DICTA. December 2021 by Knoxville Bar Association

Practice Tips: Presenting Your Case to the Court: Tips from the Bench . . . Page 7 Legal Update: Lord Willing and the Creek Don’t Rise: A Look at Southeastern Water Disputes . . . Page 15

A Monthly Publication of the Knoxville Bar Association | December 2021

WELLBEING AND RESILIENCE IN THE LEGAL PROFESSION: A MESSAGE OF HOPE FOR 2022

Photo Ops

Barristers New Admittees Welcome Reception – November 9

More than 50 members joined us for the Barristers New Admittees Welcome Reception on November 9. The event would not have been possible without the generous financial support of First Horizon Bank.

Fall Hike

The Professionalism Committee hosted its annual fall hike on Saturday, November 6 at Frozen Head State Park in Wartburg.

DICTA

December 2021

In This Issue

Officers of the Knoxville Bar Association

December 2021

COVER STORY 16

Wellbeing and Resilience in the Legal Profession: A Message of Hope for 2022

CRITICAL FOCUS President Cheryl G. Rice

President Elect Jason H. Long

Treasurer Loretta G. Cravens

Secretary Catherine E. Shuck

Immediate Past President Hanson R. Tipton

KBA Board of Governors Sherri DeCosta Alley Mark A. Castleberry Meagan Collver Jonathan D. Cooper

Daniel L. Ellis Elizabeth B. Ford Rachel P. Hurt Allison Jackson Eric M. Lutton

Michael J. Stanuszek Amanda Tonkin Elizabeth Towe Carlos A. Yunsan

The Knoxville Bar Association Staff

President’s Message

It’s Aloha Time!

Presenting Your Case to the Court: Tips from the Bench

The Gift of the Business Expenses Deduction for Holiday Gifts

Lord Willing and the Creek Don’t Rise: A Look at Southeastern Water Disputes

Paying an Organization for a Client Referral

9 13 15 19

Practice Tips

Management Counsel Legal Update

Schooled in Ethics

WISDOM 6

Every Person Matters

Jason Long

Chasing the Scream, The First and Last Days of the War on Drugs

The Violent Life of Joseph Alexander Mabry II

Succession Done Well

Hilary Magacs

Missing

And the Survey Says…

Recent Holdings Tenn. Code Ann. § 56-7-105 May Not Apply To Auto Insurance Policies

Thanksgiving Pie

Don’t Forget Your Digital Assets And Legacy In Your Estate Planning

What Would George Do?

Thank You

Prepared for a Career in the Law

8 Marsha S. Watson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Jonathan Guess Chandler Fletcher Database Administrator Programs & Communications Coordinator

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

Jeanie Matthews LRIS Assistant

Dicta DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association. All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Watson (522-6522).

Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Sarah Booher Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho

Matthew R. Lyon Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Eddy Smith Elizabeth Towe

Managing Editor Marsha Watson KBA Executive Director

DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. December 2021

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Volume 49, Issue 11

DICTA

What I Learned About Inclusion and Why It Matters

25 26 27 29 31

Attorney Profile Well Read

Urban Legends

Building for the Future: Advice on Succession Planning Hello My Name Is

Boat Builders Around the Bar Legal Myth Breakers

Barrister Bites

Bill & Phil Gadgets

Your Monthly Constitutional Long Winded

Tell Me A Story

COMMON GROUND 4 20 28 28 30

Section Notices/Event Calendar Barrister Bullets Change of Addresses Bench & Bar in the News Pro Bono Project

SECTION NOTICES & EVENT CALENDAR

Section Notices

There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 522-6522. Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Section for the upcoming CLE program “Mediation: Practice & Ethics Update 2021” featuring Chad Hatmaker on December 16. If you have a program topic or speaker suggestions, please contact the ADR Section Chairs Betsy Meadows (540-8777) or Daryl Fansler (546-8030). Bankruptcy Law Section The Bankruptcy Section plans CLE programs and helps coordinate volunteers for the Pro Bono Debt Relief Clinics. Join the Bankruptcy Section for the upcoming CLE program “Bankruptcy Case Law Update 2021” scheduled for December 14. If you have a program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Marcia Kilby (362-1391) or David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. If you have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you have a program topic or speaker suggestions, please contact the Employment Law Section Chairs Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) or Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. Join the Family Law Section for the upcoming CLE program “Tennessee Family Law Update 2021” on December 7. If you are interested in getting involved, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Lawyers Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. For more information, please contact Hon. Suzanne Bauknight (545-4284) or Ron Mills (215-2050). Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you 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 activities are being planned for 2022. If you would like to get involved next year, please contact Section Chairs Sanjay Raman (607-972-6140) or Courteney Barnes-Anderson (803-341-0196). Senior Section The KBA Senior Section plans to start meeting again in 2022 for lunch. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307). Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963), Mary Miller (934-4000) or Tim Grandchamp (524-1873).

DICTA

event calendar n n n n n n n n n n

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December 3 7 7 8 8 9 10 14 14 16

Ethics Bowl CLE Law Office Tech Committee Family Law Section CLE Veterans Legal Advice Clinic Barristers Holiday Party & Elections Professionalism Webinar KBA Annual Meeting & Elections Professionalism Committee Bankruptcy Section CLE ADR Ethics CLE

January 4 11 11 12 12 13 13 19 25 27

Law Office Tech Committee Professionalism Committee Access to Justice Committee Diversity in the Profession Committee Barristers Planning Meeting Webinar CLE Judicial Committee Board of Governors CLE Committee Meeting Bar Leaders Event

Check the KBA Events Calendar at www.knoxbar.org for scheduling updates.

December 2021

PRESIDENT’S MESSAGE By: Cheryl G. Rice

Egerton, McAfee, Armistead & Davis, P.C.

IT’S ALOHA TIME! You may see the title of this article and wonder if I’m about to take off on a Hawaiian vacation. Unfortunately for me, the answer to that question is a resounding “No.” So, why this title? Well, at this moment it is very present in my mind (but is likely less so in yours), that this is my final DICTA column as KBA President. As you may know, the word Aloha is a Hawaiian word which carries several meanings. Typically, as travelers learn, aloha is a form of greeting, to say “hello,” and it is also a form of farewell, or to say “goodbye”. While it’s time for me to say goodbye to you as your President and pass the proverbial gavel to the ever-capable Jason Long, it feels in some ways as if I just said hello. Like many of the roles we take on in life, the KBA Presidency is one of those where I feel that just when I’m starting to “get the hang of it,” it’s ending. It seems like it was only yesterday that the KBA was celebrating its very first virtual annual meeting in December 2020. In reality, we are not far from the KBA’s very first “hybrid” annual meeting in December 2021. I’m so looking forward to returning to an in-person gathering of this group and the many more that will lie ahead for us in the near future. Reflecting on the 2021 bar year, I am very proud of what the KBA and its members have accomplished. Our committees and sections have rolled with their plans through COVID-19 and more. Our courts have remained open. Our legal community has continued to provide client services through a variety of challenges. We’ve all been flexible and willing to adjust our plans, professional and otherwise, sometimes on a dime, as and when needed. Presently, I’m excited to welcome Jason Long as President of the KBA, and to continue to support this organization in other ways in 2022 and beyond. In that regard, I again say to you “Aloha”. To take the import of the key term in this article’s title a bit further, aloha is not a word with a simple translation. It’s a unique and complex word that doesn’t mean just one thing. Wikipedia tells us that the word aloha is found in all Polynesian languages, and always with the same basic meaning. A Dictionary of the Hawaiian Language describes aloha as a word expressing a range of different feelings and mindsets in addition to the modern common understanding of hello and goodbye. Various other sources describe aloha as a positive attitude or an act of kindness or compassion. But, in the end, aloha is more than its literal and colloquial meanings; it is a spirit of approaching life. So much so, that in Hawaii, the aloha spirit is etched in the statute books. HRS § 5-7.5 sets forth the statutory interpretation of aloha, which includes kindness, unity, agreeableness, humility, and patience and is defined as “the essence of relationships in which each person is important to every other person for collective existence.” Hawaiians see this aloha spirit as so important that the rule of law in Hawaii directs all judicial and December 2021

governmental officers to contemplate and consider the aloha spirit in carrying their duties and responsibilities. Sound familiar at all? I think in many ways our members, who have that well-known and somewhat unique reputation for collegiality and strive to follow the KBA Guidelines for Professional Courtesy and Conduct, exhibit the aloha spirit. I’ve said it before, but it bears repeating: this organization is full of good lawyers, good people who routinely exhibit care for one another, care for their clients and community, and care for the rule of law. It is a group that I am proud to be a part of. Several times over the past year I have asked myself, in the immortal words of Admiral James Stockdale, Ross Perot’s 1992 running mate, “Who am I?” and “Why am I here?” I never had serving as President of the KBA on my list of goals. For that matter, I never planned to live and practice law in Knoxville, Tennessee. But life is a journey and mine led me to Knoxville and, fortunately, into relationships with many different lawyers who encouraged my involvement in our bar. All that culminated in me saying “yes” to an invitation to serve as KBA Secretary several years back. The rest, as they say, is history. I feel really lucky that I answered “Yes” when I was asked. Following past KBA leaders including Wayne Kramer, Amanda Busby, Keith Burroughs, Wynne Caffey-Knight, and Hanson Tipton smoothed the path before me. From Zoom meetings to masked gatherings, and from our first pickleball and tennis event to the recent KBA fall hike at Frozen Head State Park, I’ve enjoyed the opportunity over this past year to work with so many of you and to get to know lawyers that I do not encounter in my daily practice, and the chance to consider broader issues of importance to our legal system, and to carry on the work of building our bar. With Jason Long as your next President, Marsha Watson and her team at the ready, and the excellent Board of Governors that will serve you during the coming year, I know the KBA will continue its tradition of being the best local bar organization for the best bar around. It is my hope, and my full expectation, that what we have here in the KBA will continue to be the envy of bar associations around this state and across the country. Thank you to each of you for your membership in and contributions to the Knoxville Bar Association and our profession. I’m proud of the sustained efforts within our bar to make Knoxville a legal community where the aloha spirit (or our East Tennessee version of it) is alive and kicking. With gratitude, honor, and humility, I thank you for allowing me the honor of serving as KBA President this year. Aloha!

DICTA

W H AT I L E A R N E D A B O U T I N C LU S I O N A N D W H Y I T M AT T E R S By: Kathryn Ellis

Knoxville Family Justice Center

EVERY PERSON MATTERS I have a confession . . . I struggle to talk about diversity. I find myself running conversations in my head before saying anything out loud because I don’t want to upset anyone. I don’t want to make anyone feel uncomfortable. I know I’m not alone in this feeling, but that doesn’t make it any easier. I stop myself before mentioning one of my Black/ Hispanic/gay friends. I think about whether what I’m about to say might be offensive to someone who is religious, or to someone who is not religious at all. Despite struggling to talk about diversity, I do what I can to never turn away from the conversation. In my first semester of graduate school, Dr. Susan Becker taught History 510: Introduction to Graduate Studies, which was a required course. The current course description says, “this class will teach you to be more self-conscious about the analytical choices you make while doing historical research, and also give you a chance to reflect on your decision to pursue a career in history.” The first assignment Dr. Becker gave us was to write about our frame of reference (FOR) and individual sphere of influence (SOI) and to explain how those each influenced the way we looked at history. The assignment forced us to look at where we came from, who and what influenced us, and generally why we looked at history the way we did. To identify our personal SOI, we had to consider where we came from – our family, our community, our education, our religion, etc. To identify our FOR, we had to consider the criteria we used to judge our experiences, our actions (and those of others), and our ideas. As a 21-year-old who had never really analyzed why I thought the

way I did and why I viewed others the way I did, the assignment was difficult, but also eye-opening. What I learned when I looked closely at what and who influenced me and shaped me, I realized that every person I interacted with mattered. I thought about Ms. Beech, my sixth-grade homeroom teacher, who at 6’2” didn’t hesitate to wear 3” wedge sandals, rocked her braids, and fully embraced her love of Jazzercise. She also introduced our class to the wonders of Earth, Wind, and Fire. I thought about Mr. Esformes ( Jack) who I had for three years of government/ history in junior high and high school. Jack taught AP Government, but rather than limiting his class to “advanced” students he opened it up to any student who wanted the challenge of the advanced class and, thus, exposed the students in his class to different ways of thinking and different experiences. My personal sphere of influence included educators, politicians, civil servants, and caretakers. It included adults who were black, white, Hispanic, Jewish, Protestant, Catholic, Democrat, and Republican. My frame of reference revolved around my constant need to create balance and to make sure everyone was treated fairly. Thanks to Dr. Becker, I learned to understand how my own sphere of influence and frame of reference influenced my opinion of others and of events. Learning about myself enabled me to think about how others might hear my words and analyze my actions based on their own spheres of influence and frames of reference. The conversation will never be easy, but it will always be worth having.

DICTA

December 2021

PRACTICE TIPS By: Michael W. Moyers

Bernstein, Stair & McAdams

PRESENTING YOUR CASE TO THE COURT: TIPS FROM THE BENCH I like to tell the story from time to time about my first appearance in court. For many, this might be in Sessions or Juvenile, or perhaps as second chair to a senior attorney in a trial court setting. For me, it was in front of the Court of Appeals. Thirty minutes later, I left the courtroom humiliated, dejected, and wondering if I had made the proper career decision. Years later I got to see things from the other side of the bench. Here are a few pointers I’ve picked up from 30+ years of practice on both sides of the bench. Be Natural I have had a number of young attorneys appear before me, and I’ve judged more than a few moot court competitions, and one thing I find very distracting is overly-rehearsed or scripted arguments. When an attorney appears to have their argument memorized, it comes off as wooden and unpersuasive. A natural, conversational style is much more engaging and persuasive than an overly stilted delivery. But how to achieve this? In my ill-fated debut appearance before the Court of Appeals refenced above, I appeared with my entire argument written out in outline form, with each point having written out by it exactly what I was going to say. Because of this I was reliant more on that piece of paper, and the argument laid out precisely on it, than I was on my own understanding of the case. As a result, my affect was that of someone reading a script, rather than making an argument. Not surprisingly, it was not an effective approach. Know Your Argument This is related to the point above, and seems obvious, but know your argument. Don’t memorize, know. Practice your argument with an actual human being who asks questions, tries to poke holes in it, and otherwise tries to take you off your game. Again referencing that first disastrous court appearance of mine, my argument was laid out in points 1-10, and I was thoroughly prepared to argue my case in just that order. But because I did not KNOW my argument to the extent that I should have, I was totally flustered when one of the Justices skipped down to ask a question about point #7 and I experienced sudden and unrecoverable brain lock, stuttered, stammered and generally gave the appearance that I didn’t belong there. Don’t fall into this trap. Knowing your argument, not just the points you wish to make, will help you be more able to think on your feet and effectively answer a judge’s questions. Pay Attention to What the Judge is Saying I ran what some referred to as a “hot court.” I made it a point to read the briefs and arguments filed by attorneys and tried my very best to be prepared to ask questions during argument. When I did this, I usually had one of two motives for doing so: (a) because I was genuinely interested in the answers, or (2) because I was utilizing the Socratic method we all know and love to attempt to gently explain to the attorney I was questioning why he was about to lose. Listen to the judge’s questions carefully. If they seem open-ended, then he/she is December 2021

probably attempting to elicit information needed to decide the case. If the questions seem more leading, then it may be the case that the judge has already determined the outcome. However, all is not lost. I did have attorneys change my mind even after I thought I had decided from the pleadings what I was going to do with a particular motion, so don’t give up even if it looks like the judge has made up his/her mind. Pay Attention to What the Judge ISN’T Saying Sometimes a judge will try to signal the attorneys what he/she is thinking without wishing to say so out loud. For me, some of the most difficult situations arose when one side was represented and the other was pro se. In one particular case, a pro se litigant testified on her own behalf literally for hours before finally finishing her statement. I tried in every manner I could to signal the opposing attorney that cross examination was not going to be needed in that case, but the poor (and very young) attorney didn’t get the hint. That sort of thing can make your judge very cross, so watch the judge’s body language. He or she might be trying to tell you something. Don’t Talk Over the Judge I was taught in trial practice classes never to interrupt a judge when he or she is talking, but my experience as a judge demonstrated to me that not everyone got the same lesson. As a judge I found it extremely irritating when an attorney interrupted me or cut me off. An angry judge does not help your client. When the judge starts talking, you should stop. Address all Comments to the Court Another simple rule of courtroom etiquette that can sometimes be forgotten in the heat of combat: do not direct argumentative comments to opposing counsel. All comments on the case should be directed to the Court. Arguments directed at opposing counsel are generally unpersuasive, unprofessional and distracting. Don’t get baited into such behavior. “With all Due Respect…” I couldn’t end this article without reference to one of my personal pet peeves: beginning a comment to the Court prefaced by the words “with all due respect.” There are two problems with this. First, as a Judge, one quickly becomes conditioned to the fact that what follows will be either mildly or grossly insulting. This is never a good or persuasive strategy. Second, when one takes the time to think about the import of this harmless-sounding phrase, the actual meaning is this: “I am making the following comment with all the respect to which you are due.” Note that this leaves open the possibility that the amount of respect the speaker believes the listener is due is zero. Again, not the best communication strategy ever. If you must preface a remark to the Court with a pre-apology, “respectfully” is a much better choice of words.

DICTA

AT TO R N E Y P R O F I L E By: Hanson Tipton

Watson, Roach, Batson & Lauderback, P.L.C.

A ‘LONG’ TIME COMING What is there to say about incoming KBA President Jason Long that a DICTA reader does not already know? Even leaving aside his lengthy list of professional accomplishments and many offices held to serve the profession, longtime DICTA readers may know more about Jason than any other lawyer, if only because of his monthly comprehensive “Long Winded” column. Where else can you find running diaries and examinations of classic movies,1 imagined litigation against UT’s athletic rivals,2 and even a list of the things Jason finds in his desk drawers?3 I have thought for years that “Long Winded” should be featured more prominently in DICTA, and am happy to report that for the next year, Jason’s column will be found on page 5. Jason really needs no introduction in the Knoxville legal community, because when he is sworn in at the Annual Meeting on December 10, he will have held every bar association office a Knoxville attorney can hold. That’s only a slight exaggeration. While local attorneys have benefited from his dedicated service to the KBA (highlights include serving as president of Barristers, his “Long Winded” column, work on Habitat houses, and his recent executive offices served,) Jason may be best known as a former president of the Tennessee Bar Association for the 2016 – 2017 bar year. Jason has even held Board and Committee positions with the American Bar Association and has served on the Executive Committee of the National Conference of Bar Presidents. As a fellow attorney once noted, “It seems like Jason must have lost an election for student council once and has been trying to compensate ever since.” Somehow while serving all of those various bar associations and organizations, and also teaching legal writing at the University of Tennessee College of Law for fifteen years, Jason has managed to find time to practice law. After graduating from law school at UT in 1996, Jason went into private practice with Sarah Sheppeard and Charles Swanson, who both served as important early mentors for Jason in both the practice of law and bar service. Jason has since moved on to London Amburn where he is now a shareholder and primarily defends clients in matters related to medical malpractice and professional board representation in Tennessee and Kentucky. He also counsels on cases involving business litigation, civil trial defense, nursing home and long-term care defense, and legal malpractice. Jason’s paying job and his selfless bar service would be enough to keep anyone busy 24/7 without time for sleep, but he somehow also manages to be an active church member, a not-as-avid-as-he-wants golfer, a cook who refuses to follow recipes, a Lyndon Johnson aficionado, and a shameless cinephile (which we all know from how often movies find their way into “Long Winded.”) Jason is also well-known for his love of Tennessee Volunteers athletics, and was thrilled when his beloved Boston Celtics drafted Vol great Grant Williams a couple of years ago. Above everything else, however, Jason is a loving and devoted father and husband. Jason and Carol Anne’s origin story is the stuff of KBA legend – I’ve heard at various times that they met working on a KBA Habitat house and that they met at a Barristers meeting. So I went to

Carol Anne for the real story: she applied to work at Sheppeard and Swanson when Jason was working there and he was tasked with sending her a rejection letter, in which he somehow managed to misspell ALL THREE of her names. An auspicious start for romance, no? These star-crossed kids kept bumping into each other everywhere from the law school to KBA events (including getting to know each other better at the legendary Habitat build and Carol Anne’s first Barristers

meeting,) and with the help of notorious matchmaker Chris Cain they began dating and eventually married in 2003. Yet another Habitat build almost intervened two weeks before the wedding when Jason partially fell through a roof, but thankfully his injuries were minor and the rest, as they say, is KBA history.4 Jason and Carol Anne have two beautiful children, James Robert (16) and Janie (12.) Jason says that of all the things he has done in his life, “raising these two kids to be the people that they are is my proudest achievement, recognizing that at least 90% of the credit belongs to Carol Anne.” As I was writing this profile, my wife Elizabeth told me that Jason once said to her that he does not like to stand next to anyone taller than he is. At Jason’s stature this is typically not a problem for him, but according to Carol Anne, James Robert only has two more inches to go before Jason isn’t even the tallest person in his own house. While our professional paths have occasionally crossed, I have mainly gotten to know Jason through our shared bar service with both the KBA and TBA, and one thing that has always impressed me about Jason is his commitment to doing what is right, regardless of the popularity of any given decision. In my own year as KBA President, which we all remember was a tumultuous one inside and outside of the bar, I often relied on Jason’s wise counsel and felt lucky to have him as a resource. It was also comforting to know that no matter how big a mess I made of things, Cheryl and then Jason would be able to fix everything. In all seriousness, I do feel like one of my biggest contributions to the KBA was the day I took Jason out to lunch and essentially begged him to consider accepting

DICTA

December 2021

responsible for us getting together.” Jason says that he is honored to serve as KBA President, “serving the people I know well and the people I professionally grew up around.” Of his goals for the 2022 bar year, Jason says, “If there is one thing I want to accomplish this year, it is a realization within our bar of how much we do and how much we CAN do.” He notes that the turmoil in the world and our community over the past couple of years has forced us as a bar to adapt and improve and explore new ways of thinking. “We came out of it in a really strong position, and we should realize how special our bar is and how special it can be.”

the nomination for Secretary. At lunch that day, Jason wisely told me he would need to talk to Carol Anne first (they were both still recovering from his year as president of the TBA,) and so I waited on pins and needles until he called and told me that he was ready to serve in the leadership of the

KBA. Carol Anne is excited for him, and calls his presidency “the culmination of all of his hard work with the KBA.” She mentioned that while Jason has served in leadership of other bar organizations, “this is where his heart is, in Knoxville.” And she appreciates the symmetry for their family of Jason serving as KBA President, as she says “The KBA was

December 2021

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DICTA

See, e.g., “Clash of the Titans” (running diary of watching Anatomy of a Murder), April 2012; “I Love Monkeys” (running diary of watching Inherit the Wind), August 2015; “Just When You Thought It Was Safe to Go Back Into the Courtroom” (tale of the tape piece on Jaws vs. To Kill a Mockingbird for greatest lawyer movie of all time), August 2014; “Movie Law 101” (examination of The Verdict, A Few Good Men, and To Kill a Mockingbird), March 2018; “Some Post-Holiday Thoughts:” (revisiting It’s a Wonderful Life and Rudolph the Red-Nosed Reindeer); “Lock Him Up (George Bailey Christmas Edition)”( yet another examination of It’s a Wonderful Life), December 2019; “Tom Hagen – Lawyer Profile” (imagined timesheets of Tom Hagen, consigliere from The Godfather), January 2020; and “Counselor Extraordinaire?” (yet another examination of Tom Hagen’s role in the Godfather movies), May 2021. See, e.g., “Law and Big Orange Hoops 101” (imagined pending or potential litigation facing members of UT basketball program in 2008/2009), December 2008 and “Fourth and Long” (imagined lawsuits related to UT football season), November 2011. “Spring Cleaning” (literally a running diary of cleaning out his desk), June 2008. Naturally, Jason has used these stories as fodder for “Long Winded” columns, and fuller versions can be found in “A KBA Feel Good Story” in the February 2019 issue of DICTA.

WELL READ By: Hon. Charles A. Cerny

Knox County General Sessions Court Division I

CHASING THE SCREAM, THE FIRST AND LAST DAYS OF THE WAR ON DRUGS Since I am the acting Recovery Court Judge in Knox County, it should come as no surprise that another judge recommended that I read a book that re-examines the “War on Drugs.” And it’s not a surprise that I would read it and recommend it to my friends in the Knoxville Bar Association. In fact, it won’t shock you if I tell you that every American should read Chasing the Scream, The First and Last Days of the War on Drugs, by Johann Hari. Remember the movie “Sleepless in Seattle”? We all knew from the beginning that Tom Hanks and Meg Ryan’s characters were “MFEO” (“Made For Each Other”). It becomes a matter of execution. Are we going to become endeared to the characters and become engrossed in their journey to a predictable destination, because the writer is skilled at taking us along on the journey? Johann Hari has skillfully executed a critical examination of the “War on Drugs” by introducing us to multiple combatants in this war. The normal approach would be to study and compile statistics and use data to support a logical argument to reach a conclusion about policy changes. Hari has the data and statistics, certainly. But more importantly, Hari uses his own interest in helping the addicted family members in his own life to motivate his research. And his research includes studying the diaries and journals of historical figures, or actually interviewing and getting to know several participants in the “war.” Because he is skilled and compassionate, we become endeared to them and engrossed in the journey they are on, and we care about the conclusions they reach. Let’s start this way: watch Hari’s TED Talk. Yes, he does give away one of the major conclusions in the book. But it is very helpful to have a visual image of the author and an idea of what his voice sounds like. And the TED Talk is excellent. After a brief introduction to the author, let’s get some historical context: did the “War on Drugs” start with Nancy Reagan and “Just Say No?” Did it begin during the Nixon administration? Nope. Prohibition ended in 1933. Despite what we learned from Prohibition about creating a black market to fund organized crime, the “War on Drugs” began contemporaneously with the end of Prohibition. Now, let’s meet the characters on the journey. Once again, a comparison to movies or other literary forms is helpful: from the beginning, we meet three characters and Hari uses “parallel editing” to develop them and show us how their lives eventually crash into each other. Harry Anslinger is the real historical figure who almost single handedly created the hysteria and fear that drugs would bring an end to civilization as we know it. He is the Director of the Federal Bureau of Narcotics and unfairly targets jazz singer Billie Holiday. Holiday’s love affair with jazz music begins when she is six years old, and “[e]ven after she was raped, and after she was pimped, and after she started to inject heroin to take away the pain, the music would still be there waiting for her.” Arnold Rothstein had the benefit of growing up in a wealthy family, but his successful father interrupted his first attempted murder when he was three years old. (He almost stabbed his sleeping older brother.)

Rothstein would become the most notorious and feared gangster on the Eastern seaboard of the United States. “For his system to work, Rothstein had to invent the modern drug gang… Arnold’s gangs were as disciplined as military units…” Harry, Billie and Arnold’s lives will intersect in history and on Hari’s journey to understand the “War on Drugs.” We move on to another milestone in our journey, and we meet another character: “I closed the files on Harry and Arnold and Billie and resolved to find myself a drug dealer…It was time for me to watch the drug war’s history unfold in real time.” Enter Chino Hardin, a drug dealer and gang banger from East Flatbush in Brooklyn. Chino will absolutely surprise you. There is nothing remotely predictable about Chino. Including the fact that he’s transgender and leaves drug dealing behind and becomes an activist. It’s only fair to get law enforcement’s perspective. So, let’s meet Leigh Maddox, an up and coming state trooper from Baltimore. “Her [subordinates] had clear orders: Go for numbers. Get the maximum possible arrests…” She was “Anslinger’s dream girl made flesh.” She completes her “retraining as a lawyer, quits her job as a cop, and starts providing services to the very people she had been busting and breaking before.” Heard of Joe Arpaio? He was an agent for Harry Anslinger in 1957, before becoming Sheriff of Maricopa County, Arizona. (Small world, eh?) Let’s interview some of his inmates at his outdoor jail and see if shaming and draconian punishments are working. Want to know what it’s like to be in a drug cartel? We’ll meet Rosalio Reta, and he will (literally) show us his scars. Have you thought about whether all animal species use drugs at various times, perhaps giving us better understanding of the whole addiction phenomenon? Let’s interview a scientist who has studied drug use in animals. Has another country tried a different approach with success? Let’s travel to Portugal and interview Joao Figueira, the Chief of the Lisbon Drugs Squad. Johann Hari connects us to combatants in the “War on Drugs” we could never meet without his research. And the recordings of the interviews are available at www. chasingthescream.com. I’m going to have trouble making my deadline for this review, but it’s not my natural tendency to procrastinate this time. I keep pushing back from the word processor and re-reading the book because I can’t put it down. Of course some aspects are predictable, and Johann Hari reaches conclusions you expect (and some you don’t). But it’s about execution. Chasing the Scream is well executed, and you also will not be able to put it down.

DICTA

December 2021

DICTA

URBAN LEGENDS By: Sarah M. Booher Garza Law Firm, PLLC

THE VIOLENT LIFE OF JOSEPH ALEXANDER MABRY II Joseph Alexander Mabry II was a colorful man. For him, there stood little distinction between the professional and the personal, and his was a life of violence. However, the Knoxville we know and love today is largely influenced by Mabry at his best and brightest. Mabry was born to his namesake, a state legislator and farmer, in what is now Knoxville’s Concord neighborhood in 1826. Sadly commencing a family legacy, his father was killed in a duel in Tuscaloosa, Alabama, when Joseph was only 11 years old. His older brother George, who later build the Mabry-Hazen House, raised him from that point. THE CIVIL WAR ERA As an adult, Mabry used his substantial inheritance to invest in land speculation and the Knoxville and Kentucky Railroad. He eventually became president of the railroad and was expanding it toward Clinton when construction was halted for the war efforts. He also served as Trustee of East Tennessee University (known to us as UT) and raised prized horses, raced and enjoyed all across the south. He was one of Knoxville’s largest slaveholders, but his involvement and approach to the war was very complicated. Ultimately, he was probably a businessman trying to navigate polarizing politics, as he tended to straddle the issue’s fence. After Lincoln’s election, he rallied for “immediate secession”. On the other hand, he staunchly supported the scandalous pro-Union editor of the Knoxville Whig, William “Parson” Brownlow, saving him from hanging and helping secure Brownlow’s release. Financially, his stance was no less two-sided. He donated significantly to the Confederate side but earned that amount ten-fold before offering his assistance to occupying forces and taking the U.S. Oath of Allegiance in January 1864. After the war, he joined forces with another newly-minted Unionist, Charles McClung McGhee. The two extended the railroad all the way to Caryville and Anderson County’s coalfields. In 1869, his business endeavors substantially declined. Attorney John Baxter accused him of opportunism, profiteering, and plundering the railroad. They exchanged numerous libel and counter-libel suits against one another, which appeared to be settled when Mabry shot Baxter in the wrist in front of the Lamar House Hotel the following year. Charges were never filed.

O’Connor shot him with a double-barrel shotgun and again as he fell to the ground. Mabry was killed instantly. Joseph III, a block away at the justice’s office on Clinch Street, heard the shots and ran toward the bank. Seeing his father dead on the ground, he reached for his pistol. O’Connor reached into the bank for another shotgun, and the two men took simultaneous aim at one another. A shot from Joseph III. A shot from O’Connor. Both of them fatal. In less 2 minutes, three of Tennessee’s most prominent capitalists lay dead in the street and another seven bystanders wounded by buckshot from O’Connor’s weapon. O’Connor’s accomplice escaped. ENDURING LEGACY FOR OUR COMMUNITY In 1853, Mabry and his brother-in-law, attorney William G. Swann, donated the land that is now enjoyed as Market Square. At the time, it was only empty pastureland north of the city, but the men wanted a place for local farmers to sell their produce, as they predicted commerce was going to move away from the river and toward the railroad. They gifted the land under the stipulation that the ownership would revert back to the Mabry family if it were ever used for anything other than a market. Thankfully, his granddaughter Evelyn used this clause to save the square from becoming a parking garage in the 1960s.

SOLVING PROBLEMS WITH SHOOTOUTS In 1881, Mabry sold his Cold Springs Farm to Thomas O’Connor, president of the Mechanics’ National Bank and alleged richest man in Tennessee. O’Connor promised to return the property to Mabry’s son, Will, at some point in the future. So, when Will was shot dead in a brawl at Snodderly’s Bar on Christmas Eve, Mabry put the blame not only on the constable who shot him, Don Lusby, but also on O’Connor. Mabry and his son, Joseph III, exacted their revenge on the Lusbys eight months later in a Knox County Courthouse brawl, killing Lusby and his father. They were acquitted soon after. Mabry’s hatred of O’Connor lingered. When he ran into his nemesis at a horserace at the fairgrounds in South Knoxville, he challenged him to a duel. The offer was refused. Mabry promised to “kill him on sight” the next time they met. On October 19, 1882, O’Connor stepped outside his bank and saw Mabry walking down Gay Street. As he approached Church Street,

DICTA

December 2021

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Lyndsey L. Lee Lewis Thomason, P.C.

THE GIFT OF THE BUSINESS EXPENSES DEDUCTION FOR HOLIDAY GIFTS Holiday gift-giving can be a great way for attorneys and law firms to show appreciation and maintain goodwill. To add to the holiday cheer, holiday gift giving has long been accepted as an ordinary and necessary business practice with a corresponding business expense deduction.1 But the federal tax laws do not take a holiday break, and while the Internal Revenue Code gives some business owners a gift in the form of a business expense deduction for gifts given by the business, this “gift” in the Code is limited. Is the cost of this gift a deductible business expense? The taxpayer (the business giving the gift) generally may deduct the cost of the gift as an ordinary and necessary business expense, so long as the gift is connected with the taxpayer’s opportunity to generate business income.2 Importantly, however, the deduction is limited to a total of $25.00 per individual gift-recipient per taxable year.3 Branded swag does not count toward this $25.00 limit though, so long as: (i) the individual item of swag costs the taxpayer no more than $4.00, (ii) the name of the taxpayer is clearly and permanently imprinted on the item, and (iii) the item is one of a number of identical items generally distributed by the taxpayer.4 Also excluded from the $25.00 limit are incidental costs such as for customary engraving on jewelry, or for packaging, insurance, and mailing or other delivery.5 But, the related cost is only “incidental” if it does not add substantial value to the gift. Say, for example, a business purchases a $25.00 gift basket, adds a $30.00 gift certificate to it, and spends $20.00 on delivering it to an individual recipient. In that case, the business may be entitled to a deduction of up to $25.00 for the cost of the gift and up to $20.00 for the incidental delivery cost, but would not be entitled to a deduction for the full $55.00 that the gift basket and the gift certificate cost the business. Keep in mind though that the IRS has strict rules about the documentation taxpayers must maintain to substantiate their deductions. To deduct a gift as a business expense, the taxpayer must maintain adequate records or sufficient evidence of: (1) the cost of the gift, (2) the date and description of the gift, (3) the business purpose of the gift, and (4) the identity and business relationship of the specific person receiving the gift.6 This final requirement – that the taxpayer document the individual recipient of the gift – is crucially important, but unfortunately often overlooked by taxpayers.7 What if I give a gift to another business instead of an individual?

owner of the recipient business.8 Conversely, if the gift is intended for the eventual personal use or benefit an individual employee, stockholder, or other owner of the recipient business, it generally will be considered a gift made indirectly to the individual and, thus, still subject to the $25.00 limit. Unsurprisingly, however, the nuance between a gift made to a business for its benefit and a gift made to the business for the benefit of one of its employees, stockholders, or other owners can be a difficult one to navigate. For instance, if a taxpayer gifts show tickets to a closely held corporation9 for eventual use by any one of the stockholders of the corporation, the tickets are considered indirect gifts to the individual who eventually uses the tickets.10 Conversely, however, if the same taxpayer gifts the same tickets to a corporation for the eventual use by any one of a large number of employees or customers of the recipient corporation, the gifts generally will be treated as one to the corporation instead of the individuals and, thus, not subject to the $25.00 limit. A closer reading of the regulation suggests that the determining test is whether under the circumstances of the case, it is reasonably practicable for the taxpayer to ascertain the ultimate recipient of the gift. Finally, just as the Code allows for forgiveness from the $25.00 limit when you give to a corporation, it expects additional substantiation in return. In Leschke v. Commissioner, the tax court refused to allow a deduction for gift certificates given to 28 corporate customers when the taxpayer documented only the name of the corporate recipient and not whether the corporations were small, closely held corporations with a few employees.11 While it is easy to get wrapped up in the spirit of the holidays and the joys of gift-giving during this time of the year, keeping these general principles in mind can help extend the joy all the way through tax season. And, as always, if you have questions about a potential deduction or your substantiation requirements, do yourself and your CPA a favor and talk it over with them first!

1 2

5 6 7 3 4

Because the Code focuses on gifts to individuals, the $25.00 limit does not apply to gifts to corporations or other business entities, so long as the gift is intended for the benefit of the recipient business generally and not for the benefit of any individual employee, stockholder, or other

10 11

Leschke v. Comm’r, T.C. Memo 2001-18 (collecting cases). Bruns v. Comm’r, T.C. Memo 2009-168 (citing Brown v. Comm’r, T.C. Memo 1984120 and ). 26 U.S.C. § 274(b)(1). 26 U.S.C. § 274(b)(1)(A). 26 C.F.R. § 1.274-3(c). 26 U.S.C. § 274(d). See Bruns, T.C. Memo 2009-168 (disallowing a deduction when the taxpayer kept receipts for purchased gifts, but failed to note to whom the gift was given). 26 C.F.R. § 1.274-3(e)(2). Generally, one in which at any time during the last half of the taxable year more than 50% in value of the corporation’s outstanding stock is owned, directly or indirectly, by 5 or fewer individuals. 26 U.S.C. § 856(h)(1)(A). 26 C.F.R. § 1.274-3(e)(2). See Leschke, T.C. Memo 2001-18.

About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Caitlyn Elam at 546-4646. December 2021

DICTA

BUILDING FOR THE FUTURE: ADVICE ON SUCCESSION PLANNING By: Eddy R. Smith Kennerly, Montgomery & Finley, P.C.

SUCCESSION DONE WELL This is the fourth and last installment of articles on practice succession. Hopefully, the prior articles motivated you to give time and attention to succession planning to protect your clients, staff and the local bar, and gave you confidence that available resources combined with lawyer know-how will lead to a successful process. This article focuses on lawyers who took the steps necessary to provide for an effective postpractice experience. In other words, lawyers who’ve done succession well. For lawyers practicing with other attorneys, the transition can be relatively easy. Diane Messer was one of five attorneys who kept up with the others’ cases, and she says it was easy to phase out. “The main thing is to pick a realistic end date and stop taking clients. I had already gone to half-time, so it was even easier for me. I had others to take over my cases, which most people don’t have.” Kelly Frere relays the story of her mother, Arline Guyton, who retired well in 1994. Two years before retirement, Arline began introducing clients to her firm’s other lawyers, Kelly and Matt Frere. Arline involved Matt and Kelly in decisions and considered the long-term effects of decisions on clients and the firm. Arline did not scale back, instead announcing one day that she was leaving and would not be back. Arline could do that because she had prepared clients and colleagues. Kelly can’t remember a single client who left when Arline retired. Long-time bar members and those who drive around Knoxville are familiar with G. Turner Howard III (“G3”). While Turner has no plans to retire anytime soon, he recognizes the importance of both a healthy and robust life outside law practice and building a practice that can survive him. In his young 70s, Turner is quite active in ministry and continues his participation in high-level competitive sports, and he and his wife recently adopted a young daughter. Says Turner, “law practice gives me purpose,” but is not the sum of who he is.

relationships, passions, and purposes independent of law practice; consider scaling back (of counsel, reduce client load and hours, etc.) as you near retirement; and save continuously to provide yourself financial freedom in retirement. Quite active and busy, you might see Greg having lunch with others, at nonprofit activities, or on the tennis courts. KBA member Carol Nickle moved her employment discrimination practice into her home in 2008 and inactivated her law license in 2013, continuing a legal consulting practice. Carol encourages lawyers to think about what they really want to do outside law practice. In her case, personal interests led to being outside, Spanish classes and piano lessons. She also discovered that her passion for the law and an unmet legal need led to her to a new practice area. In 2016 Carol reinstated her law license to do pro bono immigration work, including offering powers of attorney clinics for undocumented workers. Carol expects to retire her license again soon, stating that it is great to have time to do other things she loves, like hiking and having lunch with friends. The one thing she would do differently in practice? Reading DICTA more made her wish she has been more involved with the KBA!1 Whether I’m 30 or 70, I should begin looking ahead to the time when I’ll no longer practice law. As I wrote in May, planned or unplanned, voluntarily or involuntarily, one day your practice will end because, as the saying goes, “Time is undefeated.” However, time also can be your ally, if you begin planning now. With sufficient attention and effort, you can be as good beyond law practice as you are in your practice. Just ask our colleagues who have done succession well.

An unprompted, unsolicited and uncompensated comment.

When Turner’s CPA encouraged him to develop a succession plan, Turner asked staff what they thought the firm needed in an additional attorney. He hired the right attorney (and recently another) and undertook a deliberate process of mentoring the attorney and staff, instilling the firm culture of ethics, integrity and communication. There is “no hierarchy” in the law firm, and Turner believes the lawyers and staff could continue the practice without him. He has added the other attorney’s picture to marketing materials to communicate to the public a firm rather than one individual. Greg O’Connor is very happy in retirement. He attributes that happiness to three things he recommends for practicing lawyers: develop

DICTA

December 2021

L E G A L U P DAT E By: Colin Colverson and Sydney Nenni Tennessee Valley Authority

LORD WILLING AND THE CREEK DON’T RISE: A LOOK AT SOUTHEASTERN WATER DISPUTES “When the well is dry, we know the worth of water.” – Benjamin Franklin When we look at the verdant landscape and flowing rivers of Tennessee, it is sometimes hard to appreciate the value of water. In the western United States, however, that appreciation is growing by the day—81% of the western United States is currently experiencing extreme drought, with America’s two largest reservoirs reaching 30-year lows in amount of water stored.1 Water has traditionally been more plentiful in the southeastern United States, which may have influenced the adoption of riparian rights2 as the predominant common law theory of water law east of the Mississippi River.3 Still, riparian states have also initiated legal disputes over access and use of interstate waters for many decades,4 even when their water has historically been so plentiful. These legal disputes come in many forms—a state can seek to resolve the dispute through legislative apportionment, judicial apportionment, or by entering an interstate compact.5 This article focuses on apportionment, by highlighting one legislative proposal and two recent Supreme Court cases which bear particular importance to Tennesseans and our state’s water usage. Legislative Proposal Near the small town of New Hope, Tennessee, a centuries long border disagreement between Tennessee and Georgia has developed into a case study in the value of water in the eastern United States. Congress established Tennessee as a state in 1796, and declared the north 35th latitude parallel the new state’s southern border with Georgia.6 The state of Georgia has attempted to alter that border several times,7 most recently in 2020 with the Georgia Senate passing a resolution authorizing the Georgia executive branch to negotiate with Tennessee and North Carolina about a revised northern border.8 Why has Georgia had such a long standing and persistent interest in a sliver of land to their north? Because of the Tennessee River, where the Nickajack Reservoir would be squarely within Georgia’s border if the line were redrawn as contemplated, meaning Georgia would have riparian rights to those waters in addition to Tennessee.9 While Georgia has not petitioned the federal courts to alter the border with Tennessee,10 the next significant drought in north Georgia may change that calculus. Judicial Intervention In addition to using legislative action to acquire rights to water, states may pursue judicial intervention for interstate water disputes and petition the Supreme Court to invoke original jurisdiction.11 In doing so, the moving state “must prove a threatened or actual injury ‘of serious magnitude’” caused by the defending state, and that “the benefits of the [apportionment] substantially outweigh the harm that might result” to the non-moving state.12 When faced with an interstate water dispute, the Court applies the judicial doctrine of equitable apportionment, which

takes into consideration the underlying states common law standard13 and apportions water usage among the states.14 The most recent case seeking judicial resolution of an interstate surface water dispute arose in 2013 when Florida petitioned the Supreme Court, asking the Court to invoke original jurisdiction and issue a decree equitably apportioning waters of the Apalachicola–Chattahoochee– Flint River Basin (“ACF Basin”) along the Georgia, Florida, and Alabama borders.15 At the heart of the dispute were claims that Georgia overconsumed waters of the ACF Basin, which in turn reduced interstate water flow into Florida, “damaged numerous species and habitats,” and harmed “the overall economic, environmental, and social health and viability of the region.”16 After being heard by two different courtappointed special masters in 201717 and again in 2019,18 the case finally made its way back to the Supreme Court and was officially disposed of in April of 2021, when Justice Barrett, in writing for a unanimous bench, dismissed Florida’s case for failure to demonstrate that Georgia’s overconsumption of interstate waters was a substantial factor contributing to, or the sole cause of, Florida’s alleged injuries.19 Although the contours of the equitable apportionment doctrine seem well established, a novel lawsuit involving interstate groundwater usage now seeks to muddy the waters. At its most basic level, the case— Mississippi v. Tennessee20—involved allegations that Tennessee, the City of Memphis, and Memphis Light, Gas & Water (MLGW) impermissibly withdrew groundwater from Mississippi’s sovereign territory—portions of the Sparta–Memphis Aquifer (Sparta Sand formation) which lies below Mississippi’s border.21 In essence, Mississippi argued that, because MLGW extracted groundwater from the aquifer and depleted water levels beneath Mississippi lands, Mississippi was entitled to injunctive relief and monetary damages for the unauthorized trespass and taking.22 Rather than pursue a claim for equitable apportionment, however, Mississippi instead expressly denied the application of that principle, on the grounds that the equitable apportionment doctrine only applies to surface waters in natural conditions—not groundwater.23 The Courtappointed Special Master disagreed, noting that although surface waters and groundwater behave differently, “[w]hen states fight over interstate water resources, equitable apportionment is the remedy.”24 Thus, “Mississippi present[ed] no compelling reason” to deviate from equitable apportionment of the resources.25 On this basis, the Special Master recommended “Mississippi’s complaint be dismissed with leave to amend the complaint to include a claim for equitable apportionment.”26 The Justices heard oral argument on October 4, 2021, and must now determine, among other procedural questions, whether Mississippi has sole sovereign authority and control over groundwater that flows within its borders and is entitled to relief for the volume of groundwater taken.27 continued on page 20

December 2021

DICTA

WELLBEING AND RESILIENCE IN THE LEGAL PROFESSION: A MESSAGE OF HOPE FOR 2022 We can all agree that the COVID pandemic has ushered in a period of suffering, stress, and uncertainty that has lasted much longer and cut more deeply than expected. When the pandemic first hit in 2020, we all anticipated that it would be an event with a predictable end. Since then we have agonized together as the goal line of defeating COVID remains undefined. Simply put, we are still in uncharted territory and the only thing for certain is that it will take years for the fallout of COVID to run its course. No one knows what the “new normal” will finally look like. Health questions rage on: Will surgical masks be a permanent feature in society? How will the controversy over mandating vaccines play out? Will vaccines ultimately prove as effective as we hoped? What medicines and treatments will be developed to better fight COVID? If I catch COVID, will the Urgent Care down the street have the best medicine in stock? Will we ever really know where the virus came from so we can try to prevent something like this from happening again? Logistical questions also persist: Will our supply chains recover? Will folks go back to work at levels prior to the pandemic (e.g., will hotels and restaurants be fully staffed again)? Will we be “doomed to Zoom” forever? The questions go on and on, and at the heart of it is a fear of permanent negative effects. I am a lawyer. I can’t help it that, by nature, I am impatient, controlling, and opinionated. The truth is, I want all the answers about all these issues now. But as individuals we can’t control any of it. I have accepted that answers will come in the fullness of time, but not on my schedule and not all to my liking. What I can do is make sure that I am taking care of myself and “doing the next right thing” every day to bring hope, healing, and resilience to the world in whatever small part I can. Much of the happiness in my life has less to do with what hardship is impacting me at any given time and much more to do with how I choose to frame it and react.

Luckily for me, I am an alcoholic in recovery. I now have over 39 years of continuous sobriety. My entire legal career (law school at LSU, practicing law in Baton Rouge, and as LAP director in Louisiana and now Tennessee), has been accomplished in sobriety. I have enjoyed a stunningly rewarding and interesting life in recovery, and I would not change a thing. I am very grateful to be in long term remission from a disease that tried its most powerful best to kill me. Being in good recovery has been a tremendous advantage in weathering the COVID pandemic. I have the benefit of additional tools for dealing with life’s challenges and these tools are very effective in situations like this. The program I work in order to stay sober teaches things like living one day at a time, accepting things honestly as they are, not taking myself too seriously, resisting catastrophizing things, and readily understanding the limits of what I can and can’t control. It all adds up to resilience. The issue is: can we all develop the necessary mindset and skills to, like bamboo, bend but not break when a strong and relentless wind challenges us? As for dealing with COVID and helping others professionally at TLAP, when the pandemic first hit, Lawyer’s Assistance Programs across the nation went on high alert, expecting calls for help. In early 2020, and as the isolation and fear of being quarantined ramped up, we all braced ourselves at TLAP for a tsunami of confidential calls for help from lawyers and judges experiencing serious anxiety, depression, or problematic alcohol or substance use due to the stressors of the pandemic. But to our total surprise, the opposite happened. Most LAPs reported a steep decline in calls for help, with some reporting an unprecedented and eerie “radio silence.” We know now that a significant number of folks simply delayed reaching out for help. By the end of 2021 TLAP began seeing many more cases of individuals calling for confidential help with anxiety and depression from the COVID pandemic. TLAP will surely see many more such confidential calls for help in 2022 and beyond. We have real answers

DICTA

December 2021

COVER STORY By: Buddy Stockwell TLAP Executive Director

and real tools to help address any mental health issue. Of course, the message on best practices self-care during this Pandemic remains consistent. To stay resilient and healthy means putting self-care first. Take media breaks and make sure you do not spend too many uninterrupted hours looking at computer, cellphone, and television screens. Get outside often, even if only in your backyard. It is important to turn off our “lawyer brains” and simply experience and appreciate the present moment. Meditation, mindfulness, yoga, or even taking a 15-minute walk in the morning and afternoon can render significant benefits. And, of course, we all know that exercise and diet matter. Staying connected with family and friends is also paramount. Mental health issues are always worsened by isolation. All these things are ingredients for the ultimate goal: developing and maintaining a positive “attitude of gratitude” that promotes health, hope, and opportunity even in times of adversity. The mission is not simply to survive but instead to thrive in the wake of COVID-19. All that said, it is important to keep things in a very hopeful and positive perspective. Family and friends are important. My father is 96 years old and still sharp. He was born in Knoxville, Tennessee in 1925. As a young child, however, he and my grandmother relocated to South Louisiana to be with family after the untimely, accidental death of my grandfather. When I start to feel depressed and sorry for myself about COVID fallout, I think of genuinely terrifying times our country has successfully weathered in the past. My father, as a teenager, arrived in France not long after D-Day. He was a mortarman in the infantry and was wounded several times, always returning to the fight. He survived the war and went on to attend college on the G.I Bill, and he ultimately earned a Ph.D. in English. He enjoyed a full career as an English Professor. In 2012 he was Knighted by France, receiving the Legion of Honor for his heroism in helping to liberate the French from the Nazis. I don’t have to think very hard about it to put COVID into perspective personally. Compared to what my own folks went through in WWII, I have been very lucky during COVID and feel embarrassed to have ever complained about wearing a surgical mask, or being put out over slow service at a restaurant, etc. In truth, I have learned many lessons on resilience from those who managed it in the most desperate circumstances. It has been a while since I have read Man’s Search for Meaning, the 1946 book by Viktor Frankl that chronicles his experiences as a prisoner in Nazi concentration camps during World War II. Frankl reports that his survival was largely due to his attitude and remaining positive and seeing beauty in the world despite the most terrifying and tenuous conditions imaginable. Of course, many of us have been severely damaged by the COVID pandemic, including the loss of businesses, livelihoods, and loved ones. We have all had different experiences, and some way worse than others. But the point for all of us is that the past demonstrates that together we can manage this tough spot in our history, and as legal professionals we can certainly adapt and overcome as necessary to support the effective December 2021

functioning of the legal system despite COVID. In fact, we have everything to be hopeful for. I say let’s all do our best to get up every day and make 2022 the year of tolerance, patience, resilience, and unrelenting hope. We have overcome far worse than COVID. We will prevail. We just don’t know when and what it will look like yet. There is one thing, however, that I can report with utmost confidence right now: no matter what mental health challenges you or someone you know may experience as we continue to navigate the pandemic, you can trust that TLAP is your absolutely confidential, highly specialized, and comprehensive professional clinical resource. Whether it be up-to-date information on best practices in self-care and well-being, or the need to access discrete and effective professional clinical help for a problem, TLAP is here. TLAP’s services are specifically designed to meet the needs of licensed professionals. It doesn’t cost a penny to talk to TLAP and all calls are absolutely confidential. You do not even have to give your name. Call (615) 741-3238, or visit us on the internet at www.tlap.org.

DICTA

HELLO... MY NAME IS By: Jennifer Franklyn Leitner Williams Dooley Napolitan

HILARY MAGACS We are featuring Hilary Magacs this month in DICTA’s “Hello, My Name Is…” Q-and-A column. Hilary is an Associate Attorney at Taylor & Knight, GP, where she practices in a wide variety of practice areas, including Civil and Constitutional Rights Litigation, Governmental Defense Litigation, Education Law, Employment Law, General Civil Litigation, Insurance Defense Litigation, and Personal Injury. She is a 2018 graduate of the University of Tennessee College of Law. Prior to law school, she attended the State University of New York at Cortland for her undergraduate education, graduating with a major in communications and minor in political science, and attended graduate school at Syracuse University, where she attained a M.S. in Broadcast Journalism. Without further ado, please enjoy getting to know Hilary! What was your occupation before you started your legal career? Prior to becoming an attorney, I worked as a reporter for several TV stations across the south. Being a journalist was an incredibly unique and rewarding experience – I covered everything from fundraisers and festivals to presidential visits and hurricanes. I also covered a lot of crime and court stories, which influenced my decision to go to law school. Where is your hometown? I’m originally from Binghamton, New York. I was lucky to live in an area surrounded by woods with a lot of wildlife around, including bears and plenty of deer. I spent most of my childhood playing outside during the summer and inside bundled up in about five layers during the winter.

Binghamton is COLD and very snowy! If you ever visit, I recommend going in June. All joking aside about the weather, it was a great place to grow up. Have you traveled or lived internationally? I love to travel. My maternal grandparents and my mom emigrated from Germany to the United States, which sparked my desire to learn about other countries. I’ve been to Germany and many other Western European countries and also studied abroad in Australia. Outside of work, what are your hobbies? Running is a big part of my life. I love exploring Knoxville’s greenways with friends or on my own listening to audiobooks. Tell me about your spouse. My husband, Rodney, and I met through a local running club. He is the smartest, funniest, and most kind person I know. We were married during the height of the pandemic and had to switch most of our wedding plans around last minute, but it was absolutely perfect. Do you have any pets? I have two cats named Lizette and Alfonso. They are incredibly cute and very spoiled. What’s your favorite binge-watching show? Dateline. I could watch that show all day, every day!

DICTA

December 2021

SCHOOLED IN ETHICS By: Paula Schaefer

Associate Dean for Academic Affairs & Art Stolnitz Professor of Law University of Tennessee College of Law

PAYING AN ORGANIZATION FOR A CLIENT REFERRAL A recent graduate reached out to ask whether he can enter an agreement to share a fee with an organization that refers a client to him. He remembered from our Professional Responsibility class that under the ABA’s Model Rules of Professional Conduct, an attorney generally cannot share fees with a non-lawyer who referred a client to the lawyer. His memory was good. ABA Model Rule 7.2(b) provides that a lawyer may not compensate a person for recommending the lawyer, but permits two exceptions that are relevant here. First, Model Rule 7.2(b)(2) allows a lawyer to “pay the usual charges of a legal service plan or a notfor-profit or qualified lawyer referral service.” Comment 6 to Model Rule 7.2 explains that qualified lawyer referral services are “consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections” such as malpractice insurance requirements. Second, Model Rule 7.2(b)(4) permits reciprocal referral agreements between a lawyer and a non-lawyer (or another lawyer), so long as the agreement is not excusive, the client is informed of its existence, and the lawyer’s agreement otherwise complies with the professional conduct rules. Relatedly, Model Rule 5.4, which addresses the professional independence of a lawyer, provides that a lawyer “shall not share legal fees with a non-lawyer” except in very limited exceptions. The only exception relevant here is “a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter.” While Professional Responsibility courses typically use the Model Rules of Professional Conduct as their governing authority, students learn that in practice they have to research the rules of their jurisdiction before resolving an ethics question. So, my former student and I discussed the fact that he had spotted the issue but now needs to look at the professional conduct rules in his jurisdiction to learn whether the proposed agreement with the proposed organization complies with the rules. I like this real life ethics dilemma because it highlights the need for lawyers to do their research and not rely on their memory of what they learned in Professional Responsibility. The rules governing paying money to (or sharing a fee with) an entity that provides a referral is an area where there is some variation among the states. Tennessee’s rules are different from the ABA’s Model Rules, and additional changes may be on the way. Effective in September 2021, Tennessee has newly amended attorney advertising professional conduct rules.1 We no longer have a Rule 7.2, so if you opened up your rule book or looked online to see if Tennessee RPC 7.2(b) is the same as the Model Rule, you found that it is not.2 The new Tennessee RPC 7.3 includes a part (f ) that addresses the topic “Paying Others to Recommend a Lawyer.” Portions of the new RPC 7.3(f ) were found in the former 7.2(c)—but there are some significant changes.3 The introductory language provides, “A lawyer shall not compensate, give, or promise anything of value to a person who is not an employee or lawyer in the same law firm for the purpose of recommending or securing the services of the lawyer or the lawyer’s law firm” unless an exception applies. One of the new exceptions allows reciprocal referral agreements as allowed in ABA Model Rule 7.2(b)(4). Another exception provides that a lawyer may “pay the usual charges of a registered intermediary organization as permitted by RPC 7.6.” This

language—allowing payment of registered intermediary organizations— was previously found in Tennessee RPC 7.2(c)(2). Tennessee RPC 5.4, the professional independence of the lawyer rule, contains a provision not found in Model Rule 5.4. The Tennessee version of the rule provides “a lawyer may pay to a registered non-profit intermediary organization a referral fee calculated by reference to a reasonable percentage of the fee paid to the lawyer by the client referred to the lawyer by the intermediary organization.4 The registered intermediary organizations (currently 17 of them) are available on the BPR website.5 The Rule governing their registration is Tennessee Supreme Court Rule 44, while RPC 7.6 addresses an attorney’s obligations related to registered intermediary organizations. But all of that—the list of registered intermediary organizations, Rule 44, and RPC 7.6—may change shortly. Also in its September 2021 Order, the Tennessee Supreme Court declined the TBA’s invitation to amend RPC 7.6. The Court instead issued a second Order, 6 also filed September 1, 2021, that proposes a different amendment to RPC 7.6 (that is based on North Carolina’s RPC 7.4) and deletes Rule 44, such that intermediary organizations would no longer register with the Board of Professional Responsibility and the burden would be on lawyers to ensure their compliance with newly revised RPC 7.6. The proposed Tennessee RPC 7.6 expands the definition of an intermediary organization. The following tracks the new language in the opening sentence of the proposed rule: “An intermediary organization is a lawyer-advertising cooperative, lawyer referral service, lawyer matching service, online marketing platform, prepaid legal insurance provider, or other similar organization that engages in referring consumers of legal services to lawyers or facilitating the creation of lawyer-client relationships between consumers of legal services and lawyers willing to provide assistance for which the organization does not bear ultimate responsibility.” Additionally, the newly proposed parts (b) and (c) of RPC 7.6 put the burden on lawyers to be sure the intermediary organization does not engage in improper solicitation, does not interfere with the lawyer’s professional judgment, is not controlled by the lawyer or any associated lawyers, and otherwise complies with the professional obligations of the lawyer. On the issue of payment from lawyer to the intermediary organization, the proposed rule provides that the lawyer must ensure that: (1) the organization makes available to prospective clients criteria for a lawyer’s inclusion, “including any payment made or arranged by the lawyer(s) participating in the service and any fee charged to the client for use of the service at the outset of the client’s interaction with the intermediary organization; and (2) the intermediary organization does not require the lawyer to pay more than a reasonable sum representing a proportional share of the organization’s administrative and advertising costs.7 The Court invites comments on the proposed amendments to RPC 7.6 and Rule 44 until November 30, 2021.

The TBA Petition that proposed many of the amendments that were ultimately adopted by the Court is available at http://faughnanonethics.com/wp-content/ uploads/2020/10/TBA-Advertising-Rules-Petition.pdf. The Tennessee Supreme Court’s September 1, 2021 Order amending RPCs 7.1, 7.2, 7.3, 7.4, and 7.5 (along

continued on page 23

If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. December 2021

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barrister bullets BARRISTERS HOLIDAY PARTY AND ELECTION To celebrate the holidays and elect our new Executive Committee officers, the Barristers will be hosting an outdoor holiday party and election event on Wednesday, December 8 from 5:00 p.m. – 6:30 p.m. at The Firefly, the patio at the Hilton Knoxville. A short program recognizing this year’s executive committee, committee chairs, past presidents, 2021 Barristers President Amanda Tonkin, and 2022 Barristers President Meagan Collver will begin at 5:45 p.m. The person elected Vice-President in December will automatically become the Barristers President for the 2023 bar year. The social will follow thereafter. Complimentary hot and cold beverages will be provided. Click December 8 in the event calendar at www.knoxbar.org to see the list of candidates and register for the meeting. BARRISTERS ANNUAL COAT DRIVE A SUCCESS The Knoxville Barristers Annual Coat Drive ended on November 5. The Knoxville Barristers partnered with Knox Areas Rescue Ministries with the goal of collecting thousands of coats for those in need in our area. The Knoxville Barristers Hunger and Poverty Relief Committee would like to thank everyone who participated in the annual KARM Coats for the Cold Program. The drive resulted in 10 extra-large bags of coats for donation to the program. FOOD & FUND DRIVE FOR SECOND HARVEST The Barristers Hunger & Poverty Relief Committee would like to thank all of the firms who participated in the Food & Fund Drive Competition for Second Harvest Food Bank. The donations will keep Knoxville fed

L E G A L U P D A T E , continued from page 15 The outcome of this case could bear monumental weight for future interstate water disputes—if the Supreme Court agrees with the Special Master’s position on equitable apportionment, the decision could serve as a model for other groundwater conservation and allocation efforts; if the Supreme Court disagrees, many states may begin claiming they “own” groundwater within their state lines, which is likely to lead to a myriad of unforeseen and complicated legal, and practical, disputes. While the southeastern United States has historically enjoyed enough water, the water wars of the western United States offer a preview of what could come; the foregoing demonstrates that turbulent disputes have historically been just below the surface of what may seem calm waters.

Senate Energy & Nat. Res. Comm. Subcomm. Water & Power, Examining the Status and Management of Drought Conditions in the Western United States (Oct. 6, 2021) (Statement of Tanya Trujillo, Asst. Sec’y Water & Science, U.S. Dept. Interior), https:// www.doi.gov/ocl/western-us-drought. Black’s Law Dictionary (11th ed. 2019) defines riparian rights, “The right of a landowner whose property borders on a body of water or watercourse. Such a landowner traditionally has the right to make reasonable use of the water.” Christopher L. Len, Synthesis – A Brand New Water Law, 8 U. Denv. Water L. Rev. 55, 55 (2004). See, e.g., Mitchell S. Ashkenaz, Man V. Mussel, The Gloves Are Coming Off: Supreme Court Equitable Apportionment and the Tri-State Water Wars, 18 U. Denv. Water L. Rev. 1 (2014). C. Hansell Watt, IV, Who Gets the Hooch?: Georgia, Florida, and Alabama Battle for Water from the Apalachicola-Chattahoochee-Flint River Basin, 55 Mercer L. Rev. 1453, 1457 (2004). U.S. Dep’t State, 4 Territorial Papers of the United States 84–85 (Report of the Secretary of State to the President), 424–25 (An Act for the Admission of the State of Tennessee) (Clarence E. Carter ed., 1936). See Susan Haynes & Elizabeth Hornbrook, Boundaries and Jurisdiction of the State: Proposing a Settlement of the Boundary Between the State of Georgia and the State of Tennessee; and for Other Purposes, 30 Ga. St. U. L. Rev. 241, 243 (2013). Georgia Legislature Again Tries to Claim Land in Tennessee, SustainAtlanta (April 5,

and healthy this winter! VETERANS LEGAL ADVICE CLINIC The Veterans’ Legal Advice Clinic is a joint project of the KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox Co. Public Defender’s Community Law Office, the UT College of Law, LMU- Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. The next Veterans Legal Clinic will be held in-person at the Knoxville Community Law Office on December 8, 2021 from 12 p.m. until 2 p.m. VOLUNTEER BREAKFAST COMMITTEE CONTINUES OPERATIONS The Knoxville Barristers Volunteer Breakfast Committee is now able to prepare and serve breakfast again at the Volunteer Ministry Center, located at 511 N. Broadway, Knoxville, Tennessee at 6:15 a.m. on the fourth Thursday of every month. Please contact either Mitchell Panter at (865) 546-4646 or Matt Knable at (865) 360-5044 with any questions and/or about volunteering. BARRISTERS SPARK TOY DRIVE The Knoxville Barristers Hunger and Poverty Relief Committee is collecting monetary donations for toys that they can adapt for children with alternative needs and disabilities for the SPARK Toy Drive. Please keep an eye out for a flyer with information on how to donate.

2019), https://sustainatlanta.com/2019/04/05/georgia-legislature-again-tries-toclaim-land-in-tennessee/. 9 US Geological Service Topographical Map, NEW HOME, GA-AL-TN TNM GEOSPATIAL, https://store.usgs.gov/product/463614. The Nickajack Reservoir pool of the Tennessee river currently comes within 200 feet of the Tennessee – Georgia border (last visited Nov. 4, 2021). 10 Haynes, supra note 7, at 243. 11 U.S. Const. art. III, § 2; see also Florida v. Georgia, 141 S.Ct. 1175, 1180 (2021). 12 Florida, 141 S.Ct. at 1180 (citation omitted). 13 See, e.g., Nebraska v. Wyoming, 325 U.S. 589, 599 (1945) (noting that the Supreme Court uses equitable apportionment irrespective of whether the complaining states are riparian or priority of appropriation states; the method of equitable apportionment takes the state common law into consideration in the analysis). 14 See, e.g., New Jersey v. New York, 283 U.S. 336, 342 (1931) (“The different transitions and practices in different parts of the country may lead to varying results but the effort always is to secure an equitable apportionment without quibbling over formulas.”). 15 Florida’s Motion for Leave to File a Complaint, Complaint, and Brief in Support of Motion, Florida v. Georgia, No. 142 (Oct. 1, 2013). 16 Id. ¶ 42. 17 Ralph I. Lancaster, Jr., Report of the Special Master, Florida v. Georgia, No. 142 (U.S. Feb. 16, 2017). 18 Paul J. Kelly Jr., Report of the Special Master, Florida v. Georgia, No. 142 (U.S. Dec. 11, 2019). 19 Florida, 141 S.Ct. at 1181–83. 20 Complaint, Mississippi v. Tennessee, No. 143 (U.S. June 6, 2014). 21 Id. ¶ 14, 18. 22 Id. ¶¶ 52–55. For more information on the Sparta-Memphis aquifer, see The Memphis Aquifer, University of Memphis CAESER, https://caeser.memphis.edu/ resources/memphis-aquifer/ (last visited Nov. 2, 2021). 23 Complaint, supra note 20 at ¶¶ 38, 48–50. 24 Eugene E. Siler, Jr., Report of the Special Master at 26, Mississippi v. Tennessee, No. 143 (U.S. Nov. 5, 2020). 25 Id. 26 Id. at 26. 27 Mississippi’s Brief in Support of Motion for Leave to File Bill of Complaint in Original Action at i-ii, Mississippi v. Tennessee, No. 143 (U.S. June 6, 2014).

DICTA

December 2021

B O AT B U I L D E R S By: Melissa B. Carrasco

Egerton, McAfee, Armistead & Davis, P.C.

MISSING Odds are good that, by now, you know more about 1918 than you ever cared to know. You now know that it was the year of the most recent, and possibly the most severe, world-wide pandemic since the Black Plague. You know that the H1N1 virus infected over one third of the world’s population and killed nearly 700,000 in the U.S. alone. You know that, in 1918, people were wearing face masks and quarantining and avoiding social gatherings, and you are probably exhausted with people trying to make comparisons between 1918 and the past two years.1 But, something else was going on in 1918. On a brisk day in November, a group of people started to assemble on Gay Street in downtown Knoxville. Despite the virus that was wreaking havoc and that had driven everyone into isolation, this gathering started to grow. Quickly dozens turned into hundreds and then thousands, standing in front of Hope Brothers Jewelers located at 428 South Gay Street.2 They were all staring at the tall, iron clock on the sidewalk in front of the building.3 In case you are wondering, the building that housed Hope Brother Jewelers is still there, once occupied by the Sapphire restaurant, and soon to be the boutique Hotel Cleo once the renovations are complete.4 Unfortunately, the iron clock was removed in 1933, and then replaced in 2008 by a group of downtown boosters.5 But, I digress. Everyone stared at the clock as the minute hand slowly approached noon: 11:57, 11:58, 11:59, 12:00 . . . and the crowd began to cheer. It was Armistice Day, and on the eleventh day of the eleventh month at 11 a.m. local time, Germany officially surrendered to the Allies in a train car in the Forest of Compiegne France. World War I was over.6 Barely a month earlier, on October 8, 1918, Sgt. Alvin Cullium York of Fentress County, Tennessee led the assault which earned him a Medal of Honor--taking charge of his platoon’s seven surviving members and leading an assault upon the deadly nest of machine guns that had decimated his platoon. Sgt. York and his brave soldiers captured over 130 enemy officers and soldiers and saved the lives of countless other Allied troops7 That same day, Knoxville native Sergeant James Ernest “Buck” Karnes and his Morristown counterpart, Calvin Ward, also found their platoon pinned down by machine gun fire. They had “had all they could take,” and so they fixed their bayonets, charged the machine gun nest, and killed or captured 10 enemy soldiers. They then led the 117th Infantry in a charge that broke through the Hindenburg line and led to the last major offensive of World War I.8 By November 11, 1918, the tide had turned, and the crowds on Gay Street had much to celebrate—pandemic or no pandemic—as they looked forward to seeing their loved ones again. The troops were coming home. But, across the Atlantic, things were not so positive. An estimated 9.7 million soldiers had died of injuries or illness in just four years.9 Historians estimate that another 10 million civilians were killed during the war, leaving countless parents, spouses, children, and families to pick up the pieces.10 And while the surviving U.S., Canadian, and Australian troops were able to return to homes and families who were protected by oceans, the European landscape was ravaged by war.11 Soldiers from Russia, France, Germany, Great Britain, Italy, Serbia, Romania, Denmark, Austria, Hungary, and many other European nations returned to cities that had been reduced to rubble and a countryside scarred by the tracks of tanks and troops, forever embedded with the memories of the dead. In Germany alone, there were 525,000 widows and 2,040,000 military men killed or missing.12 Countless children had lost at least one parent. But, for the citizens of Germany and the other Central Powers, December 2021

the situation was even more dire. For years, a maritime blockade overseen by the Inter-Allied Blockade Council had prevented food, medicine, farming supplies, and other supplies from reaching Germany, AustriaHungary, Bulgaria, and Turkey.13 Although most historians view the blockade as instrumental in bringing WWI to an end, its toll on civilians was harsh. In December 2018, Germany’s Board of Public Health estimated that 763,000 civilians died from starvation and disease due to the blockade. A later study put the death toll at around 424,000. Either way, a lot of people were sick, starving, and dying.14 Therefore, it was no surprise that, when Germany signed the Armistice documents, they asked the Allies to lift the blockade.15 The Allies were noncommittal. By December 1918, the blockade was still in place. After all, there were plenty of other people who were suffering in Europe—suffering that had been caused by Germany’s aggression.16 Eglantyne Jebb, a wealthy young British woman was appalled. She began lobbying Parliament to lift the blockade, passing out pamphlets with pictures of starving children.17 She was arrested, and then released.18 On December 15, U.S. President Woodrow sent a letter to the Allied leaders asking them to begin winding down the blockade so that countries could resume trade with Germany.19 In the meantime, Secretary of Commerce Herbert Hoover was working on a plan for the U.S. to ship pork and other food supplies to Scandinavia and then ship it to Germany without navigating the blockage.20 On Christmas Eve, the blockade counsel approved Wilson’s request, and it looked like help was on its way.21 However, one week later, before any of the pork or other supplies could get through, the counsel reversed itself, and the food and supplies were halted.22 Historians estimated another 100,000 people died of starvation and sickness before the blockade was lifted in July 1919.23 This year we have looked at some of the boat builders of the world— ordinary people who saved lives, won wars, preserved perspective, freed enslaved people, and restyled the legal profession simply by doing their jobs. But, this story illustrates what happens when the boat builders give up too quickly. So, don’t go missing. Keep on building those boats. You don’t know who needs one to stay afloat.

3 4

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by some strange happenstance, you are blissfully unaware of the 1918 influenza If, pandemic OR you really do enjoy timelines and semi-morbid photographs, the CDC has compiled a fascinating history of the 1918 influenza pandemic complete with detailed timelines, lots of photographs, and an even more disturbing chart of “Influenza Milestones” charting the history of the influenza virus as it first landed in the U.S. in 1917 and then morphed over the years to become such a normal part of life that we now think of the flu as a “season” that we all experience in the fall and winter . . . like football season or basketball season. See Centers for Disease Control & Prevention, Influenza, https://www.cdc.gov/flu/pandemicresources/1918-commemoration/1918-pandemic-history.htm (last visited Nov. 10, 2021). Knoxville History Project, Veterans Day in Knoxville (Nov. 9, 2015) https:// knoxvillehistoryproject.org/2015/11/09/veterans-day-in-knoxville/ (last visited Nov. 10, 2021). Id. See Knox Heritage, Hope Brothers Building, https://knoxheritage.org/our-work/ neighborhood-tours/historic-downtown-knoxville-walking-tour/hope-brothersbuilding/ (last visited Nov. 10, 2021); see also Sapphire Knoxville, www. sapphireknoxville.com (last visited Nov. 10, 2021); Ryan Wilusz, Sip and Stay on Gay Street: Hotel Cleo set to Transform Historic Downtown Building, Knox News Sentinel (Oct. 15, 2021), available at https://www.knoxnews.com/story/ news/2021/10/15/hotel-cleo-knoxville-tennessee-bar-sapphire-owners-hopebrothers-building/8469895002/. Knox Heritage, supra n.4. continued on page 24

AROUND THE BAR

AND THE SURVEY SAYS... KBA’S 2021 ECONOMICS & LAW PRACTICE MANAGEMENT SURVEY The survey had two primary objectives: (1) To provide timely, relevant and accurate information to inform and guide practical management and planning decisions by local attorneys, including private and non-private practitioners, judiciary and government workers, and (2) To monitor key trends within the legal profession. METHODOLOGY The 2021 KBA Economics and Law Practice Management Survey was submitted electronically to 1,554 bar members in August 2021. 296 members completed the survey in full for a response rate of about 19%, meaning we can have high confidence that the survey responses reflect the demographics and economics of the Knoxville legal community overall. The survey was designed jointly by the Knoxville Bar Association and the ABA Division for Bar Services. The data collection and analysis were handled by the ABA Division for Bar Services. Review the complete survey results under Member Resources at www.knoxbar.org to find the responses filtered by years of experience, employment setting and firm size. HIGHLIGHTS FROM THE SURVEY RESULTS DEMOGRAPHICS • Almost half of respondents are over 50 years of age. • 59% are male. • One-third have been practicing over 30 years. • 38% have been members of the KBA for at least 20 years. CURRENT POSITION/PRACTICE SETTING • 78.5% are in private practice. • 47% are in a practice with 5 or fewer attorneys. YOUR LEGAL PRACTICE • 9% devote 60 hours or more to the legal profession in a typical week, down from 15.2% in 2019. • Client expectations and work-life balance have the most impact on the ability to successfully practice law. • 54% report experiencing an increase in clients having a higher level of expectations compared to the past. • The issues causing the most concern are balancing work and personal issues (3.95 concern level on a scale of 1-5), earning a living (3.90) and keeping current in the practice of law (3.84). • 54% would pursue the legal profession as a career if they were making the decision again (30% are not sure). • 77% percent spend at least an hour per week on volunteer work, with 18% spending 6-10 hours per week. • The average number of pro bono hours completed in 2020 was 35.9 hours. HOURLY BILLING/BILLABLE HOURS • 76% had billable hours in 2020. • 27% (up from 23% in 2019) had 1,000 billable hours or fewer; 14% had 1,801-2000 billable hours. • 75% charge on an hourly basis. • 51% have an average or standard hourly rate of $250 or more. • 58% (up from 51% in 2019) have increased their rate over the past two years, and 40% plan to increase their rate in 2022.

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December 2021

FIRM OR LEGAL OFFICE PRACTICES • 23% have adjusted billing rates within the last year. • 10% have renegotiated office leases within the last year. • 25% have a strategic planning committee; 15% have a pro bono policy; 24% have a succession plan. • 36% have cyber liability insurance. BUDGET/FINANCES • 20% (up from 17% in 2019) had at least $100,000 in educational debt upon graduation from law school. • 27% had no debt, and 18% had less than $25,000 in debt. • 54% of the legal office or law firm’s gross receipts are attributed to all lawyer compensation, 22% to support staff compensation, and 23% to other expenses. • 59% anticipate their technology budget will increase in 2022. • 20% anticipate their travel budget will decrease in 2022. COMPENSATION AND BENEFITS (see full report for average compensation levels)

Attorney experience

Recent law school graduates with no experience

Minimum

Maximum

Average

$48,000

$180,000

$71,809

$35,000

Recent law school graduates with experience (internship, clerkship) Current attorneys with less than 3 years of experience

$45,000

Current attorneys with 6 to 8 years of experience

$60,000

Current attorneys with 3 to 5 years of experience

$45,000

Current attorneys with more than 8 years of experience

$70,000

Partner, shareholder or member

$80,000

$85,000 $95,000

$120,000

$300,000

$400,000

$500,000

$64,497 $74,680

$81,147

$102,663

$126,589

$221,714

YOUNG LAWYER FEEDBACK • 39% desire to be a partner at their current firm within ten years. • 41% are very confident they will achieve their ten-year goal. • 67% anticipate they will continue to work at their current firm/employer for the next five years. Twenty percent are unsure. • 88% believe the increased incorporation of technology will have a positive impact on their current or intended practice area(s). • 70% would be encouraged to explore new job opportunities based on the potential for increased compensation; 64% would be encouraged based on the potential to improve work/life balance. • The most important elements in evaluating a potential employer (based on a 1-5 scale where 1=extremely unimportant and 5=extremely important) are commitment to fostering work/life balance for employees (4.85 mean), salary (4.63 mean) and flexible work schedule (4.48 mean). • 88% have had a mentor (75% of which were attorneys at firm/employer) and 60% indicated the mentor was extremely impactful in their career.

S C H O O L E D I N E T H I C S , continued from page 19

with an appendix that tracks the changes to the text of each rule) is available at https://www.tba.org/?pg=LawBlog&blAction=showEntry&blogEntry=64580. If you opened up an old Tennessee rules book, you probably found a Rule 7.2. That’s no longer the rule. This is another opportunity to reflect upon the problem of keeping out-of-date rule books in a lawyer’s office. The best way to compare is to read the deleted 7.2(c) and the new 7.3(f) in the Court’s September 1, 2021 Order that is available at http://faughnanonethics.com/ wp-content/uploads/2020/10/TBA-Advertising-Rules-Petition.pdf. Tennessee RPC 5.4(a)(6). The language of section Tennessee’s 5.4(a)(4), similar to the ABA rule, allows a lawyer to share court-awarded fees “with a client represented in the matter or with a non-profit organization that employed, retained, or recommended employment of the lawyer in the matter.”

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The current list of registered intermediary organizations is found at https://www. tbpr.org/for-legal-professionals/rule-44-intermediary-organizations. The Tennessee Supreme Court’s Order addressing the proposed amendment of RPC 7.6 and the deletion of Rule 44 is available at https://www.tncourts.gov/ sites/default/files/comment_order_for_r8rpc_7.6_and_rule_44_-_deadline_ november_30_2021.pdf. These provisions are found in proposed Tennessee RPC 7.6(b)(3), (4).

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

RECENT HOLDINGS TENN. CODE ANN. § 56-7-105 MAY NOT APPLY TO AUTO INSURANCE POLICIES Tenn Code Ann. § 56-7-105 is frequently referred to by lawyers as the “Bad Faith” statute. Bad Faith. Everything about that phrase just seems, well, bad. I searched the interwebs for songs with the phrase “bad faith” and literally found scores of songs… that I had never heard of before. Bad Medicine. Yeah, but I refuse to do an article on that awful Bon Jovi song, so there will be no more song references in this article. Well, maybe one more. Tennessee Bad Faith Law Regarding Insurance Policies State and federal courts in Tennessee do not recognize a common law cause of action against an insurer for bad faith. 1 Tenn Code Ann. § 56-7-105, the “bad faith statute” is penal in nature, only applies to insureds under the policy and is to be strictly construed. 2 “To recover, the plaintiff must prove: ‘(1) the policy of insurance must, by its terms, have become due and payable, (2) a formal demand for payment must have been made, (3) the insured must have waited 60 days after making his demand before filing suit (unless there was a refusal to pay prior to the expiration of the 60 days), and (4) the refusal to pay must not have been in good faith.’” 3 Several cases have held that the bad faith statute does not apply to some automobile liability insurance policies. 4 However, one decision of the Tennessee Supreme Court has been argued by some to hold the insurer’s conduct in handling an underinsured motorist claim could trigger the statutory penalty. 5 Both the Tennessee Court of Appeals and the Middle District of Tennessee have weighed in recently on the issue. My partner Jeff Nicoson in our Memphis office emailed me about a very recent case in which the Tennessee Court of Appeals in Giles v. Geico. In Giles, the Court of Appeals held that the bad faith penalties in Tenn Code Ann. § 56-7-105 do not apply to auto insurance policies. 6 The Giles Court conducted a detailed survey on Tenn Code Ann. § 567-105, another applicable statute and multiple other cases to come to its conclusion. The Middle District also rendered a recent opinion which discussed which policies are generally subject to the bad faith failure to pay statutory penalty. Generally, Tenn Code Ann. § 56-7-105 “applies only ‘to that class of written contracts, which written contracts themselves, [bear]

interest from the time they [become] due.’” 7 The Courts in both Giles and For Senior Help relied heavily on the 1964 opinion by the Tennessee Supreme Court in Tenn. Farmers Mut. Ins. Co. v. Cherry. The Middle District stated, “as explained in Cherry, [Tenn Code Ann. § 56-7-105] applies to ‘life insurance, fire insurance and accident insurance’ policies, ‘since these types of insurance policies would bear interest from the time they became due, regardless of whether a judgment was recovered on them or not.’” 8 “It does not apply to liability insurance policies pursuant to which an insurance company ‘agrees to pay, on behalf of the insured and within specified limits, all sums which the insured shall become legally obligated to pay as such damages’ to a third party.” 9 The Takeaway The Court of Appeal in Giles expressly excluded all automotive policies from the bad faith penalties of Tenn Code Ann. § 56-7-105. The language in For Senior Help seems to suggest that no liability policies may not be covered by Tenn Code Ann. § 56-7-105. Thanks, Jeff. As always, I get by with a little help from my friends. Sorry, I just can’t help it.

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Chandler v. Prudential Ins. Co., 715 S.W.2d 615, 620 (Tenn. Ct. App. 1986) (the bad faith penalty statute is the exclusive remedy); see also Wynne v. Stonebridge Life Ins. Co., 694 F. Supp. 2d 871, 879 (W.D. Tenn. 2010). Ginn v. Am. Heritage Life Ins. Co., 173 S.W.3d 433, 443 (Tenn. Ct. App. 2004); See also Minton v. Tenn. Farmers Mut. Ins. Co., 832 S.W.2d 35, 38 (Tenn. Ct. App. 1992). Burge v. Farmers Mut. of Tenn., No. M2016-01604-COA-R3-CV, 2017 Tenn. App. LEXIS 235, at *29 (Tenn. Ct. App. Apr. 13, 2017). See Medley v. Cimmaron Ins. Co., Inc., 514 S.W.2d 426 (Tenn. 1974); see also Tenn. Farmers Mut. Ins. Co. v. Cherry, 374 S.W.2d 371 (Tenn. 1964); Manns v. Ind. Lumbermen’s Mut. Ins. Co. of Indianapolis, 482 S.W.2d 557 (Tenn. Ct. App. 1971). Gaston v. Tenn. Farmers Mut. Ins. Co., 120 S.W.3d 815 (Tenn. 2003). Giles v. Geico General Insurance Co., No. M2021-00165-COA-R3-CV, 2021 Tenn. App. WL 5013746 (Tenn. Ct. App. Sep. 15, 2021). For Senior Help, LLC v. Westchester Fire Ins. Co., 515 F. Supp. 3d 787, 800 (M.D. Tenn. 2021) (quoting St. Paul Fire & Marine Ins. Co. v. Smith, 767 F.2d 921, 1985 WL 13383, at *5 (6th Cir. June 26, 1985) (table op.); see Tenn. Farmers Mut. Ins. Co. v. Cherry, 374 S.W.2d 371, 372 (Tenn. 1964). Id. (quoting Cherry, 374 S.W.2d at 372). Id.

B O A T B U I L D E R S , continued from page 21

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12 10 11

Knoxville History Project, supra n.2. Congressional Medal of Honor Society, Alvin Cullium York Citation, available at https://www.cmohs.org/recipients/alvin-c-york. Medal of honor Convention, James Ernest “Buck” Karnes, available at http://www. mohconvention.com/tn-recipient/16/james-ernest-buck-karnes/. Reperes, Partenariat Educatif Grundtvig 2009-2011 (English Tranlation), available at http://www.centre-robert-schuman.org/userfiles/files/REPERES%20 %E2%80%93%20module%201-1-1%20-%20explanatory%20notes%20 %E2%80%93%20World%20War%20I%20casualties%20%E2%80%93%20EN.pdf. Id. Id. Peggy Bette, War Widows, International Encyclopedia of the First World War (Dec. 18, 2015), available at https://encyclopedia.1914-1918-online.net/article/war_ widows. History of Western Civilization II, The British Naval Blockade, available at https:// courses.lumenlearning.com/suny-hccc-worldhistory2/chapter/the-british-navalblockade/. Id.

Mary Elisabeth Cox, The Forgotten Story of Christmas 1918, N.Y. Times (Dec. 25, 2019), available at https://www.nytimes.com/2019/12/25/opinion/christmas-worldwar-i-1918.html. 16 Id. 17 Mary Elisabeth Cox, Hunger in War and Peace: Women and Children in Germany, 1914-1924, p. 253 (Oxford University Press 2019). 18 Id. 19 Id. at 255. 20 Cox, supra n. 15. 21 Id. 22 Id. 23 Schaedigung der deutschen Volkskraft durch die feindliche Blockade (English Trans.). 15

DICTA

December 2021

BARRISTER BITES By: Angelia Morie Nystrom

The University of Tennessee

LET’S TALK TURKEY... AND EAT PIE For as long as I can remember, I have loved Fall. My dad always said that he thought Fall was sad because it got darker earlier, the leaves turned and fell off the trees, and it ushered in winter weather (which he always said was torture for a UPS man). I could understand his point of view, but I have never shared it. To me, Fall is a magical time, and there is nothing better than the month of November. I have always been a fan of November. The football Vols have traditionally done pretty well in November. Tennessee basketball begins in November. My dad’s birthday was in November, which always meant really good German chocolate cake (his favorite, homemade by my grandmother) and pecan pie (made by one of his favorite cousins). My wedding anniversary is in November. And, of course, there is Thanksgiving. Of all of the “eating holidays” (for us, Thanksgiving, Christmas and Easter), Thanksgiving is the best. Thanksgiving is the unique holiday where we can focus on the fact that we are thankful for all kinds of things… including really good food. Growing up, Thanksgiving began with lunch at my Mamaw French’s house. Lunch was always at 12:00 sharp and included our immediate family. My grandmother was a fantastic cook. My plate was always loaded with perfectly cooked turkey, cornbread dressing, and maybe one or two tablespoons of green beans—just so I had something from the vegetable food group. Dessert always included chocolate pie and banana pudding. When the Detroit Lions took the field, we usually headed for the car and off for round two. “Lunch” at my Grandmother Morie’s usually started around 4:30 pm (because she kept on schedule about as well as my sixteen year-old). Her house was always full of people—lots of relatives, family friends, and the “randomers” who were quickly taken into the family and who were always welcomed (unless they ate too much of my dad’s German chocolate birthday cake). It was a day I looked forward to all year, and it never disappointed. Thanksgiving was always a day of non-stop eating… and, for this foodie, non-stop fun. As the years have gone by, our traditions have changed. Our family has celebrated at home, at other people’s homes, and at restaurants. We have even managed to make it to New York for the Macy’s Thanksgiving Day parade a couple of times. No matter where we are, though, Thanksgiving has always featured great food. A few years ago when the family celebration was at our house, Hugh and I decided to make every dish in the Thanksgiving version of the Williams-Sonoma cookbook. While all the dishes were really good, the highlight of the Thanksgiving meal was the dessert—the Deep-Dish Apple Bourbon Streusel Pie. This “pie” is prepared in a rectangular baking dish and combines December 2021

elements of many classics—pecan pie, Dutch apple pie and pastry-heavy slab pie — to create something completely new. It is great when you are serving a crowd, as it will easily serve 12-14 people. To make the pie filling, you will need 3 lbs. each of Granny Smith apples and Pink Lady apples (peeled, cored and cut into slices ¼ thick), ¾ cup firmly packed light brown sugar, ½ cup granulated sugar, 1 ½ tsp. ground cinnamon, ¼ tsp. salt, ¼ tsp. freshly grated nutmeg, ¼ cup cornstarch, ½ cup bourbon (I prefer Pritchard’s chocolate bourbon), 2 TBS. vanilla extract. PLEASE NOTE: It is not a typo in the recipe when it calls for 6 lbs of apples. You will actually use that many. To peel, slice and core, I use the Williams-Sonoma apple peeler/slicer/corer. It makes the preparation of the apples much easier, and the crank on the machine is quite the workout (which will be needed if you eat this pie). For the streusel, you will need 2/3 cup allpurpose flour, ½ cup granulated sugar, ½ cup firmly packed light brown sugar, 1 TBS. ground cinnamon, ½ tsp. salt, 1 cup roughly chopped pecans, and 7 TBS. cold, unsalted butter (diced). For the pie crust, I just use the Pillsbury pie crust rolled dough that is found in the refrigerator aisle at the grocery store. Pillsbury can make a pie crust much better than me—plus, it saves a TON of time. To prepare the pie, roll the dough out into your baking dish, covering the bottom and sides so that it extends just beyond the rim of the dish. Refrigerate for 30 minutes. Position a rack in the lower third of the oven and preheat to 375°. For the filling: In a large bowl, stir together the apples, brown sugar, granulated sugar, cinnamon, salt, nutmeg, cornstarch, bourbon and vanilla until well combined. For the streusel, in a bowl, stir together the flour, granulated sugar, brown sugar, cinnamon, salt and pecans. Add the butter and work it in with your fingers, pinching to form pea-size pieces. Pour the apple mixture into the pie shell and sprinkle the streusel on top. If you want to be fancy, use Thanksgiving cookie cutters and another piece of pie crust dough to make decorative cutouts. Those can be placed on the sides of the pie and the top, as desired. I’m not fancy, so I don’t do this. Bake until the streusel is golden brown and the apples are tender, about an hour and 45 minutes. If the top of the pie has browned after 1 hour, tent it loosely with aluminum foil and allow it to continue to bake. Transfer the pie to a wire rack and let cool for at least 2 hours before serving. While this pie is wonderful by itself, I actually prefer it heated and then topped with vanilla ice cream. Although this pie takes about an hour to make, it is worth the effort. Even if we don’t celebrate Thanksgiving at home, we always celebrate with this pie at some point in November. And for that, we give thanks.

DICTA

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

By: Phil Hampton

DON’T FORGET YOUR DIGITAL ASSETS AND LEGACY IN YOUR ESTATE PLANNING We are getting old, especially Bill. Planning for how our assets will be handled after we kick the bucket has suddenly become very important. We own a bunch of gadgets and other electronic stuff. Ok, most of it is, or will soon become obsolete electronic recycling fodder. But we both have some valuable digital stuff. We bet that most of you do too. A competent estate plan, in this day and time, must include the preservation and transfer of digital assets as essential components. Now, you may ask, “What are the digital assets you are talking about?” Those assets include all electronic information and records that you own or possess: Digital Photos, Stored Films and movies, Ebooks, all information in cloud accounts, Social media accounts, Digital Subscriptions, online access to financial assets, websites, trademarks, personal information stored electronically, cryptocurrency, NFTs, online access to bank and investment accounts, credit card rewards, email accounts, and so forth. Digital assets are possessions that are purchased, stored or available on digital devices or online services. These may include photos, videos, music, websites, blogs and eBooks. The Digital Legacy Association (https:// digitallegacyassociation.org/) is an excellent resource for guidance in these matters. It defines “Digital Legacy” as follows: A digital legacy is the digital information that is available about someone following their death. Someone’s digital legacy is often formed by information that they leave online. This may include any website or blog listings about the person, their social media profiles, photos, videos, gaming profiles and interactions they have had online. It defines “Digital Assets” as follows: Digital assets are possessions that are purchased, stored or available on digital devices or online services. These may include photos, videos, music, websites, blogs and eBooks. How do you properly plan for the preservation and transfer of

these assets? First, prepare a will, but, the will cannot be the type we learned about in Decedents’ Estates in law school. The will must contain specific provisions and directives on how to deal with your digital assets and digital legacy. A good place to start is the Revised Uniform Fiduciary Access to Digital Assets Act, TCA §35-8-101 et seq. (“RUFADDA”). You should have a clause addressing the issue of digital assets. It should specifically address a fiduciary’s access to digital assets, electronic communications, and online accounts. Your financial power of attorney should address the same issues. But that is not enough. You need to discuss these assets with your loved ones. You need to prepare an inventory of all your digital assets, accounts, etc. You need to include passwords, hardware, subscriptions, etc. Put that information in a safe deposit box or other safe, secure place. In order to make the process easier after you are gone, make sure you have implemented a password manager, and provided information on how to access your cellphone (which will come in handy on twofactor authentication). All of this needs to be accomplished in accordance with the provisions of the RUFADDA. It is a good idea to consult with a “techie” or someone who is knowledgeable about all this stuff. For example, do you want your Facebook page to survive you? Do you want to leave your Instagram photos posted? Make your wishes clear. At a minimum, you need to have all your digital assets “locked down” and secure to prevent the risk of identity theft, etc. You can put your wishes in your will or in a separate document left for those who will be handling your matters. If handling these matters is “over the head” of your executor, give your executor guidance on who to turn to for advice in these technical, digital matters. There are many complicated issues in this area. Just make sure have fully considered and provided for your digital assets and your digital legacy before it is too late. We hope we did not “bum you out” with this article, but we feel these matters are really important.

DICTA

December 2021

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

WHAT WOULD GEORGE DO? Presidents often look to their predecessors for inspiration. Well, some of their predecessors. I imagine that few modern presidents have modeled themselves after James Buchanan or Franklin Pierce. But Lincoln? Sure. One of the Roosevelts? Absolutely. And George Washington? Well, duh. So let’s look to George as we consider a current issue: increasingly militant resistance to federal COVID mandates. George faced a similar situation in the early 1790s. It eventually turned into something called the Whiskey Rebellion—you know, that thing that you studied for five minutes or so in high school? It involved . . . whiskey, right? Indeed it did. But the constitutional issues it presented, and resolved, were quite sobering.1 Quick recap. When George Washington took his first presidential oath, our young nation was broke. No, worse than that. We were bankrupt. We had borrowed heavily to finance our experiment in selfgovernment, and we had neither the means nor the political will to pay our debts. Enter today’s favorite Founder, Alexander Hamilton.2 He was both a brilliant lawyer and a financial wizard. Appointed by Washington to be our first Treasury Secretary, Hamilton convinced Congress to take the extraordinary and counterintuitive step of assuming responsibility for all war debts that had been incurred by the states. He then convinced that august body to enact an excise tax to retire those debts. He thus accomplished two of his most cherished goals: 1) restoring American credit; and 2) centralizing power in the national government. Money is, after all, another word for power. The new national excise tax covered all distilled spirits, but it was commonly called the “whiskey tax.” It was controversial for several reasons. First, all new taxes are controversial. Second, it was a so-called “internal” tax, that is, a tax on domestic economic activity, as opposed to long-established “external” taxes such as duties paid on imported goods. While duties were easily collected at seaports, the whiskey tax required an army of tax collectors who, in the opinion of opponents, oppressed American citizens in their own homes with incessant demands for payment. Third, the tax placed a disproportionate burden on small producers, such as farmers who used their own crops to distill spirits. Farmers lacked both economies of scale and the ability to keep accurate production records. Finally, the hardest-hit farmers were mostly from the western frontier, which, at that time, was Appalachia. Frontier folk had almost no “hard” money, such as negotiable bank notes or gold coins, so whiskey was a common medium of exchange. It was also an export product that was much easier to ship to eastern markets than grain and other agricultural produce. To make matters worse, alleged tax cheats had to travel all the way to Philadelphia to stand trial, an arduous and expensive journey that Appalachian subsistence farmers could ill afford. Whiskey tax resistance was common throughout Appalachia. But it became particularly violent in western Pennsylvania, where tax collectors, and even local distillers who did nothing more than comply with the law, were attacked, tarred-and-feathered, and occasionally had their barns burned. At a place called Bower Hill, more than 500 militiamen fired on

a tax collector and federal troops, causing several deaths. Resisters fancied themselves the inheritors of the spirit of the American Revolution. They erected liberty poles and decried what they considered taxation without representation. But, of course, it wasn’t. Western Pennsylvanians had a representative in Congress, William Findlay, who argued their positions, with some success. They also had two U.S. Senators from Pennsylvania to represent them. Opponents also argued that Congress had no power to lay “internal” taxes; such a power resided exclusively in the state governments. That was also incorrect. Article I, Section 8 of the United States Constitution is clear: [t]he Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.3 Into this morass stepped George Washington, the first president to swear that he would “take Care that the Laws be faithfully executed.”4 George took his oath seriously. In August of 1792, as lawlessness spread throughout western Pennsylvania, he issued a proclamation: [I]t is in my judgment necessary under the circumstances of the case to take measures for calling forth the militia in order to suppress the combinations aforesaid, and to cause the laws to be duly executed; and I have accordingly determined so to do, feeling the deepest regret for the occasion, but withal the most solemn conviction that the essential interests of the Union demand it, that the very existence of government and the fundamental principles of social order are materially involved in the issue . . .5 George then assembled an army of close to 13,000 men. He mounted his horse and marched westward. The insurrectionist leaders fled. Ultimately, only a few low-level offenders were tried for treason, and only two were convicted. They were sentenced to death. Washington pardoned them. He had made his point. The Whiskey Rebellion was over. So, WWGD (What Would George Do) if confronted today by refusal to obey federal laws mandating COVID vaccinations, especially if that refusal were accompanied by violence? He’d take care that the laws were faithfully executed. Joe Biden will doubtless do the same, although I doubt that he’ll do it on horseback.

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For a comprehensive treatment of this often-overlooked chapter in our constitutional history, I recommend Thomas P. Slaughter’s excellent book, The Whiskey Rebellion: Frontier Epilogue to the American Revolution. Known during his hip-hop days as A. Ham Daddy. Okay, not really. U.S. Const., Art. I, § 8. U.S. Const., Art II, § 3. By the president of the United States of America, A PROCLAMATION, August 11, 1794, available at: https://avalon.law.yale.edu/18th_century/gwproc03.asp

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. December 2021

DICTA

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. RETIREMENT RECEPTION FOR JUDGE EMERY The Knox County General Sessions Court will hold an informal reception honoring the retirement of Judge Geoffrey Emery on Friday, December 10, 1 – 3 p.m. in the Small Assembly Room of the City-County Building. Light refreshments will be served. All are welcome.

WELCOME NEW MEMBERS

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

Amy Ginsburg Ginsburg Law Group, P.C. Emily K. Lavelle The Lavelle Law Firm Julianna L. Mason Marty H. McCampbell Tennessee Attorney General’s office Katrice J. Morgan U.T. College of Law Brent A. Morris Morris & Doolan, PPLC Jennifer M. Noell Richard James Rice Costner & Greene Gavin A. Smelcer Owings, Wilson & Coleman Joseph Henry Smith Green Street Law, PC Matthew D. Stombaugh Butler, Vines and Babb, P.L.L.C. M. Jacob Werner Darrell G. Winfree Legal Aid of East Tennessee

APPOINTMENTS TO THE LEWIS THOMASON BOARD Lewis Thomason’s shareholders have elected Janet Strevel Hayes, a shareholder from the firm’s Knoxville office, to the firm’s Board of Directors. Rodney Fields, shareholder and managing partner of the Knoxville office, was re-elected to the Board of Directors for another two-year term. He was also re-elected Chairman of the Board. 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. 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. SAVE THE DATE! 2022 Law Practice Today Expo • March 31 - April 1 The KBA’s Law Practice Today Expo is the premier opportunity for you to get exposed to dynamic CLE courses from local and national speakers so that you can fast-forward your law office management skills and make new connections. If you are interested in helping plan the Expo, join the Law Office Technology Committee. OFFICE SPACE AVAILABLE: • Existing association of attorneys have available 1-2 office spaces in historical building 1816 Clinch Ave., across from Ft. Sanders Reg. Hospital to include parking spaces, conference room, reception area, receptionist, phone system, internet and Lexis access. Email cburks@ jnblawfirm.com or call (865) 522-4964 for inquires. •

•

NEW LAW STUDENT MEMBERS

Courtney L. Cox Kendra A. Edwards Drew M. Ellis Celine Etienne John M. Foster Sumner A. Garland Timothy J. Hollingsworth Kali M. King

Jillian N. Polk Kimberly N. Riddett Nicole Roth Hunter Snowden Charles W. Tate Claire L. Temple Heidi Timmerman

Address Changes

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

1520 Highland Avenue in Fort Sanders Available - The offices are $1,000/month and includes a private office and access to a common area that includes a full kitchen, reception area, conference room and separate client meeting room, plus 1 free parking space in addition to free on street parking. The office is “Class A” space (there’s even a fireplace in the meeting room!) and it would be a great office sharing arrangement for up to 4 people who are starting out. Rent includes utilities, alarm, and internet. Contact Perry Childress at (865) 803-2545. Private office building for Lease at 5301 Kingston Pike. 1,907 square feet with 2 entrances, 4 offices, 2 conference rooms, and workspace located in the heart of Bearden! Space previously occupied by Landry & Azevedo. Email justin.cazana@avisonyoung.com or call 865-4508883 for inquiries.

DICTA

Katie L. Chambers BPR #: 033870 Sobieski, Messer & Elledge, PLLC 612 S. Gay Street, 5th Floor Knoxville, TN 37902-1630 Ph: (865) 546-7770 kchambers@sobieskimesser.com Derrick M. Davis BPR #: 037122 Kay Griffin, PLLC 900 South Gay St., Suite 1810 Knoxville, TN 37902-1857 Ph: (865) 314-8422 derrick.davis@kaygriffin.com

John L. Haupt III BPR #: 037676 8001 Conner Rd Knoxville, TN 37849-3104 Ph: (865) 313-6039 jhaupt3@yahoo.com

Shannon F. van Tol BPR #: 017602 Anderson Busby PLLC P.O. Box 2588 Knoxville, TN 37901-2588 Ph: (865) 249-8011 svantol@andersonbusby.com

Myron C. Ely Foundation Title & Escrow Series, LLC BPR #: 001199 8930 Cross Park Drive, Suite 1 Knoxville, TN 37923-4713 Ph: (865) 690-7811 elym@foundationtande.com

December 2021

LONG WINDED By: Jason H. Long London Amburn

THANK YOU I started writing this column for DICTA in the spring of 1999. Let’s put that into perspective. The Tennessee Volunteers were the reigning college football national champions (let that sink in). That was seven coaches (counting interim), and I’m estimating around $15 million in contract buyouts, ago. I was 27 years old. Still fresh out of law school and trying to figure out how to practice law. Sheppeard & Swanson was my home (literally and figuratively as I lived in a two-room apartment next door to the office). I owned no home, had no children, and had not even met my wife, who was still in law school at the time. I did not own a cell phone. I remember my boss, Sarah Sheppeard, had just purchased a Palm Pilot and I thought it was the coolest tech gadget in the world (we had advanced as far as a civilization could go). No one had even conceived of Facebook, TikTok, Instagram, or Twitter. Bill Clinton was still president, by the hair of his chinnychin-chin. He had only weeks earlier been acquitted by the Senate on impeachment charges. Dr. Kevorkian was on trial for second-degree murder for administering a lethal injection to a terminally ill man in Michigan. Google had been founded about four months prior. Mark Zuckerberg was fourteen years old. On the local front, Annette Winston was president of the Knoxville Bar Association and the KBA offices were still located in an upstairs office on Union Avenue (anyone remember that space?). We only had one law school in town, and I would still have to go there, not infrequently, to Shepardize cases. Interesting to note that several students currently attending that law school had not yet been born when I wrote my first DICTA article. Regas was still The Gathering Place, down off Magnolia Avenue. Don Paine was still brewing beer and teaching us all how to practice law. Twenty-two years is a long time to do anything. While I have been submitting these columns, our country started and ended the longest war in US history. Tennessee basketball climbed to number one in the rankings not once, but twice. Tiger Woods won 14 of his 15 major championships. The towers at the World Trade Center were destroyed and children who lost their parents in that tragedy have grown into adults. We have lived through a pandemic, continued racial strife, the dot.com and housing bubbles, hipster renaissance, fidget spinners, Tim Tebow, ice bucket challenges, Tide pod lunacy, and a whole host of fads and trends which have fortunately passed on (I could write an entire article about wasted lives and Farmville, but I will refrain). Needless to say, a lot of water has gone under the bridge while Marsha has patiently waited for me to submit my musings. Eleven columns a year for twenty-two years is 242 columns. Sadly, I ran out of good ideas after about the third submission and so I’ve been forced to write about anything that happened to cross my mind on a particular day including Tennessee athletics, taking depositions, lawyers in movies, presidential trivia, political ideology, proposing to my December 2021

wife, election of judges, raising children, the weather, hunting wild boar, negotiating with the devil, the NCAA tournament, answering discovery, and writing utensils. I even once wrote an article about my feet . . . and the KBA published it (which tells you how desperate they were for content back then). If it seemed at times like my choice of topic was haphazard and lacking any cohesive plan, that impression was correct. I started writing for DICTA for fun, at the request of Angelia Nystrom (then Morie). She called me one day and said she needed a filler column. It had to be around 1000 words, did not have to be law related, but should be funny. My article was meant to be a palate cleanser, jammed in between the more meaningful and informative articles. Twenty-two years later, the publication has grown to the point that my stream of consciousness rambling no longer feels necessary. Have you looked at DICTA lately? I don’t know if anyone recalls what it looked like twenty-two years ago, but I assure you it is nothing like what it looks like today. Consisting primarily of a couple of informational articles and a series of notices regarding upcoming KBA events, the publication could not have been more than eight pages long. It wasn’t printed on the mimeograph and stapled together, but it wasn’t far from that. Today, I challenge you to find an organization of a similar size, in any profession, that publishes a higher quality magazine with as many informative and entertaining pieces as DICTA. Being there for the growth of this publication has been rewarding in and of itself. Thank you to Marsha, the KBA staff and the many editors and contributors who have given their time and energy to DICTA. You have given our bar a special gift. You have given me a gift as well. Writing for DICTA has been a true blessing. I can’t tell you the number of people I have met, and good friends and acquaintances I have in the bar, that started simply from someone saying “hey, I read what you wrote in DICTA last month.” Writing this column taught me the importance of getting involved at any level with professional organizations and creating connections within the community. I predict that my legal career would have been much shorter and far less rewarding, were it not for this stupid little column. So, this is my last Long Winded column. It wasn’t particularly funny (of course that can be said for the vast majority of the columns I write). Perhaps it was a bit too self-aggrandizing. I feel a little sheepish about writing a column about my own efforts to write a column. Still, I hope you will forgive the “Jason-centric” musings. I thought it was important, at least to me, to have some closure and to say “thank you” to Marsha, the KBA staff, my partners over the years, and most importantly my wife, for allowing me the time and opportunity to write for DICTA. Thank you also to those still willing to read this column. Perhaps now you can dedicate those two minutes a month to something more productive and worthwhile. Cheers.

DICTA

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

PRO BONO SPOTLIGHT By: Caitlin Torney Pro Bono Project Attorney for Legal Aid of East Tennessee

2021 FORGING JUSTICE PRO BONO CELEBRATION AWARD WINNERS Legal Aid of East Tennessee is honored to present the 2021 Pro Bono Award Winners: Pro Bono Student of the Year: Nathan Wallace A graduate of East Tennessee State University in Johnson City with a bachelors in Criminal Justice and Criminology, Nathan Wallace is a 3L at Lincoln Memorial Duncan School of Law and active member of the Tennessee Army National Guard. Nathan clerked for Legal Aid of East Tennessee this summer and fall. As a summer law clerk, Nathan’s enthusiasm for access to justice manifested itself in his commitment to our clients and his willingness to go above and beyond to help support our program. At one point this summer, he even drove to a satellite office in Chattanooga to support our Family Justice Center Team with a heavy caseload. When the summer ended Nathan stayed on at Legal Aid to head a law student staffed project to gather information for a statewide data collection effort. He continues to serve Legal Aid clients by volunteering with the will signing program and helping at the Veterans Clinic. We are excited for Nathan to continue his work with us in the Spring of 2022 when he will take over as Pro Bono Project Law Clerk. I expect many of you will get to know him better through his work staffing cases and the Forging Justice event. When not working, Nathan enjoys cooking, drink mixing, and maintaining a flower garden of indigenous plants. Pro Bono Attorney of the Year: J. Spencer Fair It is our pleasure to recognize J. Spencer Fair as 2021 Pro Bono Attorney of the Year Award for his role as founder and coordinating attorney for the Monthly Veterans Legal Advice Clinic. Since 2016, Spencer has been the leader of this essential joint clinic with the Knoxville Barristers, the Young Lawyers Division of the Knoxville Bar Association (KBA), KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, Knox County Public Defender’s Community Law Office, the University of Tennessee College of Law, Lincoln Memorial University- Duncan School of Law, and the local VA office. Spencer helms the outreach efforts to spread the word to eligible veterans and diligently attends the monthly clinics. Pro Bono Community Partner of the Year: YWCA Knoxville and the Tennessee Valley The YWCA Knoxville and the Tennessee Valley is a fixture in the Knoxville area, serving women and their families across our region of East Tennessee since 1899. They have a long-standing commitment to

improving the lives of women and girls and enhancing the community. In its current incarnation, YWCA Knoxville and the Tennessee Valley offers a wide range of services from advocacy for victims of domestic violence, to housing, and afterschool care. The YWCA and Legal Aid of East Tennessee have long worked together to help address the legal needs of survivors of domestic violence through a referral program Since 2020, LAET and the YWCA have partnered to hold a General Legal Advice Clinic for Victims of Domestic Violence during Domestic Violence Victim Awareness month in October With the help of multilingual victim advocates, we have served seventeen clients through these clinics and look forward to continuing this tradition in years to come. Pro Bono Law Firm of the Year: Sobieski, Messer & Elledge The law firm of Sobieski, Messer & Elledge is a great supporter of Legal Aid of East Tennessee and an important partner of the Pro Bono Project. We are excited to highlight the commitment of smaller local firms who give so much time to assist residents. In the past three years alone, attorneys at Sobieski, Messer & Elledge has taken thirteen family law cases for pro bono representation and as a firm has been a steadfast financial supporter of our efforts. Moreover, firm attorney Caitlin Elledge has generously provided feedback on how to refine our conservatorship placement program. We are so pleased to recognize Sobieski, Messer, & Elledge as our 2021 Forging Justice Pro Bono Firm of the Year. Donald F. Paine Memorial Pro Bono Hall of Fame: Judge Gary Wade It is an honor to invite former Chief Justice Gary Wade to join the ranks of the Donald F. Paine Memorial Pro Bono Hall of Fame in recognition of his dedication to the citizens of Tennessee and his longstanding support of Legal Aid of East Tennessee. Justice Wade is the embodiment of public service in Tennessee and has been a pillar in East Tennessee for over 50 years. Born and raised in Sevierville, Justice Wade has always had a special place in his heart for access to justice in East Tennessee. After earning his law degree at the University of Tennessee he went on to public service as Mayor of his hometown Sevierville and later city attorney for Pigeon Forge. He was subsequently appointed to the Tennessee Court of Criminal Appeals where he remained through many reelections until his appointment to the Tennessee Supreme Court. Justice Wade was retained by the voters of Tennessee in two subsequent elections, later serving as Chief Justice. Although he retired from the bench in 2015, he continued to be a presence in the legal community as Dean of Lincoln Memorial University’s Duncan School of Law. His career, as well as a list of awards and associations, which are far too long to list, are clear evidence of his commitment to access to justice. He has been an essential and staunch supporter of LAET and it is because of his advocacy and support that Legal Aid of East Tennessee currently resides adjacent to Lincoln Memorial Duncan School of Law.

DICTA

December 2021

TELL ME A STORY By: Rameen Nasrollahi

Egerton, McAfee, Armistead & Davis

PREPARED FOR A CAREER IN THE LAW I was told from a very early age that I should be a lawyer. Not by other lawyers, of course, and it was not an aspirational observation. I liked to be right, and I liked to let everybody else know when I thought they were wrong. I guess that was the opinion about lawyers held by those around me. I still like to be right, but, fortunately, I’ve learned that telling everyone else that they are wrong all the time is not the best way to go through life. There are infinite opinions about lawyers and what makes a good one, but enough people saw it in me at a young age. Of course, at the time, I told them they were wrong. Certainly, there are plenty of people that led me to where I am now: the high school English teachers who wanted me to pay special attention to the ambiguities inherent in the English language, the college English professors who made sure I knew when and where to use all of my commas (fortunately, this column isn’t an argument regarding the Oxford comma), and the attorneys I met after graduating from college who encouraged me to take the steps to go to law school. I graduated from Rhodes College in 2008, and quickly learned that the combination of my failure to plan for postgraduate life, choice of degree, and lack of work experience weren’t doing me any favors in the middle of a recession. I made a quick “transition,” if that’s the right word, from college graduate, to working the University of Tennessee’s Department of Forestry, Wildlife and Fisheries, to unemployed, to working at Cornerstone of Recovery in Blount County in the span of about six months. I was neither prepared nor qualified to work with those seeking help for addiction: the disease had not had a major impact on my life or family, but I learned very quickly that addiction is a real, devastating disease that affects the addict and everyone around them. I didn’t know it, but that job was preparing me for a career in law. I had to learn how to listen to clients, to know when clients and others are not telling you the whole story, how to navigate the opaque nature of insurance, and, most importantly, how to give clients advice in a way they will be willing to listen to and accept. And believe me, sometimes the advice I gave in that context would not seem kind. After gaining some invaluable experience in two different departments, I decided I wanted to seek a career where I could focus on writing. In perhaps one the most cliched stories of all, at least for those of us who graduated from small liberal arts schools in the late 2000s, I decided to go back seek a graduate degree. The choice then became whether to pursue a Ph.D. or a law degree. Ultimately, at the encouragement of some of my co-workers, I pursued law. December 2021

Having made a choice in career, I had two goals: study abroad while in school and be employed by the time I passed the bar. I succeeded in the first goal easily and was helped along in the second goal. I enrolled in a study program in China for the first half of my first summer and planned to take the second half of the summer off, reasoning (correctly) that it would probably be my last true summer break. Despite my worst intentions, Professor Judy Cornett informed me that she wanted me to intern for the Tennessee Court of Appeals, and I realized the sensible thing to do would be to take the opportunity. I spent the second half of that summer researching and drafting an appellate opinion, and I was hooked. Having finally found an employment goal to pursue, the process felt natural. I pursued classes I felt would bolster my abilities as a judicial clerk. I was able to get an internship with then-Judge Bivins on the Court of Criminal Appeals thanks to Penny White, and interned with the Criminal Court for Knox County my 3L year. Then I plain lucked out: just as I was graduating, several new judges were taking the bench on both the Tennessee Court of Appeals and Tennessee Court of Criminal Appeals. An application campaign followed that summer, and I ultimately had the good fortune to clerk in Memphis for Judge Kenny Armstrong on the Court of Appeals for two years. Judge Armstrong’s insight into the litigation process was invaluable, and he allowed me to work on cases that touched on areas of the law I found interesting. Despite the excellent experience, I made the very difficult decision to leave Judge Armstrong’s chambers after two years. I did not have a real desire to leave; rather, I decided that I had gone to school to practice law, and I didn’t want ten years to go by without actually doing so. Again, after the basic decision was made, timing and happenstance laid out the path: one of my co-clerks informed me that she knew of a Knoxville firm that was looking to hire a new associate. I submitted my resume immediately, returned home, and began working at Egerton, McAfee, Armistead & Davis as a litigation associate. I spent roughly a year and half primarily working on one copyright case in federal court. After that case concluded, Egerton McAfee has supported my branching out into all types of litigation. I would not say that I have ever had the best plan to get from where I was to where I wanted to be. But I have learned that, sometimes, once you commit to a course of action, the work needed and doors to be opened will become clear. And I guess, just this once, I have to admit that everyone else was right, and I was wrong, because they did not predict the path, but they did predict the destination.

DICTA

Prsrt Std US POSTAGE

P.O. Box 2027 Knoxville, TN 37901

PAID

KNOXVILLE, TN PERMIT NO. 3 0 9

Barristers Annual Charity Golf Tournament – October 25

Thanks to the generous support of participants and sponsors, $3,300 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 sponsors for their support. Platinum Sponsors LexisNexis Thomson Reuters Putting Green Sponsor Brown Professional Insurers Silver Sponsors Image Matters Hole Sponsors Brandon’s Awards & Engraving Brock|Shipe|Klenk Eldridge & Blakney FirstBank Gary Cobble Construction Hodges Doughty & Carson Kramer Rayson LLP Pitts & Lake PrintEdge Regions Private Wealth Management Swafford Insurance LLC Woolf, McClane, Bright, Allen & Carpenter, PLLC

CONGRATULATIONS TO OUR WINNERS!

Teams: 1st Place: Brock, Shipe & Klenk Luke Durham, Wade Orr, John Kizer, Matt Googe 2nd Place: Lacy, Price & Wagner Chris Cain, Jim Price, Tom Clark, Brad Dye 3rd Place: Bass Berry Jay Moneyhun, Mike Baisley, Sam Winston, Tre Mullins Closest to the hole: #4- Dasan Dix #8- Brad Dye #11- Jason Fisher #14- Jody Mullins Longest Drive: Tre Mullins Putting Contest: Phillip LaNasa

DICTA. December 2021

Articles inside

Pro Bono Project

Tell Me A Story

Long Winded

Your Monthly Constitutional

Bill & Phil Gadgets

Barrister Bites

Legal Myth Breakers

Boat Builders

Around the Bar

Wellbeing and Resilience in the Legal Profession: A Message of Hope for 2022

Barrister Bullets

Legal Update

Hello My Name Is

Schooled in Ethics

Building for the Future Advice on Succession Planning

What I Learned About Inclusion and Why It Matters

Well Read

Urban Legends

Management Counsel

President’s Message

Section Notices/Event Calendar

Attorney Profile

Practice Tips