms. Wright’s position as an interested party by (1) determining that Ms. Wright was “at most, an incidental beneficiary,” and (2) that Ms. Wright’s rights “rose no higher than the rights of Mr. DeBruce,” which the trial court found Mr. DeBruce had negated “by not filing an answer to the complaint in this matter and having a default judgment rendered against him in 2015.”21 The Court therefore vacated the trial court’s declaratory judgment order as void due to lack of subject matter jurisdiction and noted that a judgment entered without subject matter jurisdiction is void, and thus cannot be relied upon as dispositive of rights.22 The Court of Appeals remanded this case for either the joinder of all indispensable parties or dismissal for lack of subject matter jurisdiction.23 This case serves as a clear reminder that there are certain indispensable parties that must be named in a complaint for declaratory judgment, including an underlying tort plaintiff who filed suit against the insured. As determined in Tenn. Farmers Mut. Ins. Co. v. DeBruce, failure to name an indispensable party may result in a court vacating a declaratory judgment order.
Tenn. Farmers Mut. Ins. Co. v. DeBruce, 2018 No. E2017-02078-COA-R3-CV; Tenn. App. LEXIS 457*; 2018 WL 3773912 (Tenn. Ct. App. Aug. 9, 2018). 2 Id. 3 Id. 4 Id. 5 Id. 6 Id. at *4. (citing Tenn. Code Ann. § 29-14-101, et seq. (2012)). 7 Id. at *4. 8 Id. at *5. 9 Id. 10 Id. 11 Id. at *5-7. (emphasis added). 12 Id. at *10. 13 Id. at *10-11. (internal citations omitted). 14 Id. at *11. (internal citation omitted). 15 Id. at *11. (citing Tennessee Code Annotated § 29-14-107 (2012)). 16 Id. at *12-13. 17 Id. at *13. (internal citations omitted). 18 Id. at *14. (citing Commercial Cas. Ins. Co. v. Tri-State Transit Co. of La., 177 Tenn. 51, 146 S.W.2d 135 (Tenn. 1941). 19 Id. at *23. 20 Id. 21 Id. at *23-24. 22 Id. 23 Id. 1
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TIME OUT By: Ann C. Short The Bosch Law Firm
MEDITATION
When I agreed to write this column, I knew the day would come when I would have to tackle a certain topic. I dreaded it because I am totally unsuited to embrace the experience. I am referring, of course, to meditation. I am not adverse to meditation. I just know that I cannot stop thinking long enough to meditate – stepping off the hamster wheel of obsessive thought, if you will. Telling my brain to do nothing stresses me out. I am a type-A person; I’m driven to get stuff done, check items off my to-do list, and plan for the future. I have two speeds: on and off. “Off ” means sleep. “On” means step on the gas. The closest I get to “neutral” is when I am ill or while enduring some unending, monotonously delivered set of jury instructions. All of which is to say that I was intrigued, while recently in Barnes and Noble, when I came across “Meditation for Fidgety Skeptics,” by Dan Harris and Jeff Warren with Carlye Adler. Harris is co-anchor of “Nightline” and the weekend edition of “Good Morning America” on ABC News. Warren is a writer and meditation instructor. Adler is a journalist and co-author of three “New York Times” bestsellers. Dan’s panic attack on live television in 2004 inspired a journey that led to the book. Go to YouTube, and you can easily find the clip. “Meditation for Fidgety Skeptics” is a primer on meditation and a road trip story, about Dan’s cross-country trip with his friend, meditation teacher Jeff, as they travel in a bus to tell people about the benefits of meditation. Along the way, they meet with everyday people such as cops, military cadets, recovering addicts, and television and radio personalities. With admirable candor, Dan explains that his “nationally televised freak out” was caused by “phenomenally stupid” behavior in his personal life. Having spent years covering war zones for ABC News, Dan developed an undiagnosed depression, and out of desperation he began self-medicating “with recreational drugs, including cocaine and ecstasy.” He writes that his drug use was short-lived and intermittent, but when he wisely consulted a physician, Dan realized that his self-medicating behavior artificially raised his level of adrenaline prompting his public meltdown. Nudged by Dan’s honesty, I settled in to read his book. I have many faults, most of which thankfully I recognize and try to keep in check. Hubris is one such fault in that at times I grossly overestimate my understanding or mastery of a particular subject. Case in point is “meditation.” “Meditation for Fidgety Skeptics” offered up to me many unexpected insights and course corrections to my pre-existing assumptions. First course correction: The goal of meditation “is not to clear your mind but to focus your mind – for a few nanoseconds at a time – and whenever you become distracted, just start again.” Even better, “Getting lost and starting over is not failing at meditation, it is succeeding.” Dan blames anti-meditation prejudice on the worst marketing campaign ever -- images of practitioners sitting cross-legged with peaceful visages, intoning soothing phrases while breathing “in” and “out.” Second course correction: Meditation forces you to confront the truth that we all have a voice in our heads. Sometimes that voice is called your ego; the Buddhist name is “Monkey Mind.” The Monkey Mind is usually focused on the past and future. Okay, I plead guilty. Dan resurrects an apt Mark Twain quote: “Some of the worst things in my life never even happened.” Meditation, Dan promises – even if only one minute a day – will invite a small dose of sanity into a hectic day, will activate brain regions associated with attention and deactivate regions associated with mind wandering, and will prompt a “respond wisely, not react impulsively” approach to life issues.
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Third course correction and new insight: When it comes to the management of worry, ask yourself “Is this useful?” The “Is this useful?” mantra has not only helped me waste less energy on internally generated distress but has also allowed me to clear up bandwidth for new and different kinds of thoughts. . . . Turning down the volume on my unproductive mental nattering has given me the space to reckon with an indisputable fact: I am not fully in control. None of us is. . . . If you keep that in mind when your grand plans are subject to force majeure, it can drastically increase your resilience. Rather than dwell on “how-to” meditate, which the book covers in some detail and makes suggestions depending on current challenges, I prefer to end this column by mentioning one stop on Dan’s road trip: the Tempe, Arizona Police Department where he met Sergeant Rich Monteton, a former marine with what writer Emily Nussbasum once called “vinegar charisma.” Sergeant Monteton was in charge of skills training, in particular implementing the new Police Chief ’s meditation initiative. That initiative was driven by studies showing that, for people with dangerous jobs, meditation improved working memory, reduced the release of the stress hormone cortisol, and produced quicker recovery times after high-pressure incidents. Sergeant Monteton’s approach to the initiative was brilliant in my opinion. One of the biggest challenges of police work is not to take the anxiety and anger from the previous call into the next one. Sergeant Monteton built upon what officers were already doing en route to hit the “reset” button before confronting potentially dangerous calls; they were performing breathing exercises, which can mitigate the impact of adrenaline on fine motor skills and information processing. The department called this exercise “combat breathing.” Sergeant Monteton noted drily, “Now you’re on board, because I called it combat, right? I painted it black. It’s tactical. You’ll buy it.” Yes, Sergeant Monteton, you are correct. I will buy it. “Combat breathing” invokes for me the Shakespearean truism “A rose by any other name would smell as sweet.” It is powerful. It is protective. It is proactive. Yes, indeed. “Combat breathing.” Sign me up.
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December 2018
December 2018
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TENNESSEE CHAPTER Knoxville Area Members recognized for Excellence in the field of Mediation or Arbitration
Gail ASHWORTH (615) 254-1877
Bob ARRINGTON (423) 723-0402
Hon. Daryl FANSLER (865) 546-8030
Lewis HAGOOD (865) 546-7000
Paul HOGAN Jr. (865) 546-2200
Dana HOLLOWAY (865) 643-8720
James LONDON (865) 637-0203
David NOBLIT (423) 265-0214
Franklin NORTON (865) 971-4600
Leigh Ann ROBERTS (615) 767-5900
Mark TRAVIS (931) 252-9123
William VINES (865) 637-3531
Howard VOGEL (865) 546-7190
Check preferred available dates or schedule appointments online directly with the state’s top neutrals www.TennesseeMediators.org is free, funded by members
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December 2018
AROUND THE BAR By: Michael J. Stanuszek Founding Member, Stanuszek Law Group, PLLC CEO, Volunteer Mediation Services Chairman and President, Tennessee Law Lab, Inc.
THE TENNESSEE LAW LAB, THE STATE’S FIRST LAW INCUBATOR, OPENS IN KNOXVILLE Back in 2006, when I was a second year attorney, I decided to leave my cushy associate position at a large law firm in Cleveland, Ohio to move back to Knoxville (I went to UT Law) to hang my own shingle. People would tell me, “Being a small business owner is great! How exciting for you!” Problem: I had absolutely no clue what the hell I was doing. Not only was my understanding of the law meager at best, but my understanding of how to run a law practice was downright embarrassing. Oh, I had a business degree from college, but that meant practically nothing. And yeah, I had watched a lot of “The Apprentice,” but that only meant I knew how to fire someone like a TV actor (or a President, perhaps). But I kept grinding away, and eventually – by the grace of God – I made a niche for myself. In 2012, I noticed there was an incredible number of attorneys not practicing law because they never found a legal job coming out of law school, or didn’t feel comfortable enough in their own education and training to hang their own shingle. So instead of practicing law, they were working the perfume counter at Belk, or babysitting four year olds, or working construction. And that’s just sad; not because those jobs were below them, but because these attorneys clearly had a dream to practice law one day and gave up on it because they didn’t feel confident enough in their own abilities to go out on their own.
Membership dues are on a sliding scale based on the amount of time the member has practiced law. For new attorneys, dues are only $50/ month. For the most experienced attorneys, dues are only $200/month. We like to think that this is the best office deal you will find anywhere at anytime. The Board consists of myself as Chairman and President, Brad Morgan and Allison Starnes-Anglea, the Directors of Career Services at UT Law and Duncan School of Law respectively. Attorney Adam Moncier is our Secretary. We started accepting applications for membership in midOctober with a goal of getting five members by the end of the year. We hit our goal in three weeks, and we are looking to add even more. So, if you’re a local attorney who could benefit from a Lab membership, or if you’re a more experienced attorney and willing to serve on our panel of volunteer mentors, please contact us at mjs@stulaw.org or 865-766-4171. We believe the Lab is advancing the practice of law in East Tennessee. We hope you will be a part of it.
So that year, I decided to start an apprenticeship program for new attorneys who graduated law school without legal jobs. I hired them, put them in court everyday to take appointed work, showed them how to try cases, and most importantly, taught them how to actually practice law. The apprenticeship program was designed for each attorney to stay on my payroll for 6-12 months, and then leave my firm with 50-75 cases in their back pocket to start their own law firms. To date, I’ve had 14 attorneys graduate from my apprenticeship program, most of whom started their own firms upon leaving. The problem was, and continues to be, that there are so many more attorneys that need this type of mentorship and resources, and unfortunately, I can only hire so many. So, for the past several years, I approached the local powers that be to encourage them to start a more comprehensive program which offers these types of services to attorneys. Each year, I got the same response, “It’s on our longterm plan. Now is not a good time for us.” So this year, myself and a small group of local attorneys decided to do something about it. We formed the Tennessee Law Lab, Inc., a 501(c)(3) nonprofit and Tennessee’s first and only ABA recognized law incubator, with offices in the First Tennessee Building in downtown Knoxville. Our goal is to provide new attorneys, solo practitioners, and small law firms a solid foundation for practicing law by offering them shared office space, shared conference room space, receptionist services, phone forwarding, commercial copier/printer, ACAP assistance, and a downtown parking pass. More importantly, we provide mentorship opportunities to fill the gaps between what attorneys learned in law school and the things they need to know to actually practice law.
October 2018
DICTA
15
Do You Need to Care about Blockchain and Cryptocurrencies? (Hint: Yes)
You surely have heard a lot of chatter about blockchain and cryptocurrencies over the last couple of years. You probably have more questions than answers on these topics. Indeed, the great John Oliver described cryptocurrencies during his must-watch segment on the topic last March as “[e]verything you don’t understand about money, combined with everything you don’t understand about computers.”1 Some of your questions might include: How can money be created digitally, and how can digital holdings be protected from technological failure or hacking?2 How and why is an infrastructure designed to support a virtual currency being hailed as a game changer by manufacturers, hospitals, financial services providers, and other industries?3 And are initial coin offerings (ICOs) really creating something of value, or will they go the way of Dutch tulip bulbs4 and Pets.com?5
V
irtual currencies and the platforms on which they are built have the potential to transform industries and disrupt markets to an extent not seen since the internet revolution twenty years ago, or possibly even the industrial revolution of the late nineteenth and early twentieth centuries.
You might find it easier to simply ignore stories about cryptocurrencies and blockchain and pretend they don’t exist. This would be a mistake. Virtual currencies and the platforms on which they are built have the potential to transform industries and disrupt markets to an extent not seen since the internet revolution twenty years ago, or possibly even the industrial revolution of the late nineteenth and early twentieth centuries. Just like twenty years ago, there will be winners and losers, and it is impossible right now to separate the Pets.coms of the crypto-economy from the Googles, Amazons, and Facebooks. But just like AOL and Prodigy dial-up service evolved to each of us holding the full power of the internet in the palm of our hands, the crypto-economy will develop to improve payment systems, supply chains, the maintenance of records, and yes, even the delivery of legal services. Now that we have established that we ignore the crypto-world at our peril, what, at a minimum, must you know about it? First and foremost, we need to delineate between three concepts that are sometimes used interchangeably, but which mean different things: (1) cryptocurrencies, such as Bitcoin and Ether; (2) the distributed-ledger technology on which cryptocurrency runs, such as the blockchain and Ethereum; and (3) crypto-tokens used in ICOs, which are used to raise capital for DLT (distributed-ledger technology) - and crypto-related ventures and usually are exchangeable for services, access, or some other form of cryptocurrency.6 Once we have a working knowledge of these concepts, we can start thinking about where these technologies are headed and how they will be regulated.
Cryptocurrencies Our first mistake is thinking that Bitcoin and other cryptocurrencies originated the concept of a digital currency. Indeed, our global economy has been unmoored from the concept of a physical backing for money to some degree since the 1944 Bretton Woods Agreement,7 and completely since the “Nixon Shock” of 1971, which suspended the convertibility of the dollar into gold.8 The money that “sits” in our checking accounts, investment accounts, or wherever we choose to hold it, is really just a series of 0s and 1s. Ultimately, we are willing to trust that paper notes, and more recently electronic pay-
16
ments, are worth something because our governments’ laws, regulations, and central banks say they are. We are living in the era of fiat currency.9 Ten years ago, in the wake of the collapse of Lehman Brothers and when trust in governments and central banks was at its nadir, Satoshi Nakamoto10 sent a nine-page document, “The Bitcoin Whitepaper,”11 to a cryptography listserve mostly made of up of academics.12 Satoshi’s cover email stated: “I’ve been working on a new electronic cash system that’s fully peer-topeer, with no trusted third party.”13 In order for Bitcoin to have any chance of success, Satoshi had to create a decentralized currency that could be trusted to the same extent as a fiat currency. Satoshi attempted to accomplish this goal in three ways: (1) the blockchain network on which Bitcoin exists, in which a “community of dedicated users”14 self-regulate the network to ensure that a single, chronological chain of blocks exists, thus solving the double-spending problem and ensuring that a single unit of Bitcoins can only be transferred once;15 (2) the incentive structure, in which users (“nodes” or “miners”) receive Bitcoins in return for verifying transactions and creating blocks on the network;16 and (3) the finite number of Bitcoins, which ensures that the cryptocurrency retains or even increases in value.17 In short, what makes cryptocurrencies special to initiated believers are the characteristics of: (1) disintermediation, with no reliance on a central entity like a bank or a broker to oversee the transaction; (2) no transaction costs, because with no banks or credit card companies taking a cut or sales tax charged, it increases efficiency and allows for micropayments; (3) immediacy, with transactions taking place instantaneously, or at least within hours, depending upon how quickly the miners are working; (4) access, including for those in less developed countries with corrupt governments or even the unbanked here in the United States; and (5) security, whereby the users maintain the system and the identities of the participants are secure. Some of the dangers of cryptocurrencies include: (1) no protection from a government agency like the FDIC protecting coin holdings, so if one’s coins are held on an exchange that is hacked, they can be stolen; (2) exchange fees charged by many virtual currency exchanges, which are anathema to the spirit of cryptocurrencies; (3) use of resources by the mining process, which creates barriers to entry and has negative environmental externalities; and (4) volatility of the cryptocurrency market, which has impeded their use as a payment system.
Distributed-ledger Technology (DLT) DLT is the generic term for a decentralized, immutable, automated network in which anonymous or pseudonymous users verify, record, and broadcast digital transactions contemporaneous with their occurrence.18 The DLT on which Bitcoin operates is the blockchain; the DLT for Ether is the Ethereum network. Both DLT networks support other crypto-coins and other uses, but they operate on the same basic architecture and assumption: a “shift from hierarchical to more community-based forms of governance” in which the users, rather than central banks or government, maintain the system and verify its trustworthiness.19 This, of course, was Satoshi’s original intent: a “system based on cryptographic proof instead of trust, allowing any two willing parties to transact directly with each other without the need for a trusted third party.”20 Blockchain technology originated to support a cryptocurrency, Bitcoin, but it has myriad uses across different sectors of our economy that are only just starting to be realized. Of course, many DLTs are being built on the blockchain or Ethereum networks but are private, not public. The financial sector has been one of the most aggressive in pursuing DLT-related solutions in order to streamline payments and improve financial products and services, which is ironic given the original intent behind Satoshi’s whitepaper.21
DICTA
December 2018
COVER STORY By: Matthew R. Lyon LMU Duncan School of Law
The manufacturing sector is also using DLTs to improve effectiveness in the delivery of and payment for goods.22 Traditional supply chains are labor-intensive, inefficient, and ripe for human error. However, a supply chain that incorporates blockchain technology to measure key data points during manufacture and shipment and record them on to an immutable network can elide many of these inefficiencies. Instead of relying on traditional concepts of acceptance and rejection under the Uniform Commercial Code, the buyer and seller can negotiate terms in advance that require certain conditions to be met along the supply chain. If all of the preset conditions, each of which has been pre-scripted by coders on to the DLT being shared by the parties, are met, then the contract between buyer and seller can automatically execute upon final delivery, with no human inspection of the goods necessary. Such so-called “smart contracts” have the potential to disrupt not only the industries in which they are employed, but also the traditional legal framework surrounding such industries.23
Crypto-tokens Used in ICOs The year 2017 saw cryptocurrencies increasingly used as a means of raising capital for blockchain- or crypto-related business ventures through the ICO. In ICOs, which are somewhat of a hybrid between an initial public offering and a crowdfunding campaign,24 promoters create virtual coins or tokens and sell them to investors in return for either fiat currency or cryptocurrency. Investors are told that the tokens later can be exchanged to access the digital platform being built or to use the software being created, or perhaps for some appreciated amount of cryptocurrency.25 ICOs typically start with a white paper describing the business plan and a presale through a Simple Agreement for Future Tokens (SAFT).26 The SAFT (which derives its name from the Simple Agreement for Future Equity, or SAFE, used in crowdfunding offerings), is then often used in another round of token presales at a lesser discount to accredited investors.27 This process has been designed to comply with the federal and state securities laws in the absence of clear guidance from regulators. Of course, this assumes that the entrepreneurs offering the tokens have an interest in complying with the securities laws; not all of them do. There is no doubt that the ICO market went through a period of irrational exuberance in 2017 and early 2018. Over $5.6 billion was raised in the ICO market in 2017; that figure was exceed in the first quarter of 2018 alone.28 The ICO market settled down somewhat beginning in the second quarter of 2018; one reason for the cooling of the crypto-token market might be the statements from regulators and initial enforcement actions that have primarily targeted bad actors in the field.
Regulatory Outlook The answer is no longer whether, but when and how regulation of cryptocurrencies will occur. The Securities and Exchange Commission (SEC) has shied away from virtual currencies themselves, but has begun to actively regulate the ICO markets. In many circumstances, the tokens used in ICOs will be considered securities under the traditional Howey test,29 meaning that exchanges trading in such tokens are in violation of federal securities laws if the tokens are not registered with the SEC or subject to an exemption.30 Because the Commodities Futures Trading Commission (CFTC) treats cryptocurrencies as commodities,31 it has taken the position that it has the authority to regulate markets offering cryptocurrency derivatives products, just as it has the ability to oversee markets trading in futures contracts pertaining to more traditional commodities like oil, gas, and minerals.32 Other federal agencies, as well as some state regulatory authorities, have begun to play a regulatory role as well. Many in the crypto-community stand firm against any regulation by government entities, recalling the original libertarian principles underlying the creation of Bitcoin and the blockchain. Others, however, who seek to bring cryptocurrencies, and particularly the ICO market, into the mainstream,
understand that regulation makes the market more predictable for both entrepreneurs and investors. As the hazy regulatory picture begins to clear, it becomes more apparent that cryptocurrencies and blockchain technology are not going anywhere. These technologies may or may not change the world, as many believe. But we owe it to ourselves and our clients to familiarize ourselves with the basics. Last Week Tonight with John Oliver (Mar. 11, 2018), available at https://www.youtube. com/watch?v=g6iDZspbRMg. 2 For background on the most infamous and costly hack of a cryptocurrency exchange, see Robert McMillan, The Inside Story of Mt. Gox, Bitcoin’s $460 Million Disaster, Wired (Mar. 3, 2014), available at https://www.wired.com/2014/03/bitcoin-exchange/. 3 See, e.g., Blythe Masters, The Revolution Beyond Bitcoin, The Economist, available at http://www.theworldin.com/article/10635/revolution-beyond-bitcoin?fsrc=scn/tw/te/bl/ ed/theworldin2016. 4 Arjun Kharpal, CME’s Plan for Bitcoin Futures Mirrors Moment Just Before the 1637 Tulip Bubble Crash, UBS Says, CNBC (Nov. 2, 2017), available at https://www.cnbc. com/2017/11/02/bitcoin-futures-mirror-1637-tulip-bubble-crash-ubs.html. The rise and fall of the market for tulip bulbs in the Netherlands in the 1630s is widely considered the first speculative bubble. See generally Anne Goldgar, Tulipmania: Money, Honor and Knowledge in the Dutch Golden Age (2007). 5 Is Bitcoin the New Pets.com? The Crypto Crash of 2018 is Now Worse than the Dotcom Bust, Bloomberg (Sept. 12, 2018), available at http://fortune.com/2018/09/12/bitcoin- cryptocurrency-crash-dotcom-bubble/. Pets.com, which infamously purchased a 30-second ad during the 2000 Super Bowl, is often held out as the poster child for the many failed internet startups of the late 1990s and early 2000s. 6 See generally Kevin Werbach, Blockchain Isn’t a Revolution, Medium (June 18, 2018), available at https://medium.com/s/story/blockchain-isnt-a-revolution-it-s-two-big- innovations-and-one-promising-idea-988fca6b0fca. 7 This agreement established a system of fixed exchange rates in which all currencies were tied to the U.S. dollar, which, at the time, was backed by gold. For a recent detailed treatment of the Bretton Woods conference, see generally Benn Steil, The Battle of Bretton Woods: John Maynard Keynes, Harry Dexter White, and the Making of a New World Order (2013). 8 See Roger Lowenstein, The Nixon Shock, Bloomberg Business Week (Aug. 4, 2011), available at https://www.bloomberg.com/news/articles/2011-08-04/the-nixon-shock (revisiting the events surrounding President Nixon’s decision on its fortieth anniversary). 9 “Fiat” is a Latin term meaning “it shall be.” See Fiat Money, Investopedia, https://www. investopedia.com/video/play/fiat-money/ (last accessed Oct. 22, 2018). 10 The true identity of Satoshi, including whether he/she is a single person or multiple people, has never been determined. 11 Satoshi Nakamoto, Bitcoin: A Peer-to-Peer Electronic Cash System, (2008), available at https://bitcoin.org/bitcoin.pdf. 12 Nathaniel Popper, Digital Gold: Bitcoin and the Inside Story of the Misfits and Millionaires Trying to Reinvent Money 20 (2015). 13 Paul Vigna & Michael J. Casey, The Age of Cryptocurrencies: How Bitcoin & Digital Money are Challenging the Global Economic Order 41 (2015). 14 Id. at 77. 15 Andreas M. Antonopoulos, Bitcoin Security Model: Trust by Computation, (Feb. 20, 2014), available at http://radar.oreilly.com/2014/02/bitcoin-security-model-trust-by- computation.html (arguing that “Bitcoin fundamentally inverts the trust mechanism of a distributed system” because it “implements a trust model of trust by computation”); 16 Popper, supra note 12, at 100. 17 To prevent the devaluation of the currency, Satoshi set the time schedule for the release of Bitcoins in the code. Each block was worth 50 Bitcoins in the first four years. That was halved to 25 Bitcoins in 2012, halved again in 2016, and then will be halved every four years after that. That means the supply of Bitcoins will expire in 2041 and be capped at 21 million Bitcoins. As of November 11, 2018, approximately 17.37 million Bitcoins have been mined, or 82.7% of the total that will ever be available. See Bitcoin Block Reward Halving Countdown, http://www.bitcoinblockhalf.com/ (last accessed Nov. 11, 2018). 18 Malcolm Campbell-Verduyn & Marcel Goguen, A Digital Revolution Back to the Future: Blockchain Technology and Financial Governance, 37 No. 9 Banking & Fin. Services Pol’y Rep. 1, 1 (2018). 19 Id. 20 Satoshi, supra note 11, at 1; see also Adam Krellenstein, Distributed Ledgers, Not Tokens, Are the True Heirs to Satoshi’s Vision. Coindesk (Oct. 23, 2018), available at https://www.coindesk.com/distributed-ledgers-not-tokens-are-the-true-heirs-to- satoshis-vision/. 21 Masters, supra note 3; see also Paul Vigna, The Newest Bank Blockchain: Will This Be the Breakthrough?, Wall St. J. (Feb. 28, 2017), available at https://www.wsj.com/ articles/the-newest-bank-blockchain-will-this-be-the-breakthrough-1488285211. 1
(Continued on page 18)
December 2018
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Photo Ops
New Admittee Reception
On November 5th, the Knoxville Barristers & New Lawyers Section hosted a reception for bar admittees who were sworn in by the Supreme Court earlier that day. The event was sponsored by Pugh CPA’s.
DO YOU NEED TO CARE ABOUT BLOCKCHAIN AND CRYPTO-CURRENCIES? (HINT: YES)
It’s a Family Matter
(Continued from page 17)
Eddie van der Walt, Blockchain Tech Coming to Commodity Markets, Blythe Masters Says, Bloomberg (Oct. 8, 2018), available at https://www.bloomberg.com/news articles/2018-10-09/blockchain-tech-coming-to-commodity-markets-masters-tells lme (stating that there are “tens if not hundreds” of projects are underway to improve “notoriously complex and inefficient” supply chains). 23 See, e.g., Carla L. Reyes, Conceptualizing Cryptolaw, 96 Neb. L. Rev. 384, 397-99 (2017). 24 Paul Vigna, et al, What Crypto Downturn? ICO Fundraising Surges in 2018, Wall St. J. (July 1, 2018), available at https://www.wsj.com/articles/what-crypto-downturn-ico- fundraising-surges-in-2018-1530466008. 25 Gideon Litchfield, The Problem with ICOs is That They’re Called ICOs, MIT Technology Review (April 23, 2018), available at https://www.technologyreview.com/s/610764/the- problem-with-icos-is-that-theyre-called-icos/. 26 See The SAFT Project (https://saftproject.com/), a website that bills itself as “a forum for the discussion of a compliant framework for token sales” with a goal “[t]o develop an industry standard that protects the interests of network creators, investors, and users.” 27 Jenny E. Cieplak & Conner Griffith, Cryptocurrency and Initial Coin Offerings: Despite a Plethora of Regulators, Gaps Remain, 37 No. 4 Banking & Fin. Services Pol’y Rep. 1 (2018). 28 David Floyd, $6.3 Billion: 2018 ICO Funding Has Passed 2017’s Total, Coindesk (Apr. 19, 2018), available at https://www.coindesk.com/6-3-billion-2018-ico-funding-already- outpaced-2017/. 29 U.S. Securities and Exchange Commission, Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934: The DAO, Release No. 81207, 2017 WL 7184670 (July 25, 2017) (determining that the tokens used were securities under the four-part test of SEC v. W.J. Howey Co., 328 U.S. 293, 299-300 (1946)); United States v. Zaslavskiy, 2018 WL 4346339 (E.D.N.Y. Sept. 11, 2018). 30 U.S. Securities and Exchange Commission, Divisions of Enforcement and Trading and Markets, Statement on Potentially Unlawful Online Platforms for Trading Digital Assets, Release No. 2018-28, (Mar. 7, 2018), https://www.sec.gov/news/public- statement/enforcement-tm-statement-potentially-unlawful-online-platforms-trading. 31 CFTC v. McDonnell, 287 F. Supp. 3d 213 (E.D.N.Y. 2018); In re Coinflip, Inc., CFTC Docket No. 15-29, 2015 WL 5535736, (Sept. 17, 2015). 32 In re BFXNA Inc. d/b/a Bitfinex, Respondent, CFTC Docket No. 16-19 (June 2, 2016). 22
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DICTA
Asset Management | Trust Administration | Estate Services Since 1993, our focus has been on preserving our clients’ financial assets, managing growth, and efficiently transferring wealth from one generation to another. We work closely with attorneys to insure the coordination of our clients’ personal and financial goals.
To learn more about our services, contact:
John L. Billings, Vice President - Client Administration 865.297.4070 | tcvwealth.com A trust is not required to utilize our investment expertise. December 2018
O F T H E R M O M E T E R S & T H E R M O S TAT S By: Melissa B. Carrasco Shareholder, Egerton, McAfee, Armistead & Davis, P.C.
THE SAME COIN Civility. It is a way of interacting with other people.1 By interacting with people in a polite and courteous manner, a person proves she or he is a member of a civilization – a distinct community.2 Civility is what distinguishes the members of the community from those who are not, because the members of the community demand civility of each other. In other words, civility is an evidentiary term. It may be proved through direct evidence, like Dr. Martin Luther King Jr.’s Letter from a Birmingham Jail.
Diversity may be established by circumstantial evidence – like those who valued the lives of Robert Walker, Jr. and Echol Cole and set aside their personal comforts and safety, to head into the February cold, in order to improve the work conditions of black sanitation workers in Memphis.10 Both civility and diversity demand a kind of “dangerous unselfishness,” a willingness to turn aside from personal slights and differences, to see each other as equals, and to interact with each other as peers. This does not mean that there can be no differences of opinion. It does not mean that all opinions and actions are equal or correct. It certainly does not mean that we must mince words. Dr. King did not. He did not hide the fact that he was deeply disappointed in the position taken by his peers.
My Dear Fellow Clergymen: While confined here in the Birmingham city jail, I came across your recent statement calling my present activities “unwise and untimely.” Seldom do I pause to answer criticism of my work and ideas. If I sought to answer all the criticisms that cross my desk, my secretaries would have little time for anything other than such correspondence in the course of the day, and I would have no time for constructive work. But since I feel that you are men of genuine good will and that your criticisms are sincerely set forth, I want to try to answer your statement in what I hope will be patient and reasonable terms.3
I must make two honest confessions to you, my Christian and Jewish brothers. First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to “order” than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: “I agree with you in the goal you seek, but I cannot agree with your methods of direct action”; who paternalistically believes he can set the timetable for another man’s freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a “more convenient season.” Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.11
Then, Dr. King proceeded to do exactly that. He addressed his critics, not as his subordinates, but as his peers – his “Fellow Clergymen.” He addressed his critics, not by attacking their intelligence, education, or motives but by acknowledging that intelligent, educated people might sincerely and with “genuine goodwill” disagree with each other. He addressed his critics by refusing to take the criticism as a personal insult but instead recognizing that the criticism was of his “work and ideas.” He addressed his critics by articulating the basis for his work and ideas in “patient and reasonable terms” while sitting in solitary confinement, in a jail in Birmingham, Alabama, imprisoned for the thirteenth time, where he was denied access to even his own lawyer.4 Sometimes, the evidence of civility is circumstantial – like HM2 David Robert (Bobby) Ray, the Navy Corpsman who refused treatment for his own wounds in order to care for wounded Marines and who showed conspicuous gallantry and sacrifice in Vietnam.5 Then, there was George F. Chadwell, who stopped a generational cycle of feuding by refusing to seek revenge for the killing of his two sons.6 HM2 Ray’s conduct earned him a post-humous Medal of Honor. George F. Chadwell’s conduct earned his children, grandchildren, and all of the generations that followed, the opportunity for a peaceful life. Both men provided evidence – through actions, not words – that they were members of our national and local community. That is the essence and evidence of civility: treating people as though they are equals. That is precisely why civility and diversity are two sides of the same coin. Diversity, at its roots, literally means to “turn aside.”7 It is the idea of diverting one’s attention in order to see what is valuable about another person or perspective and to see the value others bring to the civilization. In that sense, diversity is also an evidentiary term because it too requires action. Like civility, diversity may be established by direct evidence – like Harry Burns, casting the single vote needed to ratify the Nineteenth Amendment and give all American women a voice in the laws that govern them.8 Diversity can be seen in the actions of State Representative Leonidas Dewitt “L.D.” Miller, Sr., who found the loophole in the law to give Tennessee women the right to vote in Presidential elections a full year before the Nineteenth Amendment was ratified.9 December 2018
The evidence of diversity and civility is that we start with the assumption that the other members of our Knoxville legal community are our peers, whether they sit at counsel table with you or not; whether they look like you or not; whether their work and ideas are the same as yours or not. As peers, we should engage in zealous advocacy with courtesy and demand that of each other. We should not be afraid to disagree. Disagreements can be articulated and interpreted honestly and clearly, with patience and reasonableness, and not as personal slights. In doing so, we can set the temperature for the Knoxville Bar at a level where other attorneys could only hope to practice. That is what thermostats do. See Merriam-Webster, Civility, https://www.merriam-webster.com/dictionary/ civilit, last visited Nov. 10, 2018. 2 See Merriam-Webster, Civil, https://www.merriam-webster.com/dictionary/ civil, last visited Nov. 10, 2018; see also Merriam-Webster, Citizenship, https:// www.merriam-webster.com/dictionary/citizenship, last visited Nov. 10, 2018. 3 Martin Luther King, Jr., Letter from a Birmingham Jail (Apr. 16, 1963), available at https://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html. 4 See Barbara Maranzani, King’s Letter from Birmingham Jail 50 Years Later, History (Apr. 16, 2013), https://www.history.com/news/kings-letter-from- birmingham-jail-50-years-later. 5 See M. Carrasco, Conspicuous Gallantry, DICTA (May 2018). 6 See M. Carrasco, Ending It, DICTA (Sept. 2018). 7 Online Etymology, Diversity, https://www.etymonline.com/word/diversity, last visited Nov. 10, 2018. 8 See M. Carrasco, Look for the Loophole, DICTA (Aug. 2018). 9 Id. 10 See M. Carrasco, Dangerous Unselfishness, DICTA (June 2018). 11 M. King, Jr., Letter from a Birmingham Jail.
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DICTA
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BAR HOPPING By: Brady Cody Lewis Thomason
New for 2018, Bar Hopping will highlight one of the many beautiful courthouses around the State. The trick? It is up to you to figure out where. We had great participation last month. Congratulations to Rob Frost, Felicia Fortune, Debra House, and Doug Dutton for correctly identifying the Rhea County Courthouse, which was home to the famous Scopes Monkey Trial.
Think you can name this courthouse? Email me at bcody@ lewisthomason.com with your answer. Correct answers will receive a shout-out in the next issue of DICTA. Check back next month for the reveal and a list of the big winners. Have a photo that you would like to submit? Send me an email and have it featured in an upcoming issue.
barrister bullets BARRISTER ELECTIONS & HOLIDAY PARTY
HUNGER AND POVERTY
Mark your calendar to attend the December 12 Knoxville Barristers elections and holiday party. 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. If you intend to vote, please make certain to arrive before 5:15 p.m.
The Hunger and Poverty Relief Committee would like to thank everyone who participated in this year’s canned food drive. Second Harvest Food Bank of East Tennessee will be able to provide thousands of meals to East Tennessee residents thanks to your generosity! This year instead of the Angel Tree, the Barristers will be collecting new, battery-operated toys for children served through SPARK. SPARK is a regional nonprofit agency that helps people with disabilities gain access to assistive technology and services that help them lead more independent and productive lives. Toys will be collected during at the Barristers Elections & Holiday Party (December 12), at the KBA Annual Meeting & Elections (December 14) or at the KBA Office through December 21st. For a list of toys that are accepted through SPARK, visit www.knoxbar.org/HungerPovertyReliefCommittee.
Nominees include: Vice President (Vote for 1): • Daniel Ellis, Breeding & Henry, LLC • Allison Jackson, Egerton, McAfee, Armistead & Davis, P.C. Secretary/Treasurer: • Amanda Tonkin, Social Security Administration (2) Members-at-Large: • Bryce Fitzgerald, Kramer Rayson, LLP • Luke Ihnen, American Constitution Society Mikel Towe, Lewis, Thomason, King, Krieg & Waldrop, P.C., will become Barristers President at the end of the meeting and the candidate elected Vice President will serve as Barristers President in 2020. 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.
VOLUNTEER BREAKFAST The Volunteer Breakfast is a Barristers’ project. On the fourth Thursday each month at 6:15 a.m., the Barristers’ and their volunteers serve breakfast to individuals participating in the services of the Volunteer Ministry Center. If you are interested in sponsoring a breakfast or volunteering to prepare and serve breakfast in 2019, please contact Paul E. Wehmeier at pwehmeier@adhknox.com, Matthew Knable at knablelaw@gmail.com, or sign up on the KBA’s website at http://www. knoxbar.org/KBA-News/help-volunteer-ministries.
ACCESS TO JUSTICE The next Veterans Legal Clinic is scheduled for noon on December 12, 2018, at the Knox County Public Defenders’ Community Law Office from 12:00 p.m. to 2:00 p.m. If you are interested in signing up for the Veterans Clinic, you can do so on the KBA’s website: https://www. knoxbar.org/index.cfm?pg=Upcoming-Legal-Clinics.
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DICTA
December 2018
SCHOOLED IN ETHICS By: Paula Schaefer* University of Tennessee College of Law
CONFIDENTIALITY PROVISIONS IN SETTLEMENT AGREEMENTS Can a confidentiality provision in a client’s settlement agreement cause a Tennessee lawyer to violate the Rules of Professional Conduct? One Tennessee attorney feared that the confidentiality requirements of a settlement proposed by opposing counsel would result in the violation of RPC 5.6(b), and asked the Tennessee Board of Professional Responsibility for a formal ethics opinion. With Tennessee Formal Ethics Opinion 2018-F-166, Tennessee joins the growing list of jurisdictions that have opined that certain confidentiality provisions in settlement agreements can result in professional misconduct for attorneys on both sides. The Confidentiality Conundrum: Keeping the Lawyer Silent, Too Confidentiality provisions are a common feature of settlement agreements. When a controversy settles, one or both of the parties may insist on confidentiality for a number of reasons. For example, the defendant may settle not because it admits liability, but because it judges litigation to be too expensive, risky, or reputationally harmful. The parties are generally free to contract with each other to keep certain aspects of a settlement confidential, like the value of the settlement. But how far does that freedom go? In its recent Formal Ethics Opinion, the Board addressed an increasingly common but controversial confidentiality demand: the defendants in a product liability action sought to prevent the plaintiff ’s lawyer “from discussing any facet of the settlement agreement with any other person or entity, regardless of the circumstances.” Tenn. Formal Ethics Op. 2018-F-166 ( June 8, 2018). And by “any facet,” the defendant meant any facet—the provision was intended to bar any future mention of “the incident central to the plaintiff ’s case, the year, make, and model of the subject vehicle, or the identity of the [d]efendants.” Id. Ultimately, the Board concluded that such a confidentiality provision violates Tennessee’s RPC 5.6(b) and that a lawyer may not “propose or accept a provision” that would prohibit that lawyer’s future use or disclosure of information learned in the representation, if doing so would hinder the lawyer’s ability to represent other clients with similar claims. Tenn. Formal Ethics Op. 2018-F-166 ( June 8, 2018). The Forbidden Provisions: Restricting the Lawyer’s Right to Practice In determining that Tennessee’s professional conduct rules prohibit such a restrictive confidentiality provision, the Board cited ethics opinions from no fewer than nine other jurisdictions that have recently confronted the same or similar provisions aimed at silencing a plaintiff ’s lawyer. The Board, like most of those other jurisdictions, rooted its reasoning in RPC 5.6(b). Tennessee’s RPC 5.6(b), which tracks the language of Model Rule 5.6(b), prohibits a lawyer from “offering or making,” as part of the settlement of a client’s controversy, any agreement that will restrict a lawyer’s ability to practice law. As the Board noted, the ABA has identified three distinct policy reasons behind Model Rule 5.6(b) and its prohibition of such agreements. First, the agreements harm the public by restricting their access to lawyers who may be best suited to represent them in a particular matter. Second, defendants may be motivated to settle for the improper purpose of trying to “buy off ” the lawyer. And third, the agreements create a direct conflict between the current client’s interests and those of potential future clients. See ABA Formal Op. 93-371 (Apr. 16, 1993). The Board found that the confidentiality provision here, in restricting the plaintiff ’s lawyer from ever again referencing details of the controversy (including publicly known and discoverable information), would have the effect of preventing the lawyer from litigating similar claims in the future or claims against the same defendant. Such an agreement would violate RPC 5.6(b).
What Kind of Confidentiality Provisions Are Still Fair Game? The Board’s opinion clearly proscribes one category of confidentiality provisions. What is less clear is whether other confidentiality provisions are problematic and whether a violative provision will be enforceable. Other jurisdictions have split on both questions. Tennessee’s Rules of Professional Conduct continue to permit at least “the most common confidentiality provisions,” like those that “prohibit disclosure of the terms of a specific settlement, including the amount of the payment.” Tenn. Formal Ethics Op. 2018-F-166 ( June 8, 2018). The same goes for provisions that prohibit “dissemination of the fact of or terms of the settlement agreement,” so long as “that information is not publicly known.” Id. On the other end of the spectrum, Tennessee’s rules forbid provisions that “prohibit[] a lawyer from future use of information learned during the representation or disclosure of information that is publicly available” or discoverable in other cases, to the extent that the restriction would limit the lawyer’s ability to represent other potential clients. Id. The Board’s opinion leaves a fair amount of daylight between what is permitted and what is prohibited. The opinions of authority jurisdictions may be instructive. As recognized by the Pennsylvania Bar Association (whose reasoning Tennessee’s Board found persuasive), social media’s power to quickly disseminate and amplify news makes the need for confidentiality “more acute” than ever. Pa. Bar Ass’n Comm. on Legal Ethics & Prof ’l Responsibility, Formal Op. 2016-300 (Nov. 2016). For that reason, Pennsylvania’s professional responsibility committee rejected the idea of imposing a per se prohibition on confidentiality and non-disparagement clauses in settlement agreements, finding that such clauses could be harmonized in some instances with the lawyer’s duty of confidentiality to the client under professional conduct rules. Id. Indiana has gone a step further, positively endorsing non-disparagement clauses that operate to prohibit the plaintiff ’s lawyer from making public statements about the controversy outside of the bounds of legal advocacy, as in advertising or promoting her business. Ind. State Bar Ass’n, Op. No. 1 of 2014 ( July/Aug. 2014). So long as the clauses do not prohibit the lawyer from using information learned during that controversy in the course of the lawyer’s future advocacy, in private discussions with potential clients, or in providing evidence to a party investigating a similar claim, they do not run afoul of Indiana’s professional conduct rules. Id. But Tennessee lawyers should exercise caution if they consider an Indiana-style non-disparagement clause. Tennessee’s Board, in rather broad language, observed that other jurisdictions interpret RPC 5.6(b) as prohibiting provisions “that restrict a lawyer from publicly naming the particular parties against whom their client has settled.” Tenn. Formal Ethics Op. 2018-F-166 ( June 8, 2018). One such jurisdiction is South Carolina, which flatly advises its lawyers to avoid becoming bound by their clients’ settlement agreements. S.C. Bar Ethics Advisory Comm., Ethics Advisory Op. 10-04 (2010). Beyond the disciplinary consequences of a confidentiality provision that violates RPC 5.6(b), the question remains whether a court would enforce such a provision. This issue has generated little case law, although some courts have indicated that such an agreement may be void as against public policy. Samson Habte, Confidentiality Clause Scuttles Malpractice Settlement, ABA/BNA Lawyers’ Manual on Professional Conduct, Current Reports, Vol. 33, No. 8 (Apr. 19, 2017). But beware: some courts have enforced restrictive provisions against the lawyer bound by the agreement, reasoning that disciplinary authorities are more than capable of addressing the lawyer’s ethical violation. See, e.g., Feldman v. Minars, 230 A.D.2d 356, 361 (N.Y. App. Div. 1997).
*Thanks to my research assistant Benjamin Merry, UT Law Class of 2019, for his work on this column.
If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. December 2018
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LEGAL MYTH BREAKERS By: Brad Fraser Leitner, Williams Dooley & Napolitan, PLLC
UNDOCUMENTED WORKERS:
KNOWLEDGE OF EMPLOYEE’S STATUS IS KEY Immigration issues dominate the headlines. In litigation regarding employment rights for undocumented immigrants, the case(s) of Torres v. Precision1 came to very different conclusions. While the relevant facts are largely undisputed, the law applied and conclusions drawn by the state and federal courts varied drastically. One fact remains constant: Knowledge of the employee’s status is still a critical factor.
Basic facts Ricardo Torres was an undocumented immigrant without permission to work in the United States. Torres was hired in January 2011 by Precision Industries. Torres provided a false Social Security Number. Torres reported a work-related injury about 5 months later, and Precision provided medical treatment. At some point, Torres hired an attorney to represent him. Torres was then discharged and given a Separation Notice citing “lack of work.” Precision claims it was unaware of Torres’s immigration status until after the termination.
Overview of State Litigation: Torres ‘12 Torres’s attorney filed a retaliatory discharge suit in state court in October 2012. The Defendants were listed as Precision Industries, P.I., Inc. d/b/a Precision Industries and Terry and Vicki Hedrick. Discovery and motion practice ensued, and, in December 2013, the Trial Court dismissed the suit based on lack of standing for Torres as an undocumented worker. Plaintiff appealed to the Tennessee Court of Appeals, which reversed the trial court in 2014. The Tennessee Supreme Court denied Defendants’ request for permission to appeal, and the case was remanded back to the trial court. Plaintiff voluntarily dismissed the state court action in November 2016.
Overview of Federal Litigation: Torres ‘16 In December 2016, Torres filed a new suit, this time against only one defendant, Precision Industries, Inc., a/k/a P.I., Inc., in the United States District Court, Western District of Tennessee. This diversity action alleged Precision knew when it hired him in 2011 that he was an undocumented immigrant. He further alleged that he was fired on September 7, 2012. This was allegedly the same day his attorney called to request Precision’s fax number, after which the employer’s safety manager and general manager confronted him about his workers’ compensation claim and berated him for hiring an attorney. The District Court held a bench trial. At the close of Plaintiff ’s proof, Defendant moved orally under Federal Rule of Civil Procedure 52(c) for a judgment on partial findings. This rule allows a court to “enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.” The parties submitted proposed findings of fact and conclusions of law. The District Court granted the Motion and directed a judgment in favor of Defendant.
Analysis and comparison In Torres ’12, the Tennessee Court of Appeals reversed the state trial court’s sole basis for dismissal: Plaintiff ’s status as an undocumented worker made him incapable of employment, hence unable to bring his claim. The court characterized this as a matter of standing. The court then analyzed what “rights fall within the zone of interest a retaliatory
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discharge cause of action seeks to protect and then determine whether Torres, as an unauthorized alien, possesses such rights.” The court reviewed the history of retaliatory discharge, finding the establishment of the tort the seminal case of Clanton vs. Cain-Sloan Co.,2 which established a common law tort of retaliatory discharge when the discharge was an attempt to avoid the legislative intent of the workers compensation system. Citing this as an issue of first impression in Tennessee, the state appeals court referenced various courts in federal jurisdiction that “have delicately balanced” the competing goals of immigration and labor and employment laws. Citing Clanton, the state appellate court found that depriving unauthorized workers this relief could incentivize employers to hire illegal aliens if they knew they could escape workers compensation liability. The Court found the ability to file a retaliatory discharge action was a “natural extension” of what was already permitted in Tennessee Courts, so summary judgment was improper. The case was remanded to the trial court. In Torres ’16, the District Court directed a judgment in favor of Defendant. A key finding of fact favorable to Precision was that the employer was unaware that Torres was not authorized to work in the U.S. prior to Plaintiff ’s termination. However, the District Court made “no findings or conclusions as to the substance of Plaintiff ’s claim.” The Court recognized Clanton and the workers compensation statutes in Tennessee offering relief to all employees “lawfully or unlawfully employed.” The District Court conceded Torres could receive workers compensation benefits pursuant to state law, and that if only Tennessee state law applied, Torres could obtain relief for retaliatory discharge. Yet the District Court stated that federal law and policy precluded recovery for Torres for such a claim. The Court held that the law and policy embodied in the Immigration Reform and Control Act of 1986 (“IRCA”) and articulated by the U.S. Supreme Court in Hoffman3 preempted any recovery. As noted above, the District Court found that Precision was unaware of Plaintiff ’s immigration status. The Court specifically stated that this holding was limited to situations where the employer is unaware of an employee’s true immigration status, noting that this “serves a dual purpose.” The first was to address concerns that employers may abuse immigration status by knowingly hiring unauthorized workers. Secondly, the Court stated it “maintains a consistency with federal immigration policy by ensuring that employers do not profit from their own violations of IRCA.” Torres appealed the District Court ruling to the Sixth Circuit Court of Appeals.
As it now stands Pending appellate review, it seems that in either forum the knowledge of the employer is critical. The federal court made a finding of fact that the employer did not know Torres was an undocumented worker. Torres insisted in his complaint that the employer knew. It appears if an employer knowingly hires an undocumented worker, the employee will likely be able to bring a retaliatory discharge claim. Stay tuned. 1 Torres v. Precision Indus., P.I. Inc., et al, No. W2014-00032-COA-R3-CV, 2014 Tenn. App. LEXIS 470 (Tenn. Ct. App. Aug. 5, 2014) and Torres v. Precision Indus., Inc., No. 1:16-cv-01319-STA-egb, 2018 U.S. Dist. LEXIS 120410 (W.D. Tenn. July 19, 2018). 2 Clanton v. Cain-Sloan Co., 677 S.W.2d 441 (Tenn. 1984). 3 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).
DICTA
December 2018
MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Angelia Nystrom UT Institute of Agriculture
‘TIS THE SEASON:
SPREAD GOOD CHEER WITH HOLIDAY GIFTS BUT BEWARE OF THE GRINCH ‘Tis the season. It’s that time of year again – the season of giving – when employee appreciation can go a long way in terms of employee happiness and engagement. This is no secret to employers. A recent online poll of U.S. employers found that a majority – more than 90%-planned to offer some sort of gift or reward to employees during the holidays. But, employers, before you really get into the holiday spirit and start passing out awesome holiday gifts or big Christmas bonuses, you need to keep in mind the rules around employee gifts. While you may be playing Santa and celebrating the spirit of the holidays, the IRS may spoil the fun and play the role of the Grinch (but without the heart that gets bigger). The general tax rule under Internal Revenue Code Section 61 is that all forms of compensation are subject to income tax unless specifically excluded by the Code. This rule, however, is occasionally forgotten when it comes to gift giving to employees at the holidays. While gifts are generally not considered taxable income, Section 102(c) of the Internal Revenue Code provides that the gift exclusion does not apply when an amount is transferred by or for an employer to an employee. Unfortunately, this includes holiday gifts. Thus, when an employer gives a gift, it is taxable under Section 102(c) unless another exclusion applies. The primary exception to the rule that holiday gifts and parties should be included in income is found in Code Section 132(a)(4), which excludes certain de minimis fringe benefits from taxable income. Section 132(e)(1) defines a de minimis fringe benefit as property or service, the value of which is so small as to make accounting for it unreasonably or administratively impractical. So, what does that mean for an employer? It means that an employer may gift an employee with one of these sought-after gift items without reporting them as taxable income to the employee: • Controlled, occasional employee use of the office photocopier; • Occasional snacks, coffee, doughnuts, etc.; • Occasional tickets for entertainment events; • Group-term life insurance for employee spouse or dependent with face value not more than $2,000; • Flowers, fruit, books, etc., provided under special circumstances (such as a subscription to the Jelly of the Month Club, a la Clark Griswold in Christmas Vacation); and • Personal use of a cell phone provided by an employer primarily for business purposes. It can also include some holiday gifts with de minimis value. Thus, if an employer distributes turkeys, hams, or other merchandise of nominal value to its employees at the holidays, then then value of these items will not constitute salary or wages and will not have to be reported as taxable income.
The determination as to whether an item is de minimis must also take into account the frequency with which similar fringe benefits are provided to the employee. It also must not be a form of disguised compensation. Whether an item or service is de minimis depends on all the facts and circumstances. In addition, if a benefit is too large to be considered de minimis, the entire value of the benefit is taxable to the employee-- not just the excess over a designated de minimis amount. The IRS has ruled previously in a particular case that items with a value exceeding $100 could not be considered de minimis, even under unusual circumstances. Unfortunately for our employees, gifts of cash and gift cards (cash equivalent) never fall under the exclusion, no matter how small the amount. Cash (including cash equivalents) is generally intended as a wage and usually provides no administrative burden for which to account to. Thus, a $50 cash bonus, a $15 Starbucks card, and a $30 grocery gift card (even if it may be used for the purchase of a turkey or ham) are all considered taxable income and must be reported as wages or compensation to the employee. An exception to this rule is provided for occasional meal or transportation money to enable the employee to work overtime. The benefit must be provided so that the employee can work an unusual, extended schedule. The benefit is not excludable for any regular scheduled hours, even if they include overtime. The employee must actually work the overtime. Meal money calculated on the basis of number of hours worked is considered taxable, however. Yes, the holidays are upon us. As you plan office celebrations, keep these “gift giving” rules in mind so that, after your employees are visited by Santa, they are not followed by a visit from The Grinch.
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 2018
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B I L L & P H I L’ S G A D G E T S By: Bill Ramsey Neal & Harwell By: Phil Hampton Founder and CEO, LogicForce Consulting
NOTE-TAKING, JOURNALING AND MINDFULNESS GADGETS AND APPS We were so excited when we were asked to write an article on tech “mindfulness.” As you know we are always mindful of where and when we can acquire the latest gadget(s). Then, we learned that mindfulness is defined as: a mental state achieved by focusing one’s awareness on the present moment, while calmly acknowledging and accepting one’s feelings, thoughts, and bodily sensations, used as a therapeutic technique.” That made Bill’s eyes sparkle in remembrance of his old hippie days, and the slogan “Be Here Now” and his dog-eared copy of the book by Ram Dass with the same title that still smells like sandalwood incense. So, off we went on a search for apps and gadgets that help you in “Being Here Now.” Our research revealed that we already practice an essential element of mindfulness – “journaling.” We have been practicing “journaling” for quite some time, but we did not know it was related to mindfulness. We called it “note-taking,” and we know that taking notes by writing helps you remember better than taking notes by typing. In a 2016 study published in Psychological Science, Pam A. Mueller of Princeton University and Daniel M. Oppenheimer of the University of California, Los Angeles sought to test how note-taking by hand or by computer affects learning: “When people type their notes, they have this tendency to try to take verbatim notes and write down as much of the lecture as they can,” Mueller tells NPR’s Rachel Martin. “The students who were taking longhand notes in our studies were forced to be more selective – because you can’t write as fast as you can type. And that extra processing of the material that they were doing benefited them.” You can take notes by writing on paper, or you can take notes by writing on a computer or tablet screen. You can achieve the benefits observed by Mueller and Oppenheimer either way. For writing on paper, we recommend journals by Moleskine or Leuchtturm, but there are many others available. We find that the act of note-taking on a fine piece of paper in a journal is calming, in and of itself. But, you can also take notes in apps such as OneNote, Evernote, Bear, Squid or Simple Note. There are many other notetaking apps available. There are also two systems that combine note-taking on paper, with the option of automatically uploading them to digital storage. Moleskine makes a “Smart Writing Set” that captures writing in a special Moleskine notebook and automatically transfers the notes “from page to screen.” It even features handwriting recognition, as long as your handwriting is better than that of the average doctor. But, it is expensive – it costs $199, and replacement notebooks are $29.95. A more interesting and “gadgety” system is Rocketbook (getrocketbook.com), “the endlessly and reusable intelligent notebook.” The two most interesting models of this notebook are the Everlast ($32) and the Wave ($25). The system is almost magic, especially the Wave. First, you take notes, with a special pen (that Rocketbook provides). Then, you choose a destination by designating it on symbols at the
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bottom of the page. (The destinations can be OneNote, Evernote, Box, email, Slack, Google Drive and many more, and they are designated via a free app). You then take a picture of the page with your phone or tablet, and the page automatically goes to the designated destination. You can use the handwriting recognition features of Evernote, OneNote or others if you wish. Then, when your notebook is full, you do not have to buy another one. With the Everlast, you just erase the writing with a damp cloth, and you can start over with all the pages blank again. But, the Wave has the magic. To erase the writing in the Wave, you put it in a microwave, with a mug of water on the top of the cover. When the logo turns from dark to light, the writing in the notebook is magically erased. We have no idea of how it actually works. But, “journaling” takes this concept to another level. It is more than the note-taking and to-do list making that we do. It is more like keeping a diary, and journaling can be an essential component of mindfulness. In the 1960s, people called it keeping a diary. Among the touted benefits of keeping a journal are: confronting your thoughts and emotions, exploring your curiosities, and facing your feelings head on. The reflection on these feelings in a journal are supposed you get out of your head and “Be Here Now.” Bullet Journaling is a type of journaling that has become very popular recently. There is even a web site dedicated to the practice, bulletjournal.com. There is even an instruction book and an app to teach you the method. It supposedly allows you to combine the benefits of journaling for mindfulness, to-do list creation, and note-taking for business or personal matters. There is a learning curve, but there are many who swear by its benefits. This whole mindfulness thing sent Bill searching for “Be Here Now” swag. There is a “Be Here Now” journal by Krishna Puri available for $4.99, and there is a “Be Here Now” app available on the BeHereNow network at beherenownetwork.com. Other journaling apps are: Day One (a very simple app that is super easy to use). It is free, but the premium version is $34.99 per year. Moodnotes (another simple app that helps you keep track of your moods and emotions). It costs $4.99. Journey (which uses Google Drive to sync and backup your entries). It is free as well, but there is a premium upgrade for $29.99 per year. Aside from journaling, there are mindfulness apps that help you achieve inner peace. (We do find it ironic that you can supposedly achieve mindfulness by using an app on a smartphone.) The most popular is Calm, a free download, with an optional subscription. It gives you calming sounds, voice-led mediation and “sleep stories.” Another is Buddhify, $2.99 on iOS and Android. It has a wide variety of mediations that you can personalize. Finally, there is The Mindfulness App, which is free with a trial. It features guided mediations, reminders to relax and it can integrate with other health-related apps. Be Here Now.
DICTA
December 2018
WELL READ By: Samuel R. Henninger University of Tennessee College of Law
FRANKLIN D. ROOSEVELT: A POLITICAL LIFE Meeting FDR for the first time “was like uncorking your first bottle of champagne.”1 That is what Winston Churchill said after receiving the news that FRD had passed away. You already know many things about FDR: his distant cousin, Theodore Roosevelt, served as President of the United States before him; he married another of his distant cousins, Eleanor Roosevelt; he suffered from polio; and he led our nation through both the Great Depression and the Second World War. But you might not know other things about FDR – things you can only learn by reading an excellent one-volume biography of the man. This is one of those books. And here are a few things that you will learn if you read it. Harvard. Despite being born into a life of privilege, FDR didn’t always get what he wanted. At Harvard, he failed to obtain admission to the Porcellian Club, an organization that claimed his cousin, President Theodore Roosevelt, and Supreme Court Justice Oliver Wendell Holmes, Jr. among its members. FDR called this the “greatest disappointment of my life.”2 To overcome this disappointment, however, he became more involved on campus. He joined several clubs and served as editor in chief of the Harvard Crimson, the college newspaper. His managing editor described FDR as a leader that had “a kind of frictionless command.”3 Louis Howe. One of FDR’s closest advisors was a man who shared little in common with FDR. When Louis Howe met FDR, he was a journalist in Albany. At the time, FDR was serving as a member of the New York State Senate. “Howe was known as ‘the gnome of Albany,’ and as he liked to think of himself, a slayer of political giants. He prided himself on his distinction as one of the four ugliest men in the city.”4 After helping FDR win re-election in the state senate, Howe remained a trusted advisor for the rest of FDR’s life. His passing during FDR’s first term as president meant not only the loss of a political confidant but also additional strains between FDR and Eleanor. Howe “had been unique in being able to be candidly honest to both of them.”5 Media. FDR claimed that conservatives controlled the newspapers, which “published half-truths about him and the New Deal.”6 Chief among his newspaper opponents was William Randolph Hearst. During his first re-election campaign, he analogized conservative press to Nazi propagandists: “If the Republicans could win or make enormous gains, it would prove than an 85 percent control of the Press and a very definite campaign of misinformation can be effective here just as it was in the early days of the Hitler rise to
power.”7 FDR didn’t have the greatest opinion of the media. Paralysis. When he was thirty-nine years old, FDR contracted polio. For the rest of his life, he was paralyzed from the waist down. “At that time, less than 1 percent of infected adults the age of thirty and older suffered lasting damage.”8 Despite this unlikely setback, FDR continued fighting to achieve his dreams. A few years later, he bought property in Warm Springs, Georgia, and turned it into a rehabilitation center for victims of polio. But he sought to prove to the public that he was not disabled. During twelve years as president, he only “made [one] public reference to his disability.”9 These are only a few things that I learned about FDR while reading this book. But these notes gloss over many of the more notable aspects of his life – from his relationships with close family members and friends to his actions during the Great Depression and the Second World War. For example, his marriage became so strained at one point that Eleanor offered FDR a divorce. Also, he feared losing the support of Southern Democrats for his New Deal legislation; indeed, he remained mum when blacks were lynched after trying to vote in the South. During the Second World War, he failed to convince Congress to allow persecuted Jews in Europe to immigrate to the United States. FDR fell short in many ways. His life offers a glimpse into a time that is unrecognizable today: a time when the United States allied with the Soviet Union and Joseph Stalin to defeat the Nazis, a time when the Ku Klux Klan and urban political machines divided the Democratic Party, and a time when a president who served three full terms could effectively hide his paralysis from the public. At the 1932 Democratic National Convention in Chicago, shortly before winning his first presidential election, FDR urged supporters to join him as “prophets of a new order.”10 During his life, he proved to be a prophet of a new order. No person in the twentieth century had a greater influence on our lives today than FDR. This biography explains how. Robert Dallek, Franklin D. Roosevelt: A Political Life 620 (2017). Id. at 31. 3 Id. at 32. 4 Id. at 50. 5 Id. at 243.v 6 Id. at 176. 7 Id. at 258. 8 Id. at 76. 9 Id. at 614. 10 Id. at 123. 1 2
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YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris Lincoln Memorial University Duncan School of Law
LINCOLN’S APPLE Every autumn, the Lincoln Institute at LMU hosts the R. Gerald McMurtry Lecture, a celebration of the life and lessons of Abraham Lincoln. This past October, our speaker was Dr. Brian Dirck, a noted Lincoln scholar from Anderson University in Indiana. Brian spoke to us about Lincoln’s idealism as well as his pragmatism, two traits that Lincoln likened to a golden apple surrounded by a silver frame. To Lincoln, the Declaration of Independence, with all of its soaring rhetoric about equality and unalienable rights, represented our nation’s highest ideals – the golden apple. The Constitution, flawed by its compromises with the Slave Power, represented the tarnished silver frame through which the ideals of the Declaration could eventually be realized. Lincoln understood the necessity of compromise. Lincoln was anti-slavery, but he was not, until midway though the Civil War, an abolitionist. Abolitionists, like William Lloyd Garrison, claimed the moral high ground and breathed righteous fire and brimstone. But they could not convince their fellow-citizens in the South to give up their slaves. Indeed, their activities were cited by several of the Southern states as reasons for secession. Lincoln, on the other hand, bent over backward to assure the South that he had no intention, and no constitutional authority, to ban slavery where it existed. When the South seceded anyway, Lincoln prevented a bad situation from becoming worse by protecting slavery in several loyal border states: Missouri, Kentucky, Maryland and Delaware. How different the map would have looked if those states had joined the Confederacy, stranding the nation’s capital in the middle of hostile territory. Even Lincoln’s eventual embrace of abolition, announced in his Emancipation Proclamation of January 1, 1863, was based in pragmatism: by that point, Lincoln realized that the slavery issue was already resolving itself on the battlefield, as liberated slaves ran toward Union lines. He also knew that, unless the issue was finally and constitutionally settled, a Union victory would merely set the stage for a second Civil War. Thus, in his final days, he devoted himself to the passage of the Thirteenth Amendment. Dr. Dirck attributes Lincoln’s extraordinary ability to leaven idealism with pragmatism to the fact that Lincoln practiced law for twenty-five years before winning the Presidency. Starting as a self-educated country lawyer, he eventually became the most successful corporate attorney in Illinois. And it was through his lengthy and multifaceted law practice that he developed the skills, and the perspective, that allowed him to deal with difficult people, fight when necessary, and compromise when it was possible.
my colleagues Melanie Reid and Akram Faizer. Professor Reid spoke about one of Lincoln’s most famous cases, the “Almanac Trial,” during which Lincoln convinced a court to take judicial notice of the position of the moon according to an almanac. Moonlight, or the lack thereof, was a major issue in the case, since the prosecution’s key witness claimed to have witnessed an outdoor murder in the middle of the night. Lincoln’s almanac indicated that the moon was low in the sky, not high above, as the witness had testified. Lincoln won an acquittal. But his success was marred by several allegation of unethical conduct, including a claim that Lincoln had altered the text of the almanac. There was no proof, but the allegation, like many conspiracy theories, refused to die – until 1990, when astronomers from Texas proved that the moon was, in fact, low in the sky at the time of the alleged murder.1 Professor Faizer spoke about what is easily the strangest case in Lincoln’s career: the Matson Slave Case,2 in which Abe represented a slaveowner seeking the return of his slaves. Let me repeat: Lincoln agreed to help a slave owner recover his runaway slaves. Whoa. We’ve all taken on clients we shouldn’t have, but . . . whoa. And Lincoln paid a price. He was excoriated by a local abolitionist who was assisting the runaway slaves and who had sought Lincoln’s representation. Lincoln was so embarrassed that he sought, and obtained, permission from the slave owner to withdraw and switch sides. But the abolitionist would have none of it. He was done with Lincoln. So Lincoln resumed his representation of the slave owner. Why did Lincoln do it? To please a colleague who wanted him as co-counsel? Perhaps. Because he really wasn’t anti-slavery? Unlikely. For money? Well, that’s why most of us practice law. But if that was Lincoln’s goal, it was not realized. He lost the case, and Matson, the disappointed slave owner, never paid Lincoln’s fee. I discussed Dr. Dirck’s lecture with him during a recent episode of my radio show. I also spoke to some of Professor Reid’s students, who did a great job re-enacting parts of the Almanac Trial during her presentation. It’s a fun episode. I hope you’ll take a listen to the podcast version, which is available on iTunes.
1
2
Roger W. Sinnott, Lincoln and the Almanac Trial, Sky & Telescope, August, 1990, at 186. Matson v. Ashmore et al. for the use of Bryant, (Coles County Circuit Court, October 1847).
Lincoln’s practice also trained him to deal with difficult ethical issues, some of which were discussed before the McMurtry Lecture by
Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. 26
DICTA
December 2018
LONG WINDED By:
BROTHER CAN YOU SPARE A DIME? Five point two billion dollars ($5,200,000,000.00). There’s no two ways about it, that’s a big number. Think of the things you could do with that kind of money. According to the latest US Census, the average American household earns $51,000 a year or approximately $2,000,000 over a person’s lifetime. With five point two billion dollars, you, and the next two thousand five hundred generations of your family would never have to work again. With five point two billion dollars, you could buy your own private island (Manahangi Atoll in French Polynesia is available for the bargain basement price of $8,500,000). Heck, for that price, you could buy 600 private islands and rotate your time among them. You could stage your own Broadway play for the next 120 years and even have enough left over to eat at the Carnegie and take a taxi back to your hotel. For five point two billion dollars, you could create your own army (a pretty good one): Approximately 100 M1A1 Battle Tanks ($2.3 million dollars each), a dozen F-35A Joint Strike Fighter Jets ($100 million each) and still be able to afford a few nuclear bombs ($40 million each), in case someone really got under your skin. Or, if you just wanted to get away from it all, you could build and launch a space shuttle for the estimated cost of $4.5 billion and still have money left over. The point is, it’s a lot of money. It’s more money than most of us can conceptualize (counting it out one dollar at a time would take about 150 years). It also happens to be the amount of money collectively spent on the 2018 midterm elections. (I promise this is my last column about politics for awhile). That’s right. We spent enough on midterm elections to purchase and arm a small country, and even equip it to enter the space age. And what did we get for that expenditure? The republicans picked up a couple seats in the Senate and the democrats gained a slight edge in the House of Representatives (exact numbers are difficult because several races continue to be disputed as of the writing of this column). I’m not saying these elections aren’t important. Nor am I intending to imply that we should not have the right to support a candidate of our choice, financially or otherwise. I am questioning whether or not things are starting to get out of hand. Consider this, Abraham Lincoln won the presidential election in 1860 spending the equivalent of about $2.8 million dollars in today’s money. In contrast, Marsha Blackburn spent over $9 million dollars to win a seat in the Senate . . . and Phil Bredesen spent over $11 million not to. These numbers come from mid-October reports so I am sure they are a little low, and they don’t even account for the outside money that was spent for and against the candidates. In 2010, the Supreme Court ruling in Citizens United v. Federal Election Commission struck down, as unconstitutional, those provisions of the McCain-Feingold Act which prohibited expenditures by corporations or unions from engaging in “electioneering communications” within 30 days of a primary or 60 days of a general election. In that particular case, the group, Citizens United, sought to air advertisements for a film entitled Hillary: The Movie (a movie critical of then presidential candidate Hillary Clinton) in advance of the 2008 Democratic primaries. Justice Kennedy, writing for a 5-4 majority of the Court, noted that corporations, like private citizens, have a right to engage in free speech under the Constitution and that “if the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” The decision effectively freed corporations and unions to spend money to advocate on behalf of or against any candidate, although limitations still existed on their ability to contribute directly to political candidates. In the opinion of many of its critics, the Citizens United decision opened the floodgates for dark money to influence elections. One thing seems for certain, politics is big business (way to go out on a limb and make a controversial statement, Jason). We complain that we need to “drain the swamp” and we don’t want career politicians or individuals beholden to special interests and PACs. Yet we have a system that makes it December 2018
Jason H. Long London Amburn
impossible for anyone but the uber wealthy, or the people who have been deep inside the system for years, to raise the kind of money necessary to be competitive in a race for even the most local of offices. I sympathize with the sincere politicians who want to serve out of a sense of duty (and I recognize there are several of them out there). The financial pressures placed upon them and their campaigns are simply crushing. For those of us with no interest in actually running for office, it would simply be nice if we could go through an election cycle without the constant barrage of solicitations for campaign contributions (usually at dinnertime). I get it, I really do. When you are trying to raise five point two billion dollars, there is a need to continually squeeze the turnip for every drop you can get. At some point, however, it seems like the individual contributor will get entirely lost in the shuffle. If I give $100, $500, or even $1,000 of my hard-earned money to a Bredesen or Blackburn campaign because I truly agree with the candidate and I want the world to hear my “speech,” what happens when the value of that contribution is swallowed up by the hundreds of thousands of dollars that may be coming in as dark money to support a different candidate or idea? I don’t disagree that money in a campaign is speech, entitled to constitutional protections. I don’t even disagree that corporations and unions are entitled to engage in that speech. It just seems like the speech is becoming more and more dangerous to our democratic institutions. Like yelling “fire” in a crowded theater, it seems to me we need to institute some protections to ensure that quality candidates can run for office and that we can all eat dinner in peace during election season.
DICTA
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LIFE IN LAW AND HARMONY By: Leslie L. Beale, JD Executive and Developmental Coach Profusion Strategies
LEADERSHIP IS AN INSIDE JOB If you follow the topic of leadership for any length of time, you may start to notice a disturbing pattern - one that reduces leadership to no more than a series of tips or tricks. Stand a certain way, use certain listening techniques, utilize a particular method for running meetings and - voila! - you too can be a great leader. Too often the difficult tasks that are part of outstanding leadership get reduced to a set of behaviors that we can copy and paste. Work with leaders or take on leadership yourself for any amount of time, however, and you’ll quickly learn that leadership is an inside job. The most important improvements leaders make stem from the work they undertake in improving themselves on a deeper, more personal level. It’s facing your fears, letting go of beliefs that don’t serve you, moving beyond habit patterns that keep you stuck, and realizing how you impact others and how they impact you that make the most meaningful difference in how you show up as a leader. There’s a place to focus on specific behaviors - procrastination, interrupting others, time management - but even then, it’s been my experience that the most significant and lasting change comes not in someone telling you what to do, but in you asking yourself the really hard questions. What insecurity am I masking with this behavior? What would I be putting at risk by making a change? What’s most important to me about how I show up in this situation? Often this work gets dismissed by analytical types (like lawyers) as being too touchy feely or not concrete enough. Even if you believe in its importance, deeper developmental work can feel intimidating. It requires taking honest stock of who you are, and revealing some parts of yourself that may have been hidden or at least unnoticed for a very long time. It’s the kind of work that nudges you beyond your comfort zone, calling you to find the next evolution of who you are. It requires time, patience, and courage. If you’re serious about really improving yourself as a leader, however, it’s imperative that you take on this challenge. You can get started by incorporating a few of these practices:
• Try some solitude. Solitude is a key practice for leadership. There is simply no substitute for the quiet, reflective work that can occur only when we are truly on our own. If you’re ready to really commit to improving your leadership, it requires a commitment to also finding space in your calendar for time alone. • Get good at watching. As lawyers, we are trained to be
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detailed observers. We look carefully at words, at facts, at the behaviors of the people around us. But often, we have a blind spot when it comes to ourselves. We move through life without ever really taking a step back to watch ourselves. How do we respond under stress? How well do we communicate with our colleagues, our clients, our loved ones? What triggers our worst behavior? Careful observation of ourselves, our minds, and our behaviors can do much to help us shift what holds us back as leaders.
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As you try on new habits, be more intentional. Ask yourself the hard questions as you move outside your comfort zone. What feels difficult about this for me? What seems risky about it? What do I have to give up to make this happen? Doing so will help you uncover the habits and thought patterns that are keeping you where you are. Once you see them clearly, they’re much easier to change.
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Instead of relying on the latest articles to find the next horizon for your growth, look inside instead. No author, blogger or leadership guru can know you the way you know yourself. So instead of turning control of your development over to the lat est trending topic, engage in honest self-reflection instead. What feels like your next learning edge? What is calling to you to be tackled right now? Where are you getting results or feedback that doesn’t line up with your goals?
The best leaders will tell you that the process of their evolution was neither brief nor easy. They’ll describe a struggle, a journey, or at the least, a gradual uncovering. But, it can also be the most rewarding work you’ll ever do.
PUBLIC NOTICE FOR REAPPOINTMENT OF INCUMBENT MAGISTRATE JUDGE United States Magistrate Judge H. Bruce Guyton’s current term of office at Knoxville is due to expire on June 24, 2019. The United States District Court is required by law to establish a panel of citizens to consider the magistrate judge’s reappointment to a new eight-year term. The magistrate judge’s duties in this court include presiding over the following: (1) most preliminary proceedings in criminal cases; (2) trial and disposition of misdemeanor cases; (3) various pretrial matters and evidentiary proceedings on delegation from a district judge; and (4) trial and disposition of civil cases upon consent of the litigants.
Comments from members of the bar and the public are invited as to whether the incumbent magistrate judge should be recommended by the panel for reappointment by the court. Comments should be directed to Clerk of Court, Howard H. Baker, Jr. U.S. Courthouse, 800 Market Street, Suite 130, Knoxville, Tennessee 37902. Comments must be received by December 14, 2018.
DICTA
December 2018
BENCH AND BAR IN THE NEWS How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to Marsha Watson at mwatson@knoxbar.org. SCHOLARSHIP IN HONOR OF JUSTICE RILEY ANDERSON The Tennessee Judicial Conference Foundation has authorized the creation of a Legacy Scholarship endowment in honor and memory of former Supreme Court Chief Justice Riley Anderson of Knoxville for the purpose of awarding need based scholarships to students at the University of Tennessee College of Law. Gifts may be mailed to the Foundation c/o Suzanne Keith, Treasurer, 629 Woodland St., Nashville, Tn. 37206. FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates. Click on Public Resources and select “Career
Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource.
The Knoxville Chapter of the Association of Legal Administrators (KALA) conducts a survey each year that includes general salary information and fringe benefits If you would like to purchase a copy of the survey, please contact Charlotte Welch at cwelch@opw.com. The cost of the survey is $150.00. LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources.
Russian Propaganda and Social Media Targeting of American Voters Natalie Manaeva Rice, PhD
UT Center for Information and Communication Studies
Wednesday, December 12, 2018
11:30 a.m. - 1:00 p.m. Calhoun’s on the River - 400 Neyland Drive Lunch is served at 11:30 a.m. and the program begins at 12 noon.
Price includes 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. PRICE: $35.00 (Includes tax & gratuity) Enclose check payable to “The Knoxville Bar Association”. Register online or mail check & registration form to: 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.
December 2018
3,000-plus s.f. of office space near downtown. Easy access. Downtown views. Ample parking. Two suites of five offices, plus five separate offices. Spacious, attractive lobby. Common kitchen. Highly responsive, nonprofit, landlord on premises. Call 865-525-6806 for information. Contact Frank Graffeo at 525-6806
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Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 900 sq ft. Present floor plan accommodates four offices plus a conference room and a reception area. One Level. Offices on either side occupied by long-term law firms. Very Affordable Rate with a two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911
Address Changes
Please note the following changes in your KBA Attorneys’ Directory and other office records: NancyJane B. Sharp BPR #: 032720 Breeding Henry Baysan, PC 900 S. Gay Street, Suite 1950 Knoxville, TN 37902-1823 Ph: (865) 670-8535 NJSharp@bhblegal.com
Featuring
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SALARY SURVEY AVAILABLE
THE KNOXVILLE BAR ASSOCIATION presents OVER 50 LUNCH FOR SENIOR ATTORNEYS & THEIR GUESTS
OFFICE SPACE AVAILABLE:
George C. Shields, II BPR #: 033537 City of Knoxville Law Department P.O. Box 1631 Knoxville, TN 37902-1631 Ph: (865) 215-2050 gshields@knoxvilletn.gov Meredith B. Weaver BPR #: 023492 Peterson White LLP 6330 Baum Drive Knoxville, TN 37919-9505 Ph: (865) 909-7320 meredith.weaver@petersonwhite.com
DICTA
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Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System
PRO BONO SPOTLIGHT By: Kathryn Ellis Pro Bono Director Legal Aid of East Tennessee
TOGETHER WE CAN FORGE A PATH FOR IMPROVED ACCESS TO JUSTICE On October 19, Legal Aid of East Tennessee held its Forging Justice Pro Bono Celebration at Ironwood Studios. Everyone who attended the event enjoyed delicious food prepared by Metz Culinary, Fanatic Brewing Company beer, Sugarlands Distilling Company moonshine cocktails, wine supplied by Brown’s Creek Wine & Spirits, and tasty desserts donated by Buttermilk Sky Pie Shop and Magpies Bakery. The Colonel Williams House Band kept the venue moving with live music, supported by incredible sound provided by students in the Pellissippi State Audio Engineering program. And, the silent auction this year was a huge success with donations from local artists, stores, and restaurants. Kevin Shepherd, one of the event’s many sponsors, left the event with a sense of pride. He said, “There is a positive effect in seeing fellow attorneys pulling together to support something noble and honorable. So often, as attorneys, we are adversaries in litigation. But that night, we were all brothers and sisters, working together.” Ian Hennessey added, “It was wonderful to have Chief Justice Bivins present to see all that Legal Aid of East Tennessee and its partners do for the community.” At the event, several Pro Bono volunteers, as well as a community partner, received awards for their work and collaboration with LAET. This year’s Pro Bono Student of the Year was Georgia Miller. Georgia is a recent graduate of Maryville College who started volunteering with LAET in January 2018. While attending college, working part-time, and raising her son, Brayden, Georgia devoted time four to five times a week to working with LAET’s staff attorney, George Shields. After graduating, Georgia continued to volunteer at LAET and is still doing so ten months after starting! Georgia helps Shields meeting with elderly Knox County clients at local senior centers every Monday, completes client interviews, drafts letters, and has become Shields’s “right-hand-woman.” Georgia shows an incredible level of compassion in dealing with clients, which is particularly important when dealing with elderly clients who are facing difficult and scary legal situations. Shields says, “Georgia has been more that ‘just’ an intern; she’s been an indispensable contributor to my casework. She has made a positive difference in the lives of almost 200 Knox County seniors.” We are all proud to have had Georgia working with us throughout the year and are excited to seeing her future career as an attorney develop. This year’s Pro Bono Attorneys of the Year were Bill Coley and Ian Hennessey. Since I became Pro Bono Director at LAET, I have had the pleasure of working closely with Bill and Ian to plan several Faith & Justice Alliance Legal Advice Clinics throughout Knoxville. We have held these clinics at more than ten different houses of faith in every corner of the county. Our hosts in 2018 included Crosswalk Community Church, the Muslim Community’s Annoor Academy, and Second United Methodist Church, as well as St. Patrick’s Catholic Church in Morristown. Beyond planning and volunteering at the clinics, Bill and Ian both spread the word about the collaborations in Knoxville, spoke with faith leaders and private attorneys about the benefits of the clinics for the community, and built relationships that will last for years. LAET Board Member Matt Lyon who attended Forging Justice said, “It was great to see Bill and Ian get the award for their work with the Tennessee Faith & Justice Alliance, which is a model for such programs all over the country.” This year’s Pro Bono Law Firm of the Year was Breeding Henry Baysan. The attorneys at Breeding Henry Baysan collectively support Legal Aid of East Tennessee and the Pro Bono Project by volunteering at legal advice clinics, accept-
ing individual Pro Bono cases for representation, and offering Pro Bono mediation services. Several of the attorneys at the firm, including Daniel Ellis, Shelley Breeding, and Jimmy Carter, have long histories of volunteering their time and supporting LAET. Just as important, however, when new attorneys join the firm, such as Monica Cacace, they are introduced to LAET’s clinics early. Firm’s that support associates being involved in Pro Bono work are critical to the success of LAET’s Pro Bono Project and Breeding Henry Baysan provides that support. This year’s Pro Bono Community Partner of the Year was East Tennessee Children’s Hospital for its collaboration with LAET in opening the new Children’s Health Law Partnership this year. The ability of LAET to house staff attorney Alex Brinson at ETCH makes it easier for LAET to serve members of the community who are facing difficult legal issues at the same time they are facing critical medical situations. The support of ETCH has been immeasurable. In addition, Harry Ogden was inducted into the Donald F. Paine Memorial Pro Bono Hall of Fame. Ogden joined Paine, Bernie Bernstein, Doug Blaze, and Terry Woods in the Hall of Fame. Throughout his career, Ogden has personally volunteered to assist clients through the Pro Bono project, but he has also encouraged others in his firm and in the Knoxville Bar Association to do so. Ogden has advocated for service to others and for the importance of increasing Access to Justice through such service. In presenting Ogden for induction to the Hall of Fame, Buck Lewis stated, “I believe the most important provision in the Tennessee Rules of Professional Conduct is the Preamble. Section I says that a lawyer is a ‘public citizen’ having special responsibility for the quality of justice. Harry Ogden is a model public citizen who has discharged fully his special responsibility for the quality of justice.”
Mark Your Calendars: * December 8 (9:00-12:00) – Faith & Justice Alliance Clinic at Overcoming Believers Church * December 12 (12:00-2:00) – Veterans Advice Clinic at the Knox County Public Defender’s Community Law Office * December 15 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County Office * December 18 – Outstanding Pro Bono Case Status Reports and File Closure Reports Due (e-mail: kellis@laet.org; fax 865-525-1162) _______________________________________ * January 9 (12:00-2:00) – Veterans Advice Clinic at the Knox County Public Defender’s Community Law Office * January 19 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County Office
Want to Volunteer? Fill out our new Pro Bono Volunteer Survey: https://www.surveymonkey.com/r/DCTWYFSt
Thank you to all of our sponsors, in-kind donors, silent auction donors, and guests for making this year’s Forging Justice Pro Bono Celebration such a success! Save the Date for Our 2019 Forging Justice Pro Bono Celebration October 18, 2019 The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902 phone (865) 637-0484 e-mail:kellis@laet.org fax (865) 525-1162
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DICTA
December 2018
Q: A:
THE LAST WORD By:
Jack H. (Nick) McCall
Betsy, December and the holiday season are a time of gifts. For about thirty years, you have been making and sending a very special kind of gift box to various people. Can you tell DICTA’s readers about how this morphed into your new Smile-A-Day business project?
ELIZABETH S. TONKIN, RETIRED AUSA AND FOUNDER OF SMILE-A-DAY, LLC
A: A little background: I started giving what I call “smile-a-day” boxes
or gift baskets to family and friends who were going through some kind of difficult time--whether recovering from surgery, undergoing chemotherapy, or seriously ill. Each box or basket contained individually wrapped items, to be opened one each day over a period of time--a week, two weeks or longer. As I recall, my first smile-a-day box was one I sent to my mother in the 1970s, when she was recovering from surgery. In 1991, when my father was terminally ill with pulmonary fibrosis in Florida, I was only able to spend a weekend with him each month, so sent him a box every two weeks for nearly six months with small gifts from me to open each day. These wrapped gifts were small items, nothing special or expensive – just something to make him smile and be reminded each day that I was thinking of him – such as a book, a puzzle, a lucky penny, or a magnet. Most of the smile-a-day boxes or baskets over the years were given to friends and family who needed a short term “cheer” during recovery for events such as hip replacement, breast cancer surgery, chemotherapy, etc. However, 2 ½ years ago, my niece’s daughter, at the age of five, was diagnosed with leukemia. I sent her a smile box of gifts when she started chemotherapy, and then every month, I sent her mother more things to add to it. My grandniece shared her “smiles” with her sister and brother and other patients at Vanderbilt Children’s Hospital where she spent much time. Thankfully, she is now in remission, having celebrated the end of chemo this month. She loved the smile box, and recently sent me a “smile box” with special gifts to open as I recovered from a hospital stay.
Q: So, why did you decide to start the Smile-A-Day business, and what was that process?
A: After I retired three years ago, I did some legal False Claims Act
consulting and intended to do that part-time for at least a few years. But after providing significant caregiving out of state for two elderly relatives, I decided I was ready for a change and to do something that provided a tangible benefit to others. My first step last winter was to look into getting a trademark and setting up an LLC. That was handled with help from my son Kevin and the Adams Law Firm. While the trademark application is still pending, I obtained a logo and box design through a local marketing company, started obtaining box contents, and finally ordered the sunny, yellow gift boxes printed with my smile-a-day box™ logo. The process has not been as easy as I anticipated. When I started this project, I anticipated the difficult part would be finding the gifts for the
boxes for the categories of recipients (adults by gender and children by age and gender) in the necessary quantities and at reasonable prices along with wrapping each of the gifts. I thought it would be a simple matter to find a manufacturer/printer for the gift boxes, particularly since my son Chip is the Director of the Sonoco Institute of Packaging Design & Graphics at Clemson University. Unfortunately, that has not been the case! Apparently, nobody makes nice gift boxes that you can have printed in this country. So, with assistance from Chip, I have now ordered 500 printed boxes from a Canadian company which has the boxes manufactured in China. The boxes should arrive by early December after an ocean voyage. Just hoping I will not have to deal with additional tariffs or further delays in port when they arrive! In the meantime, I was able to obtain some white boxes and have yellow labels printed for them to allow for a debut of the smile-a-day box™ at the Symphony in the Park at Ijams Nature Center in September. Smile-A-Day, LLC was one of the sponsors. In addition to sponsoring a table, we donated two of the larger smile-a-day boxes to the event’s silent auction fundraiser. Both sold and generated a couple additional sales! So, that was my “coming-out party” for the LLC.
Q: Tell us about the Smile-A-Day boxes and typical contents.
A: Currently, I have boxes available
in two different sizes – the smaller box contains 7+ “smiles” and the larger box contains 14+ “smiles.” The smaller box fits easily on a hospital bedside stand. Each smilea-day box™ features individually wrapped gifts - sure to make the recipient grin each day! Depending on the size of the box, each contains gender or age-appropriate gifts and includes items such as a card, humor or inspirational book, puzzle book, puzzle, game, craft or art project, note cards, whistle or other noise maker, stress ball, and other small smile-inducing treats. (Patients love the whistles even if hospital staff or caregivers might not!) Boxes for breast cancer patients contain items wrapped in pink or have a pink theme.
Q: What’s next for you and the Smile-A-Day boxes? A: At this point, I have some stock of the white boxes with yellow labels
available for individual sales ready to be filled. Once the boxes are in from China, I plan to fill and market them primarily to hospital gift shops as well as to sell them individually upon request by word of mouth. When I have inventory established, I will develop a website and Facebook page. And hopefully, I can continue to bring smiles to folks who are in need of a bit of cheer – definitely a change of pace from litigating! Betsy and Smile-A-Day can be contacted at home@smile-a-daybox.com.
“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 2018 DICTA
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