Legal Update: What’s in a name? …depends on who signs it in Termination of Parental Rights cases . . . Page 11 Schooled in Ethics: Tennessee Supreme Court Addresses Accrual and Tolling of Legal Malpractice Claims . . . Page 21
A Monthly Publication of the Knoxville Bar Association | February 2018
DREAMERS, HIGHER EDUCATION, AND JAILHOUSE POLICY: IMMIGRATION ISSUES AT THE NATIONAL, STATE, AND LOCAL LEVELS
JUDICIAL NEWS
TIPS FROM MAGISTRATE JUDGE C. CLIFFORD SHIRLEY JR. In honor of Magistrate Judge C. Clifford Shirley Jr.’s retirement from U.S. District Court, we thought it was appropriate to reprint an excerpt from his remarks during the Federal Court Attorney Admission Ceremony on December 7, 2017.
Hard work can also make up for a lack of academic or intellectual shortcomings, and I’m proof of that fact. So strive for Excellence! Not just survival and seek to be significant not just successful. Third, take your “work” and your “responsibility for others” Seriously. But don’t take “yourself ’ seriously. Be humble - knowing you’ve been Graced to be who you are, where you are and doing what you do to be alive and to have a great mind. In every case, remember that but for certain circumstances you could be representing the “other side” or you could be the client (in need), so treat every client as you’d want to be treated and treat every attorney as you’d want to be treated. Fourth, be courteous to all attorneys you contact along the way. Not just merely “civil” but courteous, friendly and kind. Treat them like you’d want to be treated, even if they don’t reciprocate. You do it because of who you are not because of who they are; because people will notice and will comment; and because you never know which one may end up being a Judge. Fifth, never forget that what is just another “case” to “you” or just another “file” to you or a billing opportunity, is more often than not, your client’s only intersection or involvement with the legal system and with lawyers. Either way, their impression (what they feel and believe) about the legal system and lawyers (all of us) will in large measure be based on how “you act” and what you say during their case. And finally, never forget as a lawyer, you have the capacity and power to alter, affect and influence lives, which comes with the responsibility to use it “fairly, justly, and wisely.” And, if you do these things, you will not only be a success in Federal Court, you will be a success in your profession, and you will be a success in life. And, if you “excel” in them, perhaps someday you may be known as a Great Lawyer! Godspeed-Good Luck, and we look forward to seeing you in Court!
“Key to Success in Federal Court” Perhaps the easiest way to explain that is this: As you continue in your practice, you will come to know or hear about the “Great Lawyers” in your community. The “Legends of the Bar.” Those who enjoy the “Highest Reputations.” These are the ones - who have gone before you, who have set the bar the highest and the ones we still honor today. These lawyers come in all different types, sizes, gender, shapes and styles, but they’ve all achieved the same Hallmark: “The Respect and Confidence of their fellow attorneys and Judges.” And from my vantage point, they achieved that respect and confidence because they had a few “qualities” in common. Qualities I commend to you - as qualities I expect of lawyers in Federal Court - and qualities all lawyers should strive to emulate. First, be honest. Be honest “everyday” with “everyone.” Be known as a person of “integrity.” For without integrity, there will be no confidence in you and without confidence, there will be no respect. And as to your integrity, protect it; it takes years to earn but only a minute to lose. Your word simply must be your bond. Second, work hard and be prepared. Judges and lawyers respect those who are “most prepared,” and the legal community “knows” who works the hardest and is always the most prepared! Let that be you.
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DICTA
PLEASE JOIN US FOR A
nt e m e r i t e R ation Celebr in honor of
CHIEF UNITED STATES MAGISTRATE JUDGE C. CLIFFORD SHIRLEY, JR. FRIDAY, FEBRUARY 9, 2018 2:00 PM CEREMONIAL COURTROOM HOWARD BAKER JR U.S. COURTHOUSE RECEPTION TO FOLLOW Kindly RSVP at 865-329-4780
February 2018
In This Issue
Officers of the Knoxville Bar Association
Cover Story
President Keith H. Burroughs
President Elect Wynne du Mariau Caffey-Knight
Treasurer Hanson R. Tipton
Immediate Past President Amanda M. Busby
Secretary Cheryl G. Rice
KBA Board of Governors Charme P. Allen Jamie Ballinger-Holden E. Michael Brezina III Kathryn St. Clair Ellis
Stephen Ross Johnson Elizabeth K.B. Meadows Mary D. Miller Carrie S. O’Rear
T. Mitchell Panter M. Samantha Parris Robert E. Pryor Jr. Mikel A. Towe
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Dreamers, Higher Education, and Jailhouse Policy: Immigration Issues at the National, State, and Local Levels
5 9 11
President’s Message
Jonathan Guess Database Administrator
Lacey Dillon Programs Administrator
Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org
Tracy Chain LRIS Administrator
Adelyn Bryson LRIS & Membership Assistant
Volume 45, Issue 2
Dicta
DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association. All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Watson (522-6522).
Dicta is the official publication of the Knoxville Bar Association
Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Elizabeth B. Ford Joseph G. Jarret F. Regina Koho David E. Long
Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short
Managing Editor Marsha Watson KBA Executive Director
DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. February 2018
DICTA
Practice Tips
Tips on Pet Trusts
Legal Update
Drug Testing Policies, Procedures and Issues
Tennessee Supreme Court Addresses Accrual and Tolling of Legal Malpractice Claims
7 Tammy Sharpe CLE & Sections Coordinator
Why Diversity and Inclusivity Matter
21
Marsha S. Watson Executive Director
Critical Focus
What’s in a name? …depends on who signs it in Termination of Parental Rights cases
12
The Knoxville Bar Association Staff
February 2018
8 10 14 18 20
Management Counsel: Law Practice 101 Schooled in Ethics
Conventional Wisdom Attorney Profile
2018 Barristers President: Mitchell Panter
Outside My Office Window
Man’s Best Friend
Around the Bar
More on Ann Short’s Cussing
Hello My Name Is
Kayla Swiney
Walking the Walk
Personal Responsibility for Learning
Life & Law in Harmony
Five Ways to Really Unplug from Work
22
Of Local Lore and Lawyers
John Williams: Knoxville Lawyer, Soldier, and Statesman
Tennessee Theatre
Book Review: Devil in the Grove by Gilbert King
23 Of Thermometers and Thermostats Civilization 24 Hidden Knoxville Mighty Musical Monday at the 25 26 27 28
Well Read
Your Monthly Constitutional
Call Me Doc
Long Winded
That’s the Way the Cookie Crumbles
Bill & Phil’s Gadget of the Month
Bitcoin, Ether, Cryptocurrency and Such
Common Ground
4 6 19 29 30 31
Section Notices/Event Calendar Bar Hopping Barrister Bullets Bench & Bar In the News Pro Bono Project Last Word
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event
EVENT CALENDAR & SECTION NOTICES
Section Notices
calendar
There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. Alternative Dispute Resolution Section The ADR Section will be planning regular CLE throughout the year. If you have program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Bob Stivers (386-1630). Bankruptcy Law Section The Bankruptcy Section will meet quarterly. To have your name added to the section list, please contact the KBA office at 522-6522. If you have program topic or speaker suggestions, please contact the Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). The next clinic is scheduled for Saturday, February 3, 2018 from 9:30 a.m. to 12:00 p.m. at the Knox County Public Defender’s Community Law Office. If you would like to volunteer for next clinic, please sign up by clicking on February 3 on the event calendar at www.knoxbar.org. Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to get involved, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Headrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs: Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. For more information about the section, please contact Section Chairs LeAnn Mynatt (549-7000) or Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Ron Mills (215-2050). Juvenile Court & Child Justice Section Members of the KBA are invited to join the KBA’s Juvenile Court & Child Justice Section, formerly the Unmet Legal Needs of Children Committee. For information about the Section, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2016 will automatically be opted-in to the section. The goal of the section is to provide programming for new lawyers, including educational opportunities, social/ networking events, listserv, and e-community with a comprehensive file-sharing system. The section will allow attorneys to connect with other attorneys who may or may not be in the same practice area, but who are new to the legal field and facing similar experiences. For information about the Section, please contact Section Chairs Liz Anne Bowden (637-1980) or Sam Louderback (546-0500). Senior Section The KBA Senior Section meets quarterly. If you have suggestions for speakers, please contact Chair Wayne Kline at 292-2307. Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. To have your name added to the section list, please contact the KBA office at 522-6522.
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DICTA
February
n 3 Debt Relief Clinic n 5 ADR Section CLE n 6 Law Office Tech Committee Meeting n 8 Lunch & Learn n 8 Judicial Committee Meeting n 10 High School Mock Trial Competition n 12 Diversity in the Profession Committee Meeting n 13 Professionalism Committee Meeting n 14 Veterans Legal Advice Clinic n 16 Real Estate CLE n 21 Board of Governors Meeting n 21 Barristers Meeting n 22 Volunteer Breakfast n 24 High School Mock Trial Competition n 26 New Lawyers Section Event
March n 1
KBA & Barristers Happy Hour
n 2 Bankruptcy Extended CLE n 5 ADR Section CLE n 6 Law Office Tech Committee Meeting n 8 Lunch & Learn n 8 Judicial Committee Meeting n 13 Professionalism Committee Meeting n 14 Veterans Legal Advice Clinic n 14 Barristers Meeting n 16 Real Estate CLE n 19 Diversity in the Profession Committee Meeting n 20 KBF Board Meeting n 21 Board of Governors Meeting n 22 Volunteer Breakfast n 26 New Lawyers Section Event n 27 CLE Committee Meeting
Mark Your Calendar Law Practice Today Expo April 12 & 13, 2018
February 2018
PRESIDENT’S MESSAGE By: Keith H. Burroughs Egerton, McAfee, Armistead & Davis. P.C.
WHY DIVERSITY AND INCLUSIVITY MATTER As I mentioned last month, the focus of my message for February is the importance of diversity and inclusivity to our profession. Everyday, we are connected to people all over the world from different regions, cultures, and walks of life through television, social media and the internet. This world of diverse individuals are our prospective clients, yet we are not prepared to provide an equally diverse profession in return. Statistics for Knox County from 2015 indicate that over 12% of the residents of Knox County identify as other than Caucasian. Black and African American citizens are the highest percentage of that group. However, the complexion of the Knoxville Bar Association is far paler than the community in which we live and serve as lawyers. Each year, the U. T. College of Law and LMU Duncan School of Law turn out several dozen graduates from diverse backgrounds, cultures, races, ethnicity, and religions that are different than the vast majority of current members of the Knoxville Bar Association. However, our Bar has had an extremely difficult time attracting and retaining those men and women to stay and practice in Knoxville. Despite considerable efforts by many law firms to recruit minority candidates, most leave after law school for larger cities and higher salaries. One way to combat this phenomenon may be to introduce candidates to cost of living comparison calculators to assist with determining whether a higher salary translates into more net buying power. One such calculator can be found at https://www.bankrate.com/ calculators/savings/moving-cost-of-living-calculator.aspx. During 2017, I taught a seminar at both law schools entitled “Economics of Practicing Law,” and I used this website to illustrate that a significantly higher salary is required in almost all cities larger than Knoxville to maintain an equivalent lifestyle. Based on the reaction of the students, none had given consideration to this factor in determining where to practice law. At 88% of the national average cost of living, Knoxville is a bargain. Add to that the limited commute times and the multiple natural recreational opportunities available in the complex of lakes, tributaries, and local, state, and national parks, Knoxville is a wonderful place to live, practice law and raise a family. Another factor at work may be implicit or unconscious bias. It refers to the attitudes and stereotypes that affect our understanding, actions, and decisions in an unconscious manner. These biases, which encompass both favorable and unfavorable assessments, are activated involuntarily and without an individual’s awareness or intentional control. These biases are different from known biases that individuals may choose to conceal for purposes of social or political correctness. Rather, implicit biases are not regularly assessable through introspection. The implicit associations we harbor in our subconscious cause us to have feelings and attitudes about other people based on characteristics such as race, ethnicity, age, and appearance. These associations develop over the course of a lifetime beginning at a very early age through exposure to direct and indirect messages. Taking steps to evaluate these implicit biases and effectively eliminate them from our decision-making and recruitment processes will undoubtedly change the culture and environment of our bar to be a more inviting and inclusive place for these professionals to live and practice. Communities that embrace and engage with people of different backgrounds, cultures, heritages, and belief systems are more likely to February 2018
exchange ideas that have theretofore not been considered and possibly change the way that we evaluate certain perspectives. It is not only good for our profession and our community as a whole to have greater diversity and inclusivity in our Bar, but it is crucial for enhancing the public’s confidence in the judicial system and removing barriers to justice. It is much more likely that a prospective client will be more attracted to and feel comfortable with a lawyer that looks like, sounds like or has common cultural experiences as the prospective client than one who does not share those characteristics. When dealing with matters serious enough to warrant counsel, potential clients want someone who they feel comfortable with and to whom they can relate. This is especially true for first time consumers of legal services. It is a way to combat the “us against them” mentality that has evolved between the legal profession and the community at large. Having a more diverse bar opens up new markets of potential legal services consumers that are likely untapped because existing practitioners do not currently have a connection with those segments of our community. The changes necessary to make the KBA a more diverse and inclusive bar will not be achieved by good intentions alone. To achieve meaningful, measurable, and lasting progress toward greater inclusion of minority legal talent, it is essential that we not only commit philosophically to those goals, but also commit resources, individually and collectively, towards activities that we as a group believe will have a positive impact. We also need to embrace inclusion of diversity in its many facets including, without limitation, race, ethnicity, gender, religion, sexual orientation, generational differences, and differently-abled individuals. In an effort to be more effective in this regard, The Diversity in the Profession Committee, Co-chaired by Judge Deborah Stevens and Amanda Morris, have been actively working to educate and influence the importance of diversity and inclusivity in our profession to enhance the quality of legal services and to return a higher level of trust in our profession by the community at large. In recent years, the Committee has revamped the annual Minority Law Student Reception from being merely a meet and greet session to a CLE program followed by an hourlong reception where practicing lawyers, judges and law students have meaningful discussions and interactions. On October 3, 2017, the KBA, in conjunction with the U.T. College of Law and LMU Duncan School of Law, held a Minority Law Student Program entitled “Expanding Horizons, Establishing Connections.” The attendance nearly doubled from the prior year and has now outgrown the confines of the Square Room, with 64 law students and practicing lawyers from over 21 law firms. 45 lawyers committed to serve in the “Buddy Match” program to communicate with their assigned law students prior to the event and to make introductions of their “buddy” law students to fellow lawyers during the reception following the program. The Committee is actively working on this and similar projects to continue to expand the diversity of our Bar. During 2018 and beyond, it is my hope that the members of the KBA consider actively engaging with and employing qualified candidates from a more diverse population and implement processes and strategies to that end to promote a more diverse population of lawyers practicing in our Bar.
DICTA
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BAR HOPPING By: Brady Cody Lewis Thomason
New for 2018, Bar Hopping will highlight one of the many beautiful courthouses around the State. The trick? It is up to you to figure out where. We had 5 total winners in our first contest. Congratulations to L. Lee Kull, J. Chadwick Hatmaker, Nicholas Armes, Heather Anderson, and Preston “The Machine� Hawkins for correctly identifying the Blount County Justice Center. This month, we feature a courthouse a little more off the beaten path. Need a hint? Well how do you like them apples? Think you can name this courthouse? Email me at bcody@ lewisthomason.com with your answer. Correct answers will receive a shout-out in the next issue of Dicta. Check back next week for the reveal and a list of the big winners. Have a photo that you would like to submit? Send me an email and have it featured in an upcoming issue.
You are cordially invited to the official investiture and celebration reception for
J. Douglas Overbey United States Attorney Eastern District of Tennessee
Friday, February 16, 2018 at 2:30 p.m. at the U.S. District Court 800 Market Square in the Ceremonial Courtroom located on the 4th floor. Please RSVP by Monday, February 12, 2018 to jeanne.porter@usdoj.gov or call 865-225-1711.
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DICTA
February 2018
AT TO R N E Y P R O F I L E By: Courtney Houpt ICF International
2018 BARRISTERS PRESIDENT: MITCHELL PANTER My first memory of Mitchell comes from our very first day of Civil Procedure I with Judy Cornett at the UT College of Law. Professor Cornett was calling the roll, and she visibly paused when she reached Mitchell’s last name. We could all see the thought rolling through her mind: Could his last name really be Panter, like a pair of pants? With what I would come to recognize as his characteristic good-naturedness, Mitchell told Professor Cornett, “Don’t be shy, pronounce it how you want to. I know you want to use that long A!” The class laughed, and that’s how I, along with section 2 of UT Law’s Class of 2013 first became acquainted with my future husband Mitchell Panter (pronounced, for whatever reason, like “painter”). Mitchell hails from McMinnville, Tennessee – pronounced MACKMinnville, as those of you who’ve spent any time around Mitchell surely know by now. Mitchell is a proud graduate of Tennessee Tech, where he received his bachelor’s degree in psychology. He specifically focused his studies on social psychology. After graduating a semester early from Tech with a perfect 4.0 grade point average, Mitchell attended the UT College of Law. Though law is not Mitchell’s first choice career – R&B singer is his first choice and NBA player is his second choice – Mitchell still availed himself of every opportunity to prepare for his future practice while in law school. He served as a research assistant to Professor Judy Cornett, was a member of the Prince Evidence Moot Court Team, and, in his 2L year, competed for (and won) the coveted Advocate’s Prize. Mitchell returned to McMinnville after graduating with his law degree in December 2012 (again, a semester early), and he briefly practiced at a local plaintiff ’s firm there before accepting a clerkship with then-Justice Janice Holder of the Tennessee Supreme Court in July of 2013. Mitchell moved to Memphis and clerked for Justice Holder until her retirement. Mitchell absolutely loved both living in Memphis and working for Justice Holder, but he ultimately decided – with lots of persuasion from yours truly – to return to Knoxville upon completion of his clerkship. Mitchell is a general civil litigator at Paine Bickers, where his cases range from commercial litigation to products liability and everything in between. He took on a new role last year: Adjunct Professor at the UT College of Law, where he teaches a Pretrial Litigation class. Mitchell is in his third year as a member of the board for the East Tennessee Technology Access Center (ETTAC), a nonprofit organization that connects individuals with disabilities to adaptive technology tools and services to enable them to live more independently. ETTAC supplies everything from medical devices to computer classes to adaptable toys, and Mitchell is thrilled to be serving as the organization’s Vice President this year. In what little spare time he has, Mitchell likes spending time with our two dogs (and, begrudgingly, the cat that I contributed to our household), watching UT or Titans football games, and cycling, either in spin class or on the road. When I think about that first day of Civil Procedure I and Mitchell’s grand introduction to Professor Cornett, I think it perfectly February 2018
sums up Mitchell’s personality and approach to life—Mitchell is the most “himself ” person I’ve ever met. He is as equally comfortable discussing the Real Housewives of Atlanta as he is debating the latest Tennessee Supreme Court opinion. He is at home both in front of a jury and behind a karaoke microphone. He would gladly eat chicken tenders for every meal, but he also loves French wine. Mitchell knows what he likes and what he’s good at, and he wholeheartedly embraces those things. And if he doesn’t know whether he likes something? He jumps in headfirst to test it out. Mitchell has been active in Barristers for a number of years. He has chaired the Athletics Committee and served as both secretary and Vice President. Mitchell is excited and honored to now serve as Barristers President for 2018, and I know that he will bring his sense of enthusiasm and dedication to this role.
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OUTSIDE MY OFFICE WINDOW By: Robert E. Pryor, Pryor, Priest & Harber robertpryorjr.blogspot.com
Jr.
MAN’S BEST FRIEND I spent a great deal of time in my teenage years trying to figure out what I wanted as an adult. What was it going to take to make me feel like a success? After a great deal of consideration I came to the conclusion that two things would be the measure of my success in life - Having a second refrigerator in my garage and a hot tub on my porch. Who could want for more? In the Spring of 2009, after having owned two nice refrigerators for several years, I put in a hot tub on my deck. I didn’t skimp either. Multiple jets and several lighting options put me in the game. Richard Branson and Bill Gates didn’t have anything on me. I could now sit in the warm water and look out on my farm, not another house in sight, and know that I’d finally fulfilled the dreams of my youth. Life was good…for exactly two weeks. Some horrible person at Christian Academy of Knoxville announced that a litter of British Creme Golden Retrievers had been born, and that they would be giving - yes, giving - the puppies away. I already had a dog. A red Golden Retriever - Hope - who was the joy of our lives. My four kids and wife adored Hope. We had gone through no less than 3 dogs trying to find THE ONE. Hope was it. At four years of age, and no longer a puppy, she was adopted from the East Tennessee Golden Rescue. Perfect. Beautiful. Nancy and I, like all married couples, reached one of those pacts that is essential to a functioning marriage - NO PUPPIES ever again.
Nancy called me at work. She began to explain the puppy situation brewing at CAK. Anticipating where it was headed and before she even got to the end of the first sentence, I said “Hell No! Remember, we…” Then she said, “the puppy is already here.” It was over. The kids were playing with it and had already named it. Never let them name it. “Sophie” was in my life. She was the cutest puppy that ever lived. But, she was a puppy. She chewed up furniture, blankets and pillows. On one fateful evening, after she’d been house trained and earned our trust, we let her outside. She and Hope would always bark when they wanted back in. Sophie was out there longer than usual. When I opened the door to let her in, she was standing on the hot tub cover, a styrofoam monstrosity that was essential to the operation of the hot tub. She turned to me revealing styrofoam all over her face, the deck, and the yard. It looked as if it had been snowing for an hour. She’d torn straight through the cover, kicking up insulation all over the yard. The kids laughed. Nancy laughed. I laughed. Then I called to order a replacement. $795.
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I drove my pick-up down to the hot tub store and picked up the new cover. I told the two guys behind the counter why it was I was buying another cover. They had a good chuckle. I paid the price and returned home to cover my beloved spa, properly scolded the puppy and instructed my family to watch and prevent. In less than 24 hours I opened the door to what looked like the Ober Gatlinburg snow-making machines in action. Foam was flying over the side of the deck and into the trees as Sophie dug down into the middle of the spa as if beef jerky was the treasure beneath. Not only had she destroyed two covers, and chewed multiple pieces of furniture, she also began digging beneath our fence and getting into the field where we kept our horses. So, naturally, in addition to ordering up a third hot tub cover, my wife ordered an invisible fence to go along with our…REAL FENCE. In a family meeting that shall never be forgotten I announced the impending death or adoption placement of our puppy should another hot tub cover be destroyed. In response, my beautiful wife purchased a fake rock ($250) that emitted a silent shock from the invisible fence to place on the new hot tub cover. In theory, when Sophie, who evidently had an inherited issue with hot tubs, turned her attention to its destruction, the rock would emit a low frequency electrical current and shock her. I made it clear that this was the last chance. Tom and John, the guys at the hot tub store, who I now knew really well, got a chuckle when I walked in. “Man, you’re depleting our supply of covers!” they joked. Two days later, after a full day of depositions, I walked into the house. Nancy was reading the paper. All four kids were sitting on the couch. The girls were crying. Sophie was seated in the middle of the room, smiling. I swear she was smiling, a piece of styrofoam dangling from the corner of her mouth. I immediately turned to look on the deck where it appeared as though a snow man had been hit by a dump truck. The invisible-fence rock was on the bottom of the hot tub where it had fallen through as my dog dug beneath where it had prominently sat, having failed in the only function for which it was designed. Before I could say a word, my baby girl, Shelby, exploded “Please don’t get rid of her!” I simply took a seat. I refused to buy another cover. I never got back in it. The “free” puppy that, after invisible fencing, hot tub covers, and the rock, cost me $5,000.00 in the first two weeks of her time with us is now 8. Hope has gone on to her glory, but Sophie rests beside me as I write these words, both of us mourning the end of Christmas and the departure of girls turned to young women. We reassure each other they’ll return and often share a laugh about the time she destroyed my dream. She has been worth every dime.
DICTA
February 2018
PRACTICE TIPS By: Esther Roberts Global Intellectual Property Asset Management, PLLC
TIPS ON PET TRUSTS As society evolves, our perspective on animal ownership is evolving, as well. In the past, animals were typically regarding as “property” with a job to do: dogs guarded livestock, cats kept rodent populations under control, and horses pulled wagons or farm machinery. While some animals still fill these roles in modern times, the vast majority of animal ownership in the United States is now for “pet” purposes. Indeed, even species that are considered food sources – e.g., cattle and pigs – are now being “designer bred” to provide diminutive versions of these animals to be used as indoor pets.1 According to the American Veterinary Medical Association, the human-animal bond is “a mutually beneficial and dynamic relationship between people and animals that . . . includes . . . emotional, psychological, and physical interactions of people, animals, and the environment.”2 Numerous studies indicate that humans live longer, happier, healthier lives when they have regular interaction with animals.3 The pet industry in the United States is big business. According to the American Pet Products Association, last year consumers spent over sixty-six billion dollars on pet products.4 This included about $28 billion for food, $30 billion for supplies and veterinary care, and almost $6 billion dollars for grooming and boarding. So, with all this puppy love, responsible owners are starting to ask, “what happens to my pet if something happens to me?” A pet trust may be the best answer to this question. A pet trust empowers the pet’s owner to provide resources and directives for the pet’s care. It is advisable to have at least two persons involved in the administration of the pet trust, including a trustee who handles the financial resources dedicated to the pet’s care, and a caregiver who provides or manages the actual care of the animal. This separation precludes any conflict of interest. The trustee can comply with all the fiduciary requirements of trust management and maintain the authority to approve all expenditures, review the care and condition of the pet, and, if necessary, replace the caregiver. The caregiver is free to focus on providing the best quality care for the pet. It is wise to encourage the grantor to designate a primary and secondary trustee and a primary and secondary caregiver. In some instances, numerous caregivers must be specified. For example, a grantor may have three dogs and two cats. A family member is willing to serve as caregiver for the dogs but is allergic to cats, thus a second caregiver must be secured to care for the cats. Pet trusts can be very specific, including such things as brand of food provided, level of care provided, and related matters. Here are a few examples. The owner may specify almost anything within reason, such as number of times each day the animal is groomed, interacted with, given structured play time, and what other animals the pet may interact with, e.g., “Fluffy may go to any enclosed dog park but may not enter if a dog larger than 50 pounds is present;” “Mittens likes to share space with Stripes but should be kept separated from Tux at all times.” “So long as a licensed veterinarian has approved his overall health and fitness to continue being used as a riding horse, Charlie may be ridden by anyone approved by the caregiver, so long as the rider’s weight does not exceed 250 pounds.” “Sally is to be turned out daily for exercise but she is never to be ridden again by anyone for any purposes whatsoever.” Pet trusts may also specify the types of enclosures appropriate to February 2018
one’s pets. “Grace must be kept in no less than one acre of open field, with secure fencing appropriate for horses, with continuous access to clean water and a covered shelter. Barbed wire fencing and any fencing with openings in excess of 2” x 4” are expressly prohibited. No more than one other companion horse may reside in the same enclosure with Grace at any time.” A pet trust may mandate health care, as well, from how many times per year the pet must see a licensed veterinarian, to specific procedures to be performed or prohibited. Some examples: “My grey parrot, Clyde, shall be taken to a licensed veterinarian at least four times per year to have his beak and talons filed.” “For all intact male (a.k.a. “colt”) horses in my herd, whether living at the time of my death or born thereafter to one of my mares: whenever a colt reaches the age of six months old, said colt is to be castrated as soon as possible by a licensed veterinarian using processes and procedures approved by the American Veterinary Medical Association (AVMA).” “If Rex develops any injury or illness such that said injury or illness will likely result in death, as determined by two licensed veterinarians, Rex shall be humanely euthanized.” For especially long-lived pets, such as tortoises and birds (some of whom have lifespans close to 100 years), some owners provide a shortterm trust with an adoptive caregiver. The trust could be established for 12-24 months to make sure the caregiver and the pet form a strong bond. The trust then ends with the caregiver becoming the pet’s new owner. Note, it is possible and appropriate to provide funds to pay the caregiver. Upon the death of the pet and, thus, the trust’s end, it may be wise to designate a preferred nonprofit entity to take the remaining trust funds as residual beneficiary, to avoid inadvertently providing a negative incentive to the caregiver to artificially shorten the life of the pet. Appropriate, regular monitoring of the pet is vital to assure the caregiver is providing adequate care for the pet. Pet trusts allow humans to enjoy the benefits of pet ownership throughout the human’s lifetime and provide for care of the pet until the end of the pet’s life. See http://americanminipigassociation.com/ and http://honesttopaws.com/mini-cows/. See https://www.avma.org/KB/Resources/Reference/human-animal-bond/Pages/ Human-Animal-Bond-AVMA.aspx 3 See https://www.huffingtonpost.com/berkeley-wellness/can-pets-help-you-live-longerand-happier_b_8521330.html. 4 See http://www.americanpetproducts.org/press_industrytrends.asp. 1 2
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AROUND THE BAR By: Mark Stephens District Public Defender
MORE ON ANN SHORT’S CUSSING I’ve always liked Ann Short. And I like her even more after learning from her Time Out, Cussing column (DICTA, October 2017) that Ann’s a “cusser”. She wrote that cussing “comes natural to her.” Well me too, Ann. I was raised on “cussing.” I blame it on my upbringing … born and raised in a blue collar Catholic family (and community), I grew up with profanity as a regular part of our vocabulary. And that was from my grade school peers. Of course, all the parents cussed. I’m pretty sure cussing is an essential part of Catholicism. The vernacular of rogues is part of every card game, sporting event, prize fight, and golf game that makes up the whole K of C calendar of events. Cussing is to beer drinking and smoking cigars, what peanut butter is to jelly. So, you can imagine how happy I was to learn from Ms. Ann (true or not) that cussing helps one cope with stress, raises pain tolerance, and increases strength and stamina. Because I cuss, I’m told I “must” be more intelligent … and honest! I’ll be damned. And I think those things must be true. Exhibit A: my wife - the daughter of a Church of God minister - is the toughest, strongest, most intelligent and honest person I know. And you should hear her mouth … OMFG! Recently, I experienced a bit of an epiphany while meeting with a client in jail who I had been representing for nearly two years. Trial was fast approaching. There were a couple of different defense strategies we could have employed. We had long ago settled on one and had been preparing for months … no actually, years. As usual, the closer we got to trial, the more the client’s (and my) anxiety increased. And in these last few weeks before trial the tension and stress between lawyer and client was ever-present - barely below the surface. Just a few weeks from trial, my client thought it might be a good idea for us to change our strategy. “Are you f*cking kidding me?!” I asked. “What in the &%#!+*^ are you #&^% thinking?” I politely inquired. My client looked at me, aghast. I’m still not sure I fully understand all that he was conveying with that look. But I’m pretty sure I saw disappointment, lost confidence, maybe disgust. And then he said something that stuck with me. “Why are you talking like that? That’s beneath a man of your stature.” No one has ever accused me of being “a man of stature.” Though I know I have no prominence or import, to that client, I did. He believed that he had a lawyer representing him. A professional. A man of prominence. Instead what he saw in that moment was that he’d in fact been appointed a “public pretender.” I had exposed my inadequacies. And what I had revealed in those few minutes was suddenly more important than anything I had done or said in the previous two years. I had affirmed what every defendant who must rely on court-appointed counsel fears: that public defenders aren’t “real” lawyers. Not and talk like that they aren’t. And I had, in a way, betrayed what every committed public defender fights tirelessly to dispel, this notion that we are second
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class lawyers. That we are “only” public defenders because we can’t make it as a real lawyer. That we should even stand down in the presence of “real lawyers.” In that moment, I had revealed to my client that his public defender had no clothes. And I was ashamed of myself. I conveniently neglected to point out that in Ann’s article, she confessed to “situational offending.” She offered context. Ann Short is that prominent professional my client could only hope to have representing him. Instead he was saddled with Mr. Foul-mouth. A man who was playing down to stereotypes instead of up to expectation and hopes. I’ve been a lawyer for 37 years … a public defender for 27. And even today, I’m amazed at how much my clients teach me. Maybe I’ll learn from this experience that if I want my clients to look at me as a “real” lawyer, I need to start acting like one.
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February 2018
L E G A L U P DAT E By:
WHAT’S IN A NAME? …DEPENDS ON WHO SIGNS IT IN TERMINATION OF PARENTAL RIGHTS CASES On July 1, 2016, significant changes to adoption and termination of parental rights laws went into effect in Tennessee.1 Prior to their enactment, proposals were described to committee members as “correcting housekeeping errors” and mere “clarification.”2 Proponents assured legislators that the bill would not “make a fundamental shift in adoption policy,” but merely clarify the existing law.3 As expected, Tennessee lawmakers adopted this “housekeeping” with broad support.4 Although one proponent acknowledged that some amendments were important,5 many months passed before practitioners and the judiciary learned how these changes would impact juvenile law cases. There were several amendments, aptly described as both “mundane and monumental.”6 This article focuses on the two affecting signature requirements in termination of parental rights cases. Suffice to say, most changes were designed to make terminating parental rights easier, quicker and cheaper when children are potential candidates for adoption. The first amendment relevant to signatures required that “the response or answer to a petition for termination of parental rights shall be signed by the respondent personally, sworn to and verified, and filed with the clerk of the court.”7 The purpose behind this provision was stated as follows: “[B]irth parents’ answers to the petition [to terminate parental rights] are often general and not truthful. Requiring sworn answers may cause them to be taken more seriously and allows more serious consequences for dishonest responses that are revealed at trial.”8 Although an answer was always required to avoid a default judgment,9 a court is not permitted to terminate a parent’s rights based upon the sworn petition alone.10 Proof must be presented establishing the legal grounds for termination as well as the best interests of the child.11 It is not clear what remedy, if any, will be leveled against parents who fail to satisfy the new procedural requirement. Given the fundamental right at risk for the parent, an answer not meeting the criteria will likely be given an opportunity to amend. Parents and their attorneys face the danger that a verified answer could incriminate the parent. The stakes are higher than the consequences for dishonest responses, as contemplated in the law’s introduction. Petitions usually involve allegations of misconduct that, if true, could constitute a crime. While we should certainly counsel clients about the consequences of perjury, we must also advise them that invoking the Fifth Amendment right against self-incrimination may be in their best interests. Another substantial change in the law for practitioners states that “[a]ny notice of appeal filed in a termination of parental rights action shall be signed by the appellant.”12 Since every document filed in a civil proceeding must bear the signature of at least one attorney of record or a pro se party, and statutory authority enables attorneys to execute their client’s name at any stage of litigation,14 most attorneys continued to file notices of appeal with only their own signatures. Interpreting the new signature requirement, the Tennessee Court of Appeals held that a notice of appeal signed only by an appellant’s attorney failed to comply with section 36-1-124(d), failed to confer jurisdiction on the appellate court, and would force a dismissal of the appeal.15 Following that precedent, the Court of Appeals began dismissing appeals that did not bear the appellant’s signature.16 In August 2017, in a rare instance, the Tennessee Supreme Court exercised reach down jurisdiction17 over an appeal filed in the Court of Appeals where a show cause order was pending seeking the dismissal for the Appellant’s failure to sign the notice.18 The Court instructed the parties in In re Bentley D. to address whether the failure to comply with section 36-1-124(d) is a jurisdictional defect and whether the statute is unconstitutional based on separation of powers, due process and/or equal protection.19 February 2018
April James
Professor of Law LMU Duncan School of Law
The Tennessee Supreme Court upheld the law, which appears to infringe upon the court’s own right to promulgate the rules for appellate process, despite having framed the issues beforehand. The court seemed poised to strike – it did not happen. Instead, the Court compared the two newly enacted signature requirements for answers and notices of appeal in termination of parental rights cases and declared that if the legislature had intended for the Appellant to personally sign a notice of appeal, it would have stated that plainly, just as it did in the statutory amendment related to answers.20 Thus, the Court found that an attorney can continue to sign a notice of appeal on behalf of their client, but indicated that the attorney must have “specific authority to initiate an appeal.”21 The Court noted this construction would sustain the statute and avoid a “very problematic”22 constitutional conflict. Although it was obviously a shot across the bow of the legislature, lawmakers could simply amend the statute to add the word “personally” to the appeal signature requirement. It seems more likely, however, that the Court’s additional requirement of specific authorization will allow the statute to accomplish its intended goal of preventing attorneys from filing appeals in cases where they either had no authorization (a client who cannot be found) or only implied authorization. Practitioners might consider bringing a form to a termination hearing that provides a specific waiver of or authority to initiate an appeal on the client’s behalf. This suggestion may seem burdensome, but you never know when a new “housekeeping” amendment could result in sweeping ramifications. H.B. 1369, S.B. 1393, 109th Gen. Assemb., Reg. Sess., Pub. Ch. No. 919 (Tenn. 2016). Adoption: Hearing on S.B. 1393 before the S. Judiciary Comm., 109th Gen. Assemb., Reg. Sess., (Tenn. 2016) (statement of Sen. Jeff Yarbro and Bob Tuke, Tenn. Adoption Attorney), http://tnga.granicus.com/MediaPlayer.php?view_id=278&clip_ id=12103&meta_id=251562 3 Id. 4 Adoption: Senate Session - 59th Legislative Day, S.B. 1393, 109th Gen. Assemb., Reg. Sess., (Tenn. 2016) (statement of Sen. Jeff Yarbro and Bob Tuke, Tenn. Adoption Attorney). 5 Dawn Coppock, New Adoption and Termination Laws: What You Need to Know, T.B.A. FAM. LAW [CONNECT], (Aug. 8. 2016). 6 Id. 7 Tenn. Code Ann. § 36-1-117 (o) (emphasis added). 8 SB 1393/HB 1369, Title 36, Part 1, Adoption Law, Sec. 15 (March 2016), http:// dawncoppock.com/wp-content/uploads/2016/03/SB-1393-Explanation.pdf 9 T.R.C.P. 8.02. 10 Tenn. Code Ann. § 36-1-117(n). 11 Id. 12 Tenn. Code Ann. § 36-1-124(d). 13 Tenn. R. Civ. P. 11.01(a). 14 Tenn. Code Ann. § 23-2-104. 15 In re Gabrielle W., No. E2016–02064–COA–R3–PT, 2017 WL 2954684 (Tenn. Ct. App. July 11, 2017). 16 See In re Homer D., No. M2017-00298-COA-R3-PT, 2017 WL 3611043 (Tenn. Ct. App. Aug. 22, 2017); In re Dae’jrien T., No. E2017-00051-COA-R3-PT, 2017 WL 3600461 (Tenn. Ct. App. Aug. 21, 2017); In re David P., No. E2017-00245-COA-R3-PT, 2017 WL 3535014 (Tenn. Ct. App. Aug. 17, 2017); In re Nevaeh B., No. W2016-01769-COA-R3-PT, 2017 WL 3494335 (Tenn. Ct. App. Aug. 14, 2017); In re Audrina E., No. E2017-01178-COA-R3-PT, 2017 WL 3475526 (Tenn. Ct. App. Aug. 14, 2017); In re Jayden R., 2017 WL 3469708; In re Kendall H., No. E2017-01034-COA-R3-PT, 2017 WL 3446818 (Tenn. Ct. App. Aug. 11, 2017); In re Mya V., No. M2016-02401-COA-R3-PT, 2017 WL 3209181 (Tenn. Ct. App. July 28, 2017); In re Catherine J., No. W2017-00491-COA-R3-PT, 2017 WL 3141825 (Tenn. Ct. App. July 24, 2017). 17 Tenn. Code Ann. § 16-3-201(d)(3). 18 In re Bentley D., No. E2016-02299-SC-RDO-PT, 2017 WL 5623577 (Tenn. Sup. Ct. Nov. 22, 2017). 19 In re Bentley D., No. E2016-02299-SC-RDO-PT (Tenn. Aug. 24, 2017). 20 In re Bentley D., No. E2016-02299-SC-RDO-PT, 2017 WL 5623577 (Tenn. Sup. Ct. Nov. 22, 2017). 21 Id. at 5. 22 In re Bentley D., No. E2016-02299-SC-RDO-PT, 2017 WL 5623577, 6 n. 9 (Tenn. Sup. Ct. Nov. 22, 2017). 1 2
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MANAGEMENT COUNSEL: LAW OFFICE 101 By: Mary Celeste Moffatt Wimberly Lawson Wright Daves & Jones, PLLC
DRUG TESTING POLICIES, PROCEDURES AND ISSUES The U.S. Department of Labor reports that the costs to employers of employee drug abuse are between $75 and $100 billion per year, resulting in decreased productivity, higher turnover, habitual tardiness and absences. It is now more important than ever before for employers to have effective policies and procedures in place which address this costly problem.
*Cannabinoids, (THC) *Cocaine *Opiates *Phencyclidine
Tennessee Drug-Free Workplace Act *6-Acetylmorphine (heroin) To address this issue, employers in Tennessee which are covered by the Tennessee Workers’ Compensation Law may become a certified drug-free workplace under the Tennessee Drug-Free Workplace Act, Tenn. Code Ann.§50-9-101 et seq. (“the Act”). An employer begins implementation by developing a written policy pursuant to specific requirements of the Act, including requisite notices, training and procedural requirements as outlined in the Act and the applicable Rules of the Tennessee Department of Labor (“the Rules”). As an incentive, once certified, employers receive certain benefits, such as a 5 percent premium discount on workers’ compensation insurance. Implementation and certification resources are available through the Tennessee Bureau of Workers’ Compensation at https://www.tn.gov/workforce/injuries-atwork/employers/employers/drug-free-workplace-program.html. Employees must be given 60 days’ notice before an employer can begin testing under a newly implemented policy and the Company policy must be posted in a conspicuous location and distributed to individual employees. The Act requires at least one hour of employee training for all employees within 60 calendar days of program implementation or within 60 days of hire. Supervisors must receive an additional two hours of training. The Rules provide suggestions for training topics, such as general information about addiction and recognition and documentation of signs of substance abuse. The training does not have to be repeated each year, but must be provided to every employee at least once; each year thereafter the employer must obtain in writing from each employee (and supervisors) acknowledgement of the Company’s drug-free policy. However, we recommend employers include drug policy training for supervisors as part of annual training. Employers must utilize a certified lab and a Medical Review Officer (“MRO”), who is a licensed physician with knowledge of substance abuse disorders, laboratory testing procedures, including chain of custody requirements, and who verifies positive test results. The Act requires that employees/applicants be tested for the following drugs:
*MDMA (ecstasy) Employers must maintain drug and alcohol testing results and related information as confidential, except as required or permitted by law. Release of such information under any other circumstances may only be done pursuant to a written authorization from the employee or applicant.
The Act requires the following types of drug tests: *Job applicant (post conditional offer) *Reasonable suspicion *Routine fitness for duty (with certain limitations for public employers) *Follow up drug or alcohol (post EAP) *Post-accident
Of course, testing must be conducted in accordance with other applicable employment laws, such as the Americans with Disabilities Act. However, an employer is not prohibited from any other drug or alcohol testing of employees which is otherwise permitted by law. Random testing is neither required nor prohibited under the Act, but if implemented, such testing should be truly random. The Rules provide that for public employees, any testing under the Act is “limited to the extent permitted by the Tennessee and Federal Constitutions” and certainly public employers are advised to consult with counsel prior to implementing random testing in the workplace. Policy Requirements
*Alcohol-Not required for job applicant testing *Amphetamines
The written policy under the Act must contain several specific provisions, such as a statement identifying the types of drug and/or alcohol testing required, the actions that may be taken on the basis of (Continued on page 13)
About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Cathy Shuck at 541-8835.
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February 2018
MANAGEMENT COUNSEL: LAW OFFICE 101 a positive screen, and a list of all classes of drugs, including alcohol, for which the employer will test, described by brand name or common names, as well as by chemical name. Post-Accident Testing In a final rule published in 2016, the Occupational Safety and Health Administration (OSHA) amended 29 C.F.R. 1904.35 to address OSHA’s concerns regarding retaliation against employees for reporting workplace injuries. The final rule initially appeared to place serious limits on post-accident testing absent some evidence of drugs/alcohol as a factor. OSHA later clarified that the final rule does not prohibit employers from post-accident testing, so long as there is an objectively reasonable basis for testing and further stated that testing pursuant to state or federal law, such as a workers’ compensation law, does not violate the OSHA rule, which is another incentive for becoming a certified Drug Free Workplace under the Act. However, employers may want to exercise caution before requiring automatic drug testing in response to injuries such as a bee sting, or a repetitive strain injury where drugs were not likely to be involved. Federal Law and Other State Laws
(Continued from page 12)
such as for example, laws pertaining to the employee use of medical marijuana. In addition, federal employers and contractors must consider applicability of laws such as the Federal Drug-Free Workplace Act of 1988 (FDFWA), which requires that covered federal government agencies and contractors, as well as federal grant recipients, comply with this law. The Federal Drug-Free Workplace Act requires employers to implement good faith efforts to maintain a drug-free workplace, including publication of a policy statement prohibiting the unlawful use, possession, manufacture, or distribution of controlled substances in the workplace. U.S. Departments of Defense and Transportation have detailed rules and regulations regarding implementation of drug-free workplaces. Employers subject to these regulations must have written policies in place that fully explain their drug testing programs. A full discussion of the FDFWA, DOD and DOT procedures is beyond the scope of this article. Conclusion The risks and costs of substance abuse in the workplace are too great to ignore. Likewise, there are risks associated with drug testing, and employers implementing such a policy should seek counsel to ensure compliance with all applicable laws and regulations.
Other state statutes and regulations may have unique requirements which should be considered by employers operating outside Tennessee,
February 2018
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HELLO MY NAME IS
. . .
KAY L A S W I N E Y
By: Katheryn M. Ogle McDonald, Levy & Taylor, PLLC
profound impact on her legal practice. She had Akram Faizer for a class in her first year of law school and then intentionally registered for his courses in her second and third years. “As a professor, he forces every student to critically examine both sides of an issue, rather than becoming entrenched in a certain position and remaining there,” she explains. Kayla also credits Melanie Reid for her expertise in Criminal Law and inspiring Kayla to pursue the practice of criminal defense. “She truly taught me everything I know about criminal practice, and her multitude of experience as a female attorney in a male dominated practice showed me that I can achieve great things in this field.” In addition to playing kickball and volleyball in local recreational leagues, Kayla also has a great love for travel. She has visited Europe a few times, and had the opportunity to study abroad in China during law school. This experience allowed her to learn about the Chinese criminal justice system and participate in a symposium that taught university students how the justice system operates in the United States. Kayla is now learning to navigate the legal waters in her first year of practice. She presently represents plaintiffs in employment law issues, and is expanding the criminal defense practice of The Nelson Law Firm, PLLC. She is truly an engaging and inspiring young attorney, and we’re fortunate to have her as a member of the Knoxville Bar Association.
It’s not every day that an art teacher becomes an attorney, or that a homecoming queen from Coburn, Virginia identifies herself as an aspiring criminal defense lawyer, but for Kayla Swiney, Associate Attorney at The Nelson Law Group, PLLC, both of these statements sum up the current happenings in her life. Kayla is a 2017 graduate of Lincoln Memorial University Duncan School of Law and was sworn in to practice in October, 2017 after passing the July 2017 bar exam. Her path to Tennessee began when she received the valedictorian’s scholarship to Lincoln Memorial University in Harrogate, Tennessee. Kayla majored in art education, but wasn’t quite sure that she wanted to pursue a career as an art teacher. In her last semester of undergraduate studies, she began exploring options to begin law school. Upon contacting the law school admissions council, Kayla learned that the deadline for registration for the next LSAT was the next day. As fate would have it, she was able to register for the exam with ease, and sit for the next test. Later that summer, Kayla learned that she had been accepted to Duncan School of Law, but had also been offered a job teaching at Gibbs High School in Corryton. Not knowing if law school was still a venture she wanted to pursue, the young attorney opted to defer her admission for a year and accept the teaching job. After this year in the classroom, Kayla decided that her future was in the practice of law, and resigned from her teaching position. As many law students discover, the first semester of law school can be a bit daunting. For Kayla, it was especially intimidating because she hadn’t graduated with a traditional major for law school, hadn’t ever interned or worked within the legal field, and didn’t have any attorneys in her immediate family. However, with determination and commitment, Kayla found that her problem solving skills and way of looking at the world would serve her well in this new academic arena. During law school, Kayla met two professors who would have a
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Kayla Swiney participated in a study abroad program focusing on the criminal justice system in China during her law school career. February 2018
February 2018
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DREAMERS, HIGHER EDUCATION, AND JAILHOUSE POLICY: IMMIGRATION ISSUES AT THE NATIONAL, STATE, AND LOCAL LEVELS As we enter 2018, immigration law continues to occupy a key role in American politics. In this article, we explore immigration issues at each level of government: the national debate over the DREAM Act, the Tennessee General Assembly’s efforts to provide in-state tuition to undocumented students, and the Knox County Sheriff ’s Office’s adoption of the controversial 287(g) program. The DREAM Act The Development, Relief, and Education for Alien Minors (DREAM) Act would provide a path to permanent residency for qualifying undocumented immigrants who entered the U.S. as children.1 Between 2001 and 2011, Congress considered several versions of the bill but enacted none. Congress’s inaction led President Obama to implement Deferred Action for Childhood Arrivals (DACA) in 2012.2 To qualify for DACA, applicants had to meet criteria related to their age, education, criminal record, date of entry into the U.S., and length of U.S. residency.3 Successful applicants received two benefits: a work permit and a renewable two-year period of deferral of deportation.4 All told, DACA allowed 780,000 young people to pursue educational and job opportunities free from fear of deportation.5 Researchers have attributed numerous positive outcomes to DACA, including increased levels of education,6 better economic conditions for both immigrants and U.S. citizens,7 and improved mental health for both DACA beneficiaries and their children.8 In September 2017, Attorney General Jeff Sessions announced the repeal of DACA, subject to a six-month wind-down period.9 At this point, the government no longer accepts initial or renewal requests for DACA,10 although a January 9, 2018 ruling by a federal court in California has called into question the legality of the government’s discontinuation of the program.11 So far, approximately 14,000 people have lost their protected status, a number that grows by 120 every day.12 Because of the repeal of DACA, the DREAM Act is again at the forefront of the legislative agenda. President Trump, who has occasionally voiced support for DACA recipients,13 currently appears unwilling to approve the Act without significant concessions. He is seeking $18 billion to fund the border wall, as well as punishment for so-called “sanctuary cities.”14 In addition, he wants to restrict the admission to the U.S. of unaccompanied minors, most of whom are children fleeing oppressive conditions in Central America. And, in what would represent a major shift in immigration policy, Trump has demanded strict limitations on family-based immigration—referred to by critics as “chain
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migration”—which allows U.S. citizens and permanent residents to sponsor qualifying family members to immigrate to the U.S.15 Congressional Democrats have characterized Trump’s list of demands as a “nonstarter.”16 Further complicating matters is the need for Congress to enact a spending bill to avoid a government shutdown. Accordingly, at the time of this writing, the fate of DACA recipients remains tied up with Trump’s antiimmigration agenda and the funding of the federal government.
pass “[i]n today’s political climate, especially in a year when everyone is running for office again.”23 But the Senate sponsor, Todd Gardenhire (R-Chattanooga), indicated that he may be willing to make another push for a federally compliant bill.24 In the meantime, undocumented students in Tennessee will continue to face a tough decision about whether to pursue higher education at a heightened cost.
In-State Tuition for Tennessee’s Undocumented Students
On January 25, 2017, President Trump signed Executive Order No. 13768, “Enhancing Public Safety in the Interior of the United States,” which outlined the ways that Immigration and Customs Enforcement (ICE), the enforcement branch of the Department of Homeland Security, would ramp up immigration enforcement efforts against noncitizens inside the U.S.25 As part of those increased enforcement efforts, the Trump Administration announced the renewal of the controversial 287(g) program, through which the federal government enters into written agreements with state and local governments in order to delegate immigration enforcement duties to local officers.26 On June 15, 2017,27 the Knox County Sherriff ’s Office (KCSO) became the first new jurisdiction to enter into a 287(g) agreement with ICE during the Trump Administration.28 Section 287(g) of the Immigration and Nationality Act allows ICE to enter into formal written agreements, known as “Memoranda of Agreement” or “MOAs,” with local police departments to deputize certain officers to perform immigration enforcement functions.29 To be deputized, local and state officers must be U.S. citizens, undergo background checks, and have knowledge and experience enforcing local laws, supervising inmates, and maintaining security in jailing facilities.30 Selected officers must undergo a four-week training on relevant immigration policies.31 Only those officers who successfully complete the training are authorized to conduct federal immigration enforcement duties.32 The KCSO’s 287(g) program authorizes trained KCSO officers to execute immigration enforcement tasks “only during the course of their normal duties while assigned to KCSO jail/correctional facilities.”33 Generally, those enforcement tasks include interrogating and processing noncitizens arrested for state offenses, serving federal arrest warrants on those suspected of immigration violations, preparing charging documents for deportation proceedings in immigration court, and issuing federal immigration detainers (commonly known as ICE holds), which authorize the KCSO to hold noncitizens in KCSO correctional facilities for up to 48 hours after they are eligible for release
Turning to the state level, Tennessee lawmakers continue to struggle with the matter of in-state tuition for undocumented students at public colleges and universities. Currently, schools in the University of Tennessee system do not knowingly admit undocumented students. In contrast, schools within the Board of Regents system admit undocumented students but require them to pay out-of-state tuition.17 There is public support for changing this system, as demonstrated by a December 2017 Vanderbilt University poll finding that 70% of Tennessee voters support in-state tuition for undocumented students brought to the U.S. as children.18 Nevertheless, several obstacles have thwarted Tennessee lawmakers’ efforts to address the issue. A 2015 bill providing for instate tuition to undocumented students passed the Senate but fell one vote short in the House – a frustrating outcome for proponents given that two representatives who supported the bill failed to show up for the vote.19 In February 2017, lawmakers introduced a bill that would authorize “[t]he governing body of each public institution of higher education to determine the qualifications that students must possess to be eligible for payment of in-state tuition and fees.”20 Although the bill made no reference to immigrants, its purpose was to authorize schools to grant in-state tuition to undocumented students. In December 2017, Tennessee Attorney General Herbert Slatery opined that the bill would not function as intended because of a federal statute providing that the only way a state can give in-state tuition to undocumented immigrants is “through the enactment of a State law . . . which affirmatively provides for such eligibility.”21 According to the A.G.’s opinion, a state law “that confers eligibility for a benefit generally, without expressly mentioning unlawful aliens, does not satisfy the requirements of [federal law].”22 The A.G.’s opinion effectively killed the 2017 bill. The House sponsor, Mark White (R-Memphis), recently said that legislation expressly providing in-state tuition for undocumented students would be difficult to
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The Knox County Sheriff’s Office’s 287(g) Program
February 2018
COVER STORY By: William Gill Director of Legal Writing, LMU Duncan School of Law
Valeria Gomez
Equal Justice Works Americorps Fellow at Volunteer Immigrant Defense Advocates (VIDA) and Adjunct Professor, LMU Duncan School of Law from KCSO custody.34 (Immigration detainers exist to provide ICE with additional time to take custody of the noncitizens.) While Sheriff J.J. Jones has stated that the 287(g) program would be used to save the county money,35 the MOA provides that the KCSO is responsible for most costs associated with the program, including personnel expenses, salaries and benefits; personnel transportation; and KCSO officers’ salaries, overtime, travel, housing, and per diem during the four-week ICE training.36 Generally, the KCSO would also be responsible for liability and legal representation costs resulting from litigation related to the 287(g) program.37 In other jurisdictions, similar 287(g) programs have attracted criticism for being too costly, adding too many additional responsibilities to local law enforcement officers, and increased litigation costs resulting from constitutionally infirm immigration enforcement tactics.38 While exact figures on the local effect of KCSO’s 287(g) program are not yet available, immigration practitioners note that, as a practical matter, attorneys should expect the KCSO’s deputized officers to interrogate their noncitizen clients on their immigration status and to place ICE detainers for those who cannot prove lawful status or are charged with offenses that could render them deportable. This is the case even for noncitizens charged with minor misdemeanors or for noncitizens with pending immigration relief petitions. For example, community advocates have confirmed that on at least two occasions, KCSO officers detained noncitizens for immigration purposes after they appeared at the misdemeanor booking detainer to pay a citation. Legal observers and community organizations are keeping a close eye on KCSO arrest records to analyze whether the KCSO’s 287(g) program leads to significant increases in arrests of noncitizens for minor offenses, patterns suggesting racial profiling, or constitutional violations. Conclusion The topics covered in this article are only a few of the current hot-button issues involving immigration law. Others include the legal disputes over the travel bans, proposed changes to employment-based immigration, and the curtailment of Temporary Protected Status. A central theme unifying these issues is their entanglement with partisan politics, making it difficult to predict what the future holds for U.S. immigration policy.* 1 Dream Act of 2017, S.B. 1615, H.R. 3440, 115th Cong. (2017). 2 See Remarks by the President on Immigration, White House Office of the Press Secretary (June 15, 2012), available at https://obamawhitehouse.archives.gov/thepress-office/2012/06/15/remarks-president-immigration.
February 2018
3 Memorandum Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, DHS Secretary Janet Napolitano (June 15, 2012), available at https://www.dhs.gov/xlibrary/assets/ s1-exercising-prosecutorial-discretion-individuals-whocame-to-us-as-children.pdf. 4 Id. 5 Sheryl Gay Stolberg & Michael Tackett, White House Immigration Demands Imperil Bipartisan Talks, N.Y. TIMES (Jan. 5, 2018), https://www.nytimes.com/2018/01/05/us/ politics/ trump-republicans-immigration-spending.html. 6 Nolan G. Pope, The Effects of DACAmentation: The Impact of Deferred Action for Childhood Arrivals on Unauthorized Immigrants, 143 J. Public Econ. 98 (2016). 7 Giovanni Peri, The Economic Cost of Repealing DACA, EconoFact (Sept. 11, 2011), http://econofact.org/theeconomic-cost-of-repealing-daca. 8 Jens Hainmueller et al., Protecting Unauthorized Immigrant Mothers Improves Their Children’s Mental Health, SCIENCE (Aug. 31, 2017). 9 Attorney General Sessions Delivers Remarks on DACA, U.S. Dep’t of Justice, Office of Public Affairs (Sept. 5, 2017), available at https://www.justice.gov/opa/speech/ attorney-general-sessions-delivers-remarks-daca. 10 See U.S. Dep’t of Homeland Security, U.S. Citizenship and Immigration Services, Consideration of Deferred Action for Childhood Arrivals (DACA), https://www.uscis. gov/archive/consideration-deferred-action-childhoodarrivals-daca (last visited Jan. 7, 2018). 11 See Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., No. C 17-05211 WHA, 2018 WL 339144 (N.D. Cal. Jan. 9, 2018). 12 Stolberg & Tackett, supra note 5. 13 See Rebecca Savransky, Trump on DACA Recipients: Does Anyone Really Want to ‘Throw Out’ Good, Educated Young People?, THE HILL (Sept. 14, 2017), http://thehill. com/homenews/administration/350601-trump-doesanyone-really-want-to-throw-out-good-educated-youngpeople. 14 The Trump administration has loosely defined the term “sanctuary city” as any jurisdiction that “willfully refuses to comply” with certain federal immigration policies. See Exec. Order 13768, § 9(a), 82 Fed. Reg. 8799, 8801 (Jan. 25, 2017) (citing 8 U.S.C. § 1373). 15 Stolberg & Tackett, supra note 5. 16 Id. 17 Joey Garrison, Tennessee Universities Differ on Accepting Undocumented Students, THE TENNESSEAN (Mar. 10, 2014), http://www.tennessean.com/story/news/ education/2014/03/10/tennessee-universities-differ-onaccepting-undocumented-students/6272945/. Private schools are not subject to as many restrictions as public schools, and most in Tennessee admit undocumented students, although many do not have a written policy on the issue. 18 Associated Press, Tennessee Attorney General: Immigrant In-state Tuition Breaks Not up to Colleges, CHATTANOOGA TIMES FREE PRESS (Dec. 20, 2017), http://www.timesfreepress.com/news/breakingnews/ story/2017/dec/20/tennessee-attorney-generalimmigrant--state-tuition-breaks-not-colleges/459582/. 19 Dave Boucher, In-state Tuition for Undocumented Students Fails in House, THE TENNESSEAN (Apr. 22, 2015), http://www.tennessean.com/story/ insession/2015/04/22/house-passes-in-state-tuitionbill/26180055/. 20 H.B. 660/S.B. 635, 110th Gen. Assem. (Tenn. 2017). 21 Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 8 U.S.C. § 1621(d) (2012). 22 Tenn. Op. Att’y Gen. No. 17-53, at 3 (Dec. 6, 2017), available at https://www.tn.gov/content/ dam/tn/attorneygeneral/documents/ops/2017/op170531.pdf. 23 Associated Press, Tennessee Attorney General, supra note 18. 24 Id. 25 See Exec. Order No. 13768, 82 Fed. Reg. 8799 (Jan. 27, 2017). 26 Id. at 8800-01.
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27 U.S. Immigration and Customs Enforcement, Memorandum of Understanding between U.S. Immigration and Customs Enforcement and the Knox County Sheriff’s Office (June 15, 2017), available at https://www.ice.gov/doclib/287gMOA/KnoxCounty.pdf. 28 U.S. Immigration and Customs Enforcement, Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act (last updated Oct. 3, 2017), available at https://www.ice.gov/287g. 29 See 8 U.S.C. § 1357(g). 30 Memorandum of Agreement between U.S. Immigration and Customs Enforcement and the Knox County Sheriff’s Office, § VI: Nomination of Personnel. 31 Id. at § VII: Training of Personnel. 32 Id. at § VIII: Certification and Authorization. 33 Id. at App. D. 34 Id.; see also 8 U.S.C. §§ 1226, 1357; 8 C.F.R. § 287.7. 35 Tyler Whestone, Knox County Approved Controversial ICE Program, KNOXVILLE NEWS SENTINEL (June 29, 2017), http://www.knoxnews.com/story/news/ local/2017/06/29/knox-county-approved-controversialice-program/439207001/. In the KCSO’s 287(g) application, however, it stated that the primary reason for pursuing a 287(g) was “to fight illegal immigration.” Id. In 2013, after ICE denied the KCSO’s initial application for a 287(g) program, Sheriff Jones promised to “stack these violators like cordwood in the Knox County Jail until the appropriate federal agency responds.” Defiant Knox Sheriff to Stack Illegal Immigrant Violators “Like Cordwood” in Jail, KNOXVILLE NEWS SENTINEL (Aug. 21, 2013), http://archive.knoxnews.com/news/crime-courts/ defiant-knox-sheriff-to-stack-illegal-immigrant-violatorslike-cordwood-in-jail-ep-510512702-355551431.html. 36 Memorandum of Agreement between U.S. Immigration and Customs Enforcement and the Knox County Sheriff’s Office, § IX: Costs and Expenditures. Under the terms of the MOA, ICE will only pay for training instructors, training materials, and subject to the availability of funds, the purchase, installation, and maintenance of enforcementrelated technology. Id.; see also 8 U.S.C. § 1357(g) (1) (authorizing the federal government to enter into enforcement agreements with local governments, “at the expense of the State or political subdivision”). 37 Memorandum of Agreement between U.S. Immigration and Customs Enforcement and the Knox County Sheriff’s Office, § XII: Liability and Responsibility. 38 In February 2017, citing resource allocation concerns, Harris County, Texas terminated its 287(g) agreement, stating that it would put the $675,000 the county spent on the program toward other law enforcement priorities. James Pinkerton and St. John Barned-Smith, Sherriff Cuts Ties with ICE Program Over Immigration Detention, HOUSTON CHRONICLE (Feb. 21, 2017), http:// www.houstonchronicle.com/news/houston-texas/ houston/article/Sheriff-cuts-ties-with-ICE-programover-immigrant-10949617.php. In 2013, the Metro Government of Nashville paid almost $500,000 in a settlement agreement with a noncitizen woman detained under the 287(g) program. As part of the 287(g) program, the Metro Nashville Police Department had detained the nine-months-pregnant woman for driving without a license, forced her to give birth while shackled to a hospital bed, and denied her a prescribed breast pump after childbirth. Amanda Holpuch, Migrant Forced to Give Birth in Shackles Granted U.S. Visa, THE GUARDIAN (Oct. 27, 2014), http://www.nytimes.com/2013/10/18/us/ settlement-for-a-shackled-pregnant-woman.html.
* The writers thank Dr. Meghan Conley for sharing her research on the 287(g) program’s effect on law enforcement in Knox County. Dr. Conley is the Director of Community Partnerships in the Department of Sociology at the University of Tennessee and is a member of the Steering Committee for Allies of Knoxville’s Immigrant Neighbors (AKIN). Thanks also to J. Nikki Price, Associate University Counsel for Lincoln Memorial University, for providing information regarding the admissions policies of Tennessee universities.
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WALKING THE WALK : LESSONS LEARNED I N T H E E A R LY Y E A R S O F L E G A L P R A C T I C E By: Sarah M. Booher, Esq. The Law Offices of Ogle, Elrod, & Baril
PERSONAL RESPONSIBILITY FOR LEARNING Rebekah Pykosh is a Nashville native who moved to Knoxville in 2012 to attend the University of Tennessee College of Law. She has served as Corporate Counsel to a local company since 2015. I sat down with her recently to discuss her burgeoning practice, the lessons she has learned along the way, and avoiding burnout. Q: Were there any skills vital to your success as an attorney that you didn’t learn until after school? If so, how did you learn/acquire them? A: One skill I wish I developed more in law school was the art of negotiation. After graduation, I learned that I would encounter negotiation in both litigation and transactional work, so if I did not develop this skill, it would affect my ability to do my job. I took one course during law school, but it did not focus enough on the theory behind successful negotiations. In law school I thought negotiations involved aggressive lobbying for my side. My real life experiences have taught me that negotiations require assertive communication, as opposed to aggressive communication, and that the best deals are beneficial to both sides. In other words, aggressive communication demands needs and desires relentlessly, whereas assertive communication discusses needs and desires while acknowledging and respecting the other side’s positions. In most of the situations I’ve encountered thus far, both sides can walk away from the deal and still be perfectly okay. This means that for either side to agree, the terms have to be mutually beneficial. To make such a deal happen, I must have advanced communication skills and know how to respect and acknowledge the other side’s positions. In an effort to develop assertive communication skills, I took advantage of every opportunity I had to observe more experienced attorneys in action, learn through my experiences at work, and by the review of articles and other sources on the topic. Watching more experienced attorneys in action was the fastest way to gain the skill. As an assertive attorney now, I first listen to what the other person has to say. This lets them know that I am not solely interested in advancing my side’s interests, but rather I am genuinely interested in having a conversation to determine the best way to meet everyone’s desires and needs as much as possible. Assertive communication is important because it resists the stereotype that attorneys are extremely aggressive with no consideration for the position of others. It is better to communicate assertively with respect for others at all times. This fosters trust and open dialogue. When I communicate in this way, people are usually much more open to my legal advice. Q: What was the best advice you received in law school? A: One piece of advice I received was to take both advocacy and transactional classes rather than focus on just one of these during law school. I’m glad I followed this advice because I thought early on in my law school career I would litigate, but I now have a job that involves a lot of transactions. Taking both types of courses made me a more wellrounded young attorney. Q: How has the practice of law been different for you than what you imagined it to be?
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A: In law school I thought that every day in practice would be exciting and every day I would handle complex, interesting issues. I definitely have days like that, but I also have days filled with monotonous tasks. I would advise current law students to adjust their expectations now in order to have a smoother transition from law school to practice in the future. My greatest challenge as a young attorney so far has been getting used to the fact I still have a lot to learn. I finished law school and somehow thought this made me a “lawyer,” but in hindsight, finishing law school was only the beginning of my professional journey. I encounter something I do not know how to do almost every day and at the beginning, this could be overwhelming. I’m glad I expressed this to other young attorneys because I soon learned this was the norm. To be more comfortable practicing even when I felt I had a lot to learn, I pursued mentors at my organization, I took every chance I got to observe experienced attorneys in action, and I continue to take personal responsibility for my learning. In law school it was easier to strike a healthy balance between work and my personal life. One tool that has helped me strike a better balance since I started practicing is developing a time management system. There are resources and books that can aid in this process, such as “Getting Things Done” by David Allen and “The Anxious Lawyer” by Jeena Jo and Karen Gifford. When I better manage my time, there is more time to spend on things that matter most. Moreover, I’ve begun learning mindfulness. Mindfulness is a form of meditation that suggests living in the present relieves stress and provides greater clarity and focus. This has been extremely useful for me in my career. If I am solely focused on each moment of the day, it allows me to give my all to each issue as it arises instead of growing frazzled, burnt out, or overwhelmed. The academic skills we hone in school do not guarantee success on the job. The workplace requires emotional intelligence skills that cannot be taught in school.
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February 2018
barrister bullets MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are normally held on the second Wednesday of every month, social time starting at 5:00 p.m., with meeting to begin promptly at 5:15 p.m.at the Bistro by the Bijou (807 South Gay Street). The next meeting will be held on February 21, 2018 (this is a change that we have made because the second Wednesday falls on Valentine’s Day). There are many opportunities to get involved, so please contact Barristers President Mitchell Panter (tmp@painebickers.com) or Vice President Mikel Towe (mtowe@lewisthomason. com) for more information. ACCESS TO JUSTICE The next Veterans Legal Clinic is scheduled for noon on February 14, 2018, at the Knox County Public Defenders’ Community Law Office. If you are interested in signing up for the Veterans Clinic, you can do so on the KBA’s website: https://www.knoxbar.org/index.cfm?pg=Upcoming-LegalClinics. Also, LAET has partnered with KBA’s Bankruptcy Section, along with the support and involvement of United States Bankruptcy Judge Suzanne H. Bauknight, to create a Pro Bono Debt Relief Clinic to provide pro bono legal services to income eligible consumer debtors. The joint effort will host quarterly clinics, with the possibility of increasing the frequency depending on need and availability of volunteers. LAET staff will screen potential clients and give instructions to complete a questionnaire and bring it along with tax returns and pay stubs to the clinic. Clinics will be held on Saturday mornings, with the second quarterly clinic to be held on February 3, 2018, from 9:30 a.m. to 12:00 p.m. and will be held at the Knox County Public Defender’s Community Law Office. LAW SCHOOL MENTOR The Law School Mentor Committee will be conducting mock interviews at UT Law School January 31 through February 6, 2018. Please contact Stanton Fears (sfears@kramer-rayson.com) or Caitlyn Elam (celam@lewisthomason.com) if you are interested in volunteering. MOCK TRIAL The Barristers Mock Trial Committee is looking for volunteers to help as presiding judges, scoring judges, and bailiffs for this year’s KBA High School Mock Trial Competition. Volunteers are needed for Saturday, February 10 and Saturday, February 24. If you are interested in volunteering for one or both of those dates, please contact Sarah Watson at sarah@swatsonlaw.com or Amanda Tonkin at amanda.tonkin@tn.gov as soon as possible. Volunteers will need to be available from 8:00 a.m. until roughly 2:00 p.m. (although you might get done earlier). Volunteers will be provided with breakfast and lunch each Saturday. VOLUNTEER BREAKFAST The Volunteer Breakfast Committee would like to thank London & Amburn, P.C., for sponsoring the February 2017 breakfast at Volunteer Ministry Center. The Committee also appreciates Luke Ihnen of London & Amburn for preparing and serving the breakfast to individuals in need with the members of the Committee. The Volunteer Breakfast is a Barristers’ project. On the fourth Thursday each month at 6:15 a.m., the Barristers’ and their volunteers serve breakfast to individuals participating in the services of the Volunteer Ministry Center. If you are interested in sponsoring a breakfast or volunteering to prepare and serve breakfast, please contact Paul E. Wehmeier at pwehmeier@adhknox.com, Matthew Knable at knablelaw@gmail.com, or sign up on the Knoxville Bar Association’s website at http://www.knoxbar.org/KBA-News/help-volunteer-ministries.
Going All-In on Diversity and Inclusion: The Law Firm Leaders Playbook KBA Members will receive a 30% discount on the price of the book Going ‘All-In’ on Diversity and Inclusion: The Law Firm Leader’s Playbook. Kathleen Nalty is a former practicing attorney who has devoted her professional career to her passion for diversity, civil rights, and inclusion. Over the years, she has advised law firms of all sizes, corporate law departments and government legal offices about ways to make their workplaces more inclusive. Email Kathleen@kathleennaltyconsulting.com and mention the 30% discounted rate offered to KBA members.
February 2018
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LIFE AND LAW IN HARMONY By: Leslie L. Beale, Success Coach Profusion Strategies
JD
FIVE WAYS TO REALLY UNPLUG FROM WORK We all know that stress is bad for us, and most of us understand that one of the keys to overcoming our stress is to find a way to unplug from our work. Unfortunately, we also know this is easier said than done. The pressure to accomplish more each day, and to serve our clients in meaningful and competent ways is real. To cope, we often push ourselves to work later, bring work home with us, and even skip vacations. In fact, according to some studies, as few as 25% of American workers take their full vacation each year. Almost half of us regularly bring work home with us. If we unconsciously allow work to creep into our personal lives, however, related stress will almost certainly come along with it. While it’s unrealistic to think we’ll never have to take a phone call or respond to an email outside of work hours, we can become more intentional about how we unplug from our work. Wrap up your work day the right way. How we end our work day has a real impact on how we experience our time away from work. Leaving simple tasks undone, work spaces disorganized, and calendars a mess keeps our brain churning once we’re gone. If we can’t turn our brains off, we might as well still be at the office. Instead of rushing out the door at the last minute, stop your active work a few minutes earlier. Use the final minutes of your day to set the tone for your evening and the next morning. Close out of all your open documents and browser windows. Triage your emails, and line up those requiring response to be dealt with the following day. Tidy up your work space so that you don’t spend your down time dreading coming back to a mess. Not only does all of this put your mind at ease and leave you free to relax and enjoy other parts of your life, it sends a signal to your brain that it’s time to shift into a different gear. It becomes your “turn off work” routine.
Maybe you change clothes, put up your bag, and let the dog out. Maybe you turn on your favorite music or sit for a few minutes outside. The specifics don’t matter as much as the routine. The point is to develop something you do almost every day that reinforces the idea that you are home and moving into a different mental space. If you have children, get them in on the game. Have them hang up back packs, put up shoes, and wash their hands. Allow them a few minutes with a favorite book or game to unwind. Not only will the transition be easier for them, it will buy you a few minutes of peace. Carve out some work free time. Once home, create pockets of time that are off-limits for work except in cases of unusual circumstances. Maybe you want to spend time with your children, eat together and put them to bed without interruption. Maybe you want to exercise and enjoy some time with your spouse. Whatever your particular boundary is, honor it. If you need to check in on an email, review a report, or perform some other work task, you can do so outside of your free zone. Then, because you have honored your boundaries and spent time on your priorities, you won’t feel cheated or rushed. Keep work contained. When you do work from home, be sure to keep your work contained. Have a set place in your home to keep your laptop, calendar, and other work related items so that they don’t take over your personal space. If at all possible, avoid doing work in the bedroom, which can seriously confuse your brain when it’s time to get some sleep. It’s unrealistic to think we can totally compartmentalize our work, but we can find ways to keep the stress of the work day from creeping into our down time. It requires a few sound strategies, and a little effort, but the reward is well worth the trouble.
Make the most of the commute. Most of us spend at least a few minutes commuting after our work day. This time doesn’t have to be wasted. Instead, use it as a chance to reinforce the mental signal that it’s time to relax. Listen to music you really enjoy, or perhaps a favorite book you’ve been looking forward to finishing. Or, simply enjoy some silence. Just be sure that you don’t try to jam the commute full of more “productive time.” If your goal is to walk in the door of your home ready to enjoy your down time, cramming your commute full of calls, obsessing about the project you didn’t quite get finished, or replaying the argument with a co-worker is counterproductive. Remember, this is all about getting yourself into a different mental gear. Create a welcome home routine. The effort doesn’t stop once you cross the threshold of your house. Spend time developing a welcome home routine. It doesn’t have to (and probably shouldn’t) be elaborate.
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February 2018
SCHOOLED IN ETHICS By: Paula Schaefer University of Tennessee College of Law
TENNESSEE SUPREME COURT ADDRESSES ACCRUAL AND TOLLING OF LEGAL MALPRACTICE CLAIMS In December 2017, the Tennessee Supreme Court rejected two suggested tolling rules and upheld the state’s longstanding approach to determining the timeliness of a legal malpractice claim. The court’s decision in Story v. Bunstine, 2017 WL 6276109 (Tenn. 2017) has been described as solidifying Tennessee’s status “as one of the most hospitable U.S. jurisdictions for lawyers who are sued for professional negligence.” Samson Habte, Tennessee High Court Rejects Two Malpractice Tolling Rules, ABA/BNA Lawyers’ Manual on Professional Conduct, Current Reports, Vol. 33, No. 26, pp. 732 – 733 (Dec. 27, 2017). Accrual of the Cause of the Legal Malpractice Action: The Discovery Rule Tennessee has a one-year statute of limitations for legal malpractice claims. The statute provides that suit must be brought within one year after the cause of action “accrued.” Tenn. Code Ann. § 28-8-104(c)(1). In Bunstine, the Court explained that the point of accrual is determined by reference to the “discovery rule,” which is composed of two elements. First, the defendant’s negligent or wrongful conduct caused the plaintiff to suffer an actual injury. And second, the plaintiff knew “or in the exercise of reasonable diligence should have known” that the defendant’s wrongful or negligent conduct caused the injury. Bunstine, 2017 WL 6276109, at *6-7, citing Carvell v. Bottoms, 900 S.W.2d 23, 2830 (Tenn. 1995). The Court rejected Plaintiffs’ suggestion that a non-final order should never serve as the point of “actual injury” for purposes of when the cause of action accrues. Id. at *12-13. The Court explained that such a rule is “too simplistic,” and while a final judgment can serve as a default point of actual injury, courts should have flexibility to determine the issue on a case-by-case basis. Id. at *13. Rejected Tolling Doctrines: Appeal-Tolling Doctrine and Continuous Representation Tolling Doctrine Plaintiffs urged the Tennessee Supreme Court to adopt one of two tolling rules. Distinct from Tennessee’s discovery rule (which defines when a cause of action accrues for purposes of the statute of limitations), a tolling rule “suspend[s] or extend[s] the running of the limitations period.” Id. at *7. The first suggested tolling rule is known as the “appeal-tolling doctrine.” Even after a cause of action for legal malpractice accrues, if the attorney’s conduct occurred in ongoing litigation (and the viability of the malpractice claim depends on the outcome of the underlying case), this rule tolls the running of the statute of limitations until “all appellate proceedings in the underlying suit have been completed.” Id. at *8. The Plaintiffs asserted that the doctrine has the advantage of simplicity in determining the date when suit must be filed. The Court noted that the Court had rejected the rule over twenty years ago, that the majority of U.S. courts do not follow the rule, and that any advantage of simplicity is outweighed by the advantages of the current state of the law. Id. Plaintiffs’ second suggested tolling rule is the “continuous representation rule.” Under that rule, which is followed by a majority of jurisdictions, the legal malpractice cause of action is tolled until the attorney’s representation in the underlying matter is terminated. Id. at *9. The Plaintiffs argued that the rule allows clients to trust (and not second-guess) their attorneys and allows the attorneys “the opportunity to attempt to remedy an unfavorable result.” Id. at *10. The Court acknowledged the “validity of Plaintiffs’ concerns,” but determined that it is preferable to continue to consistently follow the discovery rule in both legal and medical malpractice cases, regardless of continuous representation or treatment. Id. at *10-11. February 2018
Final Thoughts on the Running of a Legal Malpractice Statute of Limitations in Tennessee While Tennessee’s formulation may appear at first glance to be “attorney friendly,” it is probably more accurately described as lacking certainty. Under the discovery rule, the cause of action does not accrue until the client knew or should have known that it was injured by the attorney’s negligence. As a fiduciary who owes duties of loyalty and care to the client, an attorney who recognizes his malpractice should admit it to a client. Benjamin P. Cooper, The Lawyer’s Duty to Inform His Client of His Own Malpractice, 61 BAYLOR L. REV. 174 (2009). This admission will trigger the accrual of the claim for purposes of the statute of limitations in Tennessee. Bunstine, 2017 WL 6276109, at *6. Even in the absence of such an admission, a lawyer could later argue that the client “should have known” of the malpractice at some earlier point in time. But that lawyer should expect the client to argue that if the lawyer did not recognize (and reveal) the malpractice, then it is illogical to conclude that the client “should have known” that the same conduct amounted to malpractice. In such cases, there will likely be some uncertainty (and debate) about when the cause of action accrued. See id. (explaining that the issue in a “should have known” scenario is whether the plaintiff was “aware of facts sufficient to put a reasonable person on notice that he has suffered an injury as a result of wrongful conduct.”). Though the Court rejected two tolling rules in Bunstine, it recognized the continuing validity of fraudulent concealment as a tolling doctrine. Id. at *7, n. 5. Under that rule, the statute of limitations is tolled if the defendant took steps “to prevent the plaintiff from discovering he or she was injured.” Id. In Bunstine, the Plaintiffs acknowledged that the assurances they had received from the attorneys did not amount to fraudulent concealment; instead, Plaintiffs argued that the statements were relevant to when Plaintiffs should have known they had a cause of action. Id. It follows that in Tennessee, an attorney who fails to reveal her malpractice but later argues that the statute of limitations bars the client’s claim should anticipate that her former client may argue either or both that: (1) the cause of action did not accrue at the point in time now urged by the lawyer because there is no reason the client should have known of the malpractice if the lawyer did not know of (and reveal) it; or (2) the statute of limitations is tolled because the attorney intentionally concealed the malpractice from the client. Ultimately, these arguments may not carry the day. But if either argument is convincing, it will breathe life into the client’s arguably delayed malpractice claim. Still another point of uncertainty regarding the timeliness of a Tennessee legal malpractice case may be when the lawyer’s negligence caused the plaintiff ’s actual injury. This was a critical issue in the Bunstine case. The Tennessee Supreme Court determined that the Circuit Court erred in granting the attorneys’ motion to dismiss because the facts alleged in the complaint did not establish an actual injury caused by attorney negligence at the earlier date urged by the attorneys. Id. at *1416 (concluding, “Based on the facts alleged on the face of the complaint alone, the cause of action did not accrue prior to November 13, 2013, and the Defendants’ motion to dismiss should have been denied.”).1 Thus, even though it rejected the tolling doctrines proposed by Plaintiffs, the Tennessee Supreme Court held that dismissal of the legal malpractice case was inappropriate given the facts alleged. The case has been remanded for further proceedings consistent with the Supreme Court’s decision. Id. at 17. 1 The Court also found that a remaining claim of malpractice was improperly disposed of by summary judgment because the Circuit Court erroneously concluded that it was not included in the original complaint. Id. at 16-17.
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OF LOCAL LORE & LAWYERS By: Joe Jarret Attorney At Law, University of Tennessee
John Williams: Knoxville Lawyer, Soldier, and Statesman Historians agree that the Colonel John Williams House in Knoxville was built between 1825 and 1826 by Melinda White Williams, wife of Colonel John Williams, while he was away serving as Chargé d’Affaires to Guatemala for President John Quincy Adams. (Melinda White was a daughter of Knoxville’s founder, James White.)1 The home is designed in the Federal style, a classification of architecture designed to pay homage to the newly founded United States, and popular between 1780 and 1830.2 But just who was this John Williams whose home was built in absentia? John Williams was born in what is now Forsyth County, North Carolina (then part of Surry County), the third of twelve children of Joseph and Rebekah Lanier Williams. John and his brother Robert read law in Salisbury, North Carolina, before John moved to Knoxville to practice the lawyer’s craft. The Williams boys’ father, Joseph Lanier Williams, most aware of the fact that both of his sons aspired to be lawyers, lamented (as have generations of parents since), “Robert and John are at the Bar. I do conceive that each of them cost me at least five hundred dollars over and above their schooling expenses, etc., to obtain their legal knowledge and furnish them with such books as I have done.”3 John began practicing law in North Carolina for a brief period before relocating to Knox County. Regarding John’s first appearance as an attorney in Knox County, records maintained by the Calvin M. McClung Historical Collection (the history and genealogy department of the Knox County Public Library) revealed the following entry in the Public Records of Knox County: “January 11, 1803: John Williams appeared and produced a license authorizing him to practice as an Attorney at Law in the severall [sic] Courts of Law and Equity in this State who took an oath to support the Constitution of the United States, an oath to support the Constitution of the State of Tennessee, and also the oath prescribed by Law for Attornies [sic], who is admitted as an attorney of this Court.”4 Soon after being admitted to the Knoxville Bar, various court documents reflect that John appeared frequently in court as both a defense attorney and a prosecutor. He also served as a temporary judge of the superior court of law and equity, acting under a special commission in the place of one of the regularly assigned judges. According to one historian, “Such appointments were expressions of considerable confidence in a young lawyer recently admitted to the Bar of the State.”5 As if the aforementioned were not enough to keep a young lawyer busy, John married Melinda White, daughter of Knoxville’s founder, James White, served as Tennessee’s State Attorney General from 1807-1808, and became a charter trustee of East Tennessee College in Knoxville.6 But for destiny in the form of the War of 1812, John might have lived the sedate life of a country lawyer. However, it was not to be. In June 1813, John was commissioned in the U.S. Army as a colonel, and ordered to recruit and organize the 39th U.S. Infantry for the purpose of engaging a Native American tribe referred to by the Army as “ The Hostile Red Stick Creeks.”7 In short order, John was successful in recruiting and partially equipping 600 troops. In early 1814, Williams and the 39th were placed under the command of Andrew Jackson, who was preparing an expedition against the Red Sticks in Alabama.8 John received an honorable discharge from the Army in June 1815, returned to civilian life, and was promptly elected to the U.S. Senate to fill the vacancy of resigning George W. Campbell. In 1817 he won a six-year term, during which time he served on the Committee for Military Affairs, which reorganized the medical staff of the army and modified the organization of the U.S. Military Academy. Williams voted for legislation supporting the U.S. Bank, the protective tariff, and the Missouri Compromise.9 His senatorial years behind him, John was appointed chargé d’affaires to the Central American Federation, by President John Quincy Adams. John spent most of 1826 at this post in Guatemala before returning to Knoxville to practice law until his death in 1837. There exists in the cemetery adjacent to the First Presbyterian Church in Knoxville a simple, grey, weather-beaten gravestone that belies an extraordinary life and reads simply, “In Memory of Col. John Williams-Born Jan. 29, 1778-Died, Aug. 10, 1837. Knoxville: Fifty Landmarks. (Knoxville: The Knoxville Heritage Committee of the Junior League of Knoxville, 1976), page 17. The Federal Presence: Architecture, Politics and Symbols in United States Government Building (Federal Architecture Project, Cambridge: MIT Press) 1978, chs. 1–3. 3 Biographical history of the American Congress, 1774-1949 (Washington D.C. 1950, p. 2019). 4 Records of Knox County, Record Book No 4, 1802-1805. McClung Historical Collection, Knox County Public Library. 5 Maiden, Leota Driver. “Colonel John Williams.” The East Tennessee Historical Society, 30 (1958): 7-46. 6 Mary Rothrock, The French Broad-Holston Country: A History of Knox County, Tennessee (Knoxville, Tenn.: East Tennessee Historical Society, 1972), p. 506. 7 Leota Driver Maiden, “Colonel John Williams,” East Tennessee Historical Society Publications, Vol. 30 (1958), pp. 7–46. 8 Id. 9 Robert M. McBride, Biographical Dictionary of the Tennessee General Assembly (1975). 1 2
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DICTA
February 2018
O F T H E R M O M E T E R S A N D T H E R M O S TAT S By: Melissa B. Carrasco Shareholder, Egerton, McAfee, Armistead & Davis, P.C.
CIVILIZATION “Civis Romanus sum” – “I am a Roman citizen.” According to Cicero, arguably the most famous and long-winded lawyer of the first century B.C., uttering this phrase could protect a man from all sorts of unpleasantries—flogging, imprisonment, and “cruciatumque a corpore deiecturum arbitrabature” which roughly translated has something to do with torture.1 To be fair, uttering this phrase did not help Publius Gavius, the man referenced in Cicero’s speech, one iota,2 but the New Testament book of Acts records a time in which the Apostle Paul was saved from flogging by reminding the centurion that he was a Roman citizen.3 Not too long ago, I got a vivid reminder of how important citizenship can be. My husband and I were invited to talk to several ELL (English Language Learners) classes at a local high school. Actually, he was the one who was invited; I just tagged along. He is a naturalized citizen who came to the U.S. twenty-six years ago with one suitcase, fifty dollars, and a promise to his mother that he would get his college degree in five years. He didn’t know any English other than a few phrases picked up from the lyrics of American ‘80s metal bands. In one year, he learned enough English to pass a college entrance exam and managed to secure a full-ride playing NCAA Division 1 soccer. Four years later, he kept his promise to his mother, graduating with a computer science degree exactly five years to the day that he left his mother in Bolivia. He has gone on to earn two Masters Degrees. He is a combo soccer jock – computer nerd – electric-guitar-playing rocker who is unstoppable when he puts his mind to something. So, needless to say, the kids immediately picked up on the fact that he was the cool one. I went along just in case the kids might want to hear from an unathletic lawyer who plays classical piano and reminds them of their mother. They didn’t. So, I just listened. The first question the kids asked was, “why did you want to become a citizen.” In fact, over the course of the day, that question was asked more than once. His answer was instructive. “I wanted to be able to vote.” He explained, that, in his home country, people have the right to vote, but right now, it is largely meaningless. The current president was elected in 2005. According to the Bolivian constitution at the time, presidents were elected for one, fiveyear term and could be re-elected one time. But, ten years was not long enough. The president did not want to leave office, so a new constitution was proposed which included an amendment allowing the president to serve a third term. At most of the voting centers, voters were told to place their votes using pens with erasable ink. The new constitution passed. In 2016, the country held a referendum to amend the constitution again and allow the president to serve a fourth term. This time, the referendum failed, but in December 2017, the Supreme Tribunal of Justice of Bolivia (the equivalent of the Supreme Court) declared that all public offices would have no term limits regardless of what the constitution says. At this point in time, the options for electing a new president are very limited. That is why it wasn’t good enough for my husband to remain a permanent resident of the United States. As a permanent resident, he could do just about everything that a citizen can do, but he could not vote. To him, being a citizen was important because it meant having not just the right to vote but the right to participate. In fact, that is the essence of citizenship. The word “citizen” comes from the Latin word civis. It means belonging to a city,4 which was very February 2018
important in an era when cities were just emerging. From this little Latin word, we get a lot of other words such as “civics” and “civilization.”5 These words connote a relationship among people who are members of a community sharing in both the benefits and the burdens of membership with each other. For a citizen, it is not good enough to just be a member of a community. A citizen actively participates in it. The word civis also spawned the French word “civilite” from which we get our English word “civility.” This word developed in order to distinguish the way citizens interacted with each other from the way noncitizens, the “uncivilized,” behaved.6 “Civility” describes the politeness and courtesy with which citizens treat each one another. A citizen is characterized by civility. Listening to my husband reminded me that status as a citizen or a member of a community is a valuable thing. It certainly has its benefits. In Ancient Rome, citizenship might prevent a flogging; KBA members can get free CLE. However, it is not good enough to just be a citizen. Citizenship is meaningless if you do not participate in the community of which you are a citizen – whether it is a country, city, neighborhood, the legal community or the Knoxville Bar. Citizens also have the responsibility to make civility the distinguishing characteristic of their interactions with each other. It took my husband fourteen years to become a U.S. citizen. He has not missed an election day ever since, no matter how long the lines might be. It is his chance to participate in shaping the city, county, and country that he calls home. That’s what thermostats do. 1 See Marcus Tullius Cicero, In Verrem, 2.5.162, in Latin Texts & Translations, available at http://perseus.uchicago.edu/perseus-cgi/citequery3. pl?dbname=PerseusLatinTexts&query=Cic.%20Ver.%202.5.162&getid=0. 2 Id. 3 See Acts 22:22-29. 4 Vocabulary.com, Civis, https://www.vocabulary.com/dictionary/civic, last visited Jan. 10, 2018. 5 English for Students, Civ & Civil, http://www.english-for-students.com/civ.html, last visited Jan. 10, 2018. 6 See Merriam-Webster, Civil, https://www.merriam-webster.com/dictionary/civil, last visited Jan. 10, 2018. 7 Merriam-Webster, Civility, https://www.merriam-webster.com/dictionary/civility, last visited Jan. 10, 2018.
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HIDDEN KNOXVILLE By: Angelia Nystrom University of Tennessee Institute of Agriculture
MIGHTY MUSICAL MONDAY AT THE TENNESSEE THEATRE We live in an area that is rich in history and culture and with abundant natural resources. No matter where I travel, I am always asked about my *distinctive* accent. Whenever people learn that I hail from East Tennessee (Dandridge, to be exact), people always share tales of trips to the Great Smoky Mountain National Park, Dollywood, and, for those who are around my age, the 1982 World’s Fair. As a native, I will confess that I often take these things for granted. And don’t experience them nearly as often as I should. We live in an area that offers a plethora of activities and places to visit. With such an overwhelming selection, though, I find that I often overlook some of our region’s more out-of-the-way places that offer a little something extra. Moreover, a lot of great things are happening in plain sight. This year, my column in DICTA will explore some of our region’s “hidden treasures”—those places and activities that are well worth discovering. Last month, my travels took me all the way to Gay Street to the historic Tennessee Theatre. Sure, I’ve been to the Tennessee Theatre many times, taking in a number of Broadway shows, productions by the Knoxville Opera, really great concerts and maybe even a Thomas the Train Show or two. However, I am ashamed to say that I had never ventured out to the Mighty Musical Monday concerts. Sure, I had seen the Mayberry squad car with Barney Fife, as well as vans from local senior centers lining the street on various Mondays—but I never thought that I would enjoy spending my lunch hour listening to an organ. I was wrong. Last month, my mom and several other relatives asked if I would like to meet them for the Mighty Musical Monday holiday concert. Normally, I would have politely declined; however, on this particular Monday, I had a morning meeting downtown, which meant that I would already be in the area. And my mom offered to buy the brown bag lunch (sandwich, chips and drink, while supplies last), which is $5.00 at the event. She even offered popcorn, candy and soft drinks. Not one to turn down food, I said “yes.” For those who are unfamiliar, the Mighty Musical Monday concerts are a free lunch-time concert centered on the Wurlitzer organ at the Tennessee Theatre. The Mighty Wurlitzer organ was installed in the Tennessee Theatre in 1928, the time of the building’s opening. Today, it is one of the few theatre organs still installed in its original location. Patrons of the performance are greeted by Sammy Sawyer, a/k/a Barney Fife, in the lobby and then are treated to a performance by organists Dr. Bill Snyder and Freddie Brabson, along with various guest performers. When asked how the idea of Mighty Musical Monday started, Becky Hancock, Executive Director of the Tennessee Theatre, says, “The organ was restored in later 2001, and the organ technicians told us that it was a good idea to play it regularly to give it exercise. We hadn’t played it very often except for a few movies every year. So, Bill Snyder and I together came up with the idea of doing a standard concert. We picked the first Monday of the month and have been holding concerts since December of 2001.” On the day I attended, I arrived at approximately 11:45 (doors open at 11:30 for the noon performance). The street was lined with
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buses and vans from local retirement centers, and the line to enter was extremely long. Thankfully, my family had saved me a seat. The concerts are attended by mostly seniors, and Hancock has a theory as to why: “So many of these people came to the theatre in the ‘40s and ‘50s, and they have such fond memories of being here when they were young. It’s during the day, it’s free and a lot of the music is what seniors enjoy. The daytime concert is really a great way for them to come back and enjoy the theatre and enjoy this beautifully renovated space.” The music, though, is not just for seniors. The Knoxville Swing Band played holiday favorites and Glenn Miller-era tunes at the holiday concert, and the performance also featured various soloists, a middle school show choir (with their own version of the Rockettes), a reading by WBIR anchor Robin Wilhoit, as well as the always impressive Webb School Madrigal singers. As I sat there on the front row, watching the organ rise from the orchestra pit and listening to the beautiful music, I could feel the stress of the day (and of the holiday season) melting away. For almost 90 minutes, I was transfixed on the beauty of the event and transformed by the magical melodies that were played. It was truly the best lunch hour that I can recall. And I wondered why, in all the years that I worked on Gay Street, I had never taken the time out of my day to attend this free event. Of all of the holiday events and performances we attended this year (and we attended several), the Mighty Musical Monday event was one of the very best. If you have never attended (or if it has been a while since you last attended), please take time to attend one of the upcoming performances. You won’t be disappointed in this hidden gem.
DICTA
February 2018
WELL READ By: Beth Ford Community Defender
BOOK REVIEW: DEVIL IN THE GROVE BY GILBERT KING Compelling, horrifying, inspirational. Gilbert King’s Devil in the Grove is all three and more. Just as it is difficult to label the book with one adjective, it is difficult to identify just one story line. The book recounts the story of a false rape charge by a white woman and her husband against four young black men, and it offers insight into the brilliance of Thurgood Marshall who became involved in their defense while, also, focusing on the case that would become Brown vs. Board of Education. The criminal case against Walter Irvin, Charles Greenlee, Samuel Shepherd, and Ernest Thomas takes place in Groveland, Florida, a community literally ruled by a racist sheriff named Willis McCall. Groveland is citrus country where the black residents of the town provide the labor that makes the citrus industry successful, and it is a community where many of the white residents from law enforcement to lawyers are active, and many unabashedly so, members of the Klu Klux Klan. By the time that the story ends, there are two dead (murdered) defendants, two death sentences, dead members of the NAACP, a “mercy” sentence of life at hard labor, a reversal by the United States Supreme Court, and a too little, too late commutation. While the actions of law enforcement and the judiciary are shocking, this story serves as a reminder of how many important Supreme Court decisions did not yet exist in 1951. In 2018, it is hard to remember that prosecutors have not always had to turn over exculpatory evidence. Can you imagine medical records in a rape case that were completely inconsistent with a complainant’s report not being revealed to the defense? After all, in 1951, Brady had not yet been decided. Even without the protections of the Supreme Court decisions that defendants now have, this is a story of justice gone wrong. Although the book is advertised as a story about “Mr. Civil Rights,” Thurgood Marshall, his story comes and goes through the book. Much of the information about Marshall and the Groveland case had not previously been printed. The author, Gilbert King, was given access to NAACP’s Legal Defense Fund documents and FBI documents that had never been shared. The result is that there is much new learned about the work of Thurgood Marshall before he became a Supreme Court justice. Thurgood Marshall had a very detailed, thorough strategy to do away with segregation in the United States. As with a great number of seminal decisions, there were many cases that developed the issue of school segregation and led to the Brown case. However, even as Marshall was finding and developing those cases to be the building blocks of his ultimate goal, he took time to travel often to the South to defend African Americans whose crime was usually the color of their skin. It was dangerous work. There were death threats; there were assassination attempts; and there were car chases. Marshall and his colleagues were despised by the racists, because they dared to speak up in court to white judges and juries, and they were successful- on appeal, rarely at the trial level. The book was award the 2013 Pulitzer besting Behind the Beautiful Forevers by Katherine Boo and The Forest Unseen by David George February 2018
Haskell. The book was, also, recognized as the Book of the Year in 2012 by the Boston Globe, The Christian Science Monitor, The Library Journal, and Barnes and Noble. According the author’s website, Mr. King is a writer for the New York Times, Washington Post, and The Smithsonian. This is his second book. If you would like an opportunity to discuss this book, join a loosely organized group of lawyers who practice in federal court on Thursday, February 15 at 11:30 at the Federal Defender Services office, 800 South Gay Street, Suite 2400. RSVP to Elizabeth_Ford@fd.org. Additionally, Well Read will focus on diversity this year. (See President Burroughs’s column.) Next month, Luke Ihnen will review The Blood of Emmett Till by Timothy Tyson. In April, the book will be Going All-In on Diversity and Inclusion by Kathleen B. Nalty who is offering KBA members a 30% discount on the book. Email Kathleen@ kathleennaltyconsulting.com and mention the 30% discounted rate offered to KBA members. It is hoped that you all can read along with DICTA and that we can engaged in some great discussions.
DICTA
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YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris Lincoln Memorial University Duncan School of Law
CALL ME DOC “So, what do you do for a living?” It’s a common enough question, especially at parties, where you’re meeting lots of new people. And the answer is also pretty standard: “I’m an attorney. I review contracts for the ABC Corporation . . .” “Zzzzzzzzzz.” You notice your new acquaintance’s eyes glazing over. Oh, no. Not again. Have you ever been tempted to lie in such a circumstance? To make your job sound more interesting? To make yourself seem more, well, important or attractive? Turns out, you’ve got a First Amendment right to lie. In United States v. Alvarez, 567 U.S. 709 (2012), the Supreme Court struck down the Stolen Valor Act, which broadly criminalized false statements about military service. Xavier Alvarez was convicted of falsely claiming to have earned the Medal of Honor. The Court overturned his conviction and held that the First Amendment protects false statements, unless in making those statements the speaker intended to obtain something of value, such as veteran’s benefits. But, wait . . . aren’t false statements prohibited by various consumer protection laws and professional licensing regulations? Of course they are. Businesses can’t make false claims about their products, and lawyers can’t make false claims about their qualifications. And people who have never taken a bar examination can’t claim to be attorneys. How do we reconcile such restrictions on speech with the First Amendment? Answer: The First Amendment provides only limited protection to so-called “commercial speech.” Although there is no single, authoritative definition of the term, “commercial speech” generally refers to advertising and other communications designed to sell products or services. A similar, and similarly ill-defined, category is “professional speech,” which is also less protected by the First Amendment, allowing the government more leeway in regulation. Enter Mary Louise Serafine. Dr. Serafine, who spoke to me on a recent episode of my public radio show, Your Weekly Constitutional, has extensive education and experience in psychology. But she is not licensed in the State of Texas, where she recently ran for public office. On her campaign website, she referred to herself as a “psychologist,” prompting regulators to demand that she cease and desist. Dr. Serafine complied, but then filed suit, claiming infringement of the First Amendment. Dr. Serafine won. The Fifth United States Circuit Court of Appeals held that her campaign website was protected as core political speech.1 It also struck down part of the licensing statute as overbroad. But the Fifth Circuit’s opinion doesn’t resolve the entire issue: What if Dr. Serafine had been calling herself a “psychologist” outside of the political arena? What if she had been offering professional advice? What if she had been charging for such advice? Dr. Serafine has thought deeply about these issues and now believes that the government should play no role in professional licensing. Not for psychologists, not for lawyers, not even for physicians. Don’t laugh. Dr. Serafine is no crank – she has a law degree from Yale and a Ph.D. from the University of Florida. She has some interesting insights and arguments that are not easily dismissed. Tamara Piety, a law professor at the University of Tulsa and an expert on commercial speech, thinks differently. She believes that the state has a legitimate role in regulating professional qualifications, and,
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by extension, professional speech. Allowing anyone to call himself an “attorney” or a “physician” could lead to some serious harm. More broadly, Professor Piety thinks that commercial speech, ill-defined as it is, is something that the government can and should regulate, if only to give some modicum of protection to consumers. Dr. Serafine disagrees. She thinks that private entities will do as well or better than the government in certifying the qualifications of doctors and other professionals. In any event, consumers should be responsible for picking only qualified physicians, and lawyers, and other professionals, based upon their own research. If they choose poorly, well, let the buyer beware. State regulation of commercial and professional speech should be unconstitutional. Professor Piety thinks that such an interpretation of the First Amendment would lead to the destruction of pretty much all consumer protection laws, perhaps even many common regulations of commerce. The result could be revolutionary. The debate will continue, probably for years to come. In the meantime, you’re probably safe exaggerating your importance to that attractive guy or gal whom you meet at a party. But be careful not to claim a professional title that you haven’t earned, or the regulators may come after you. 1
Serafine v. Branaman, 810 F.3d 354 (5th Cir. 2016).
Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify.
DICTA
February 2018
LONG WINDED By:
Jason H. Long London Amburn
THAT’S THE WAY THE COOKIE CRUMBLES As many of you know, I made a career change this past October and am back with London & Amburn. It has been a good move, although I am very thankful to have worked with the really excellent people and attorneys at Lowe, Yeager & Brown over the past few years. Well, its time for another big employment change for me. I’m taking on a second job. It will be in addition to my duties as a practicing lawyer and I have assured my partners that it will not cut into my billable hours or the level of service I provide to my clients. However, in my spare time, I have become a cookie salesman. A Girl Scout cookie salesman, to be more precise. My eight-year-old daughter, Janie, has joined her local brownie troop and, with that privilege comes the obligation to hit the pavement and hawk some cookies. It really hasn’t been too great a burden on my daughter, who hasn’t lifted a single finger to sell box one, but her mother and I have been hustling Samoas and Tagalongs like a peddler selling tonic elixers at a county fair. Let me take off on a quick personal tangent here. When I was in grade school, I remember that Knox County decided one year that all of its students would raise money by selling cheese and summer sausage (in the days before coupon books). They offered cash rewards to students who sold the most product. As an impressionable eleven-year-old, I decided that this would be the best way I could make extra money. However, my parents refused to help me with the sales. Their position was that if it was something important to me, I should take full ownership of it (I think their secondary reason was that they didn’t want to make sales calls to their friends). I can say, with some amount of confidence, that there is nothing sadder than an elevenyear-old, wearing a Han Solo tee shirt, showing up at your front door trying to sell salted and cured meats. Needless to say, I didn’t win any sales awards that year. My own history aside, the Girl Scout cookie scheme is perfect on paper. Tasty cookies, sold by adorable little girls, who are trying to raise money for a good cause. It is a formula that has been working for over 100 years now. What’s more, Girl Scout cookies actually seem to be a good bargain. I can prove it mathematically. There are 32 cookies in your average box of Thin Mints. Another quick aside here, I think that number has got to be wrong. I can recall several times in my life that I have, in a single sitting, consumed an entire box of Thin Mints and chased it down with a few slices of pizza. There is no way I ate 32 cookies in a single setting. Right? Until someone proves me wrong, I am going with my original assumption that there are two cookies in each box. That sounds much more reasonable. Now, a box of Thin Mints will run you, on the open Girl Scout market, $4.00 in 2018. If my estimates are right, that’s $2.00 per cookie, which seems February 2018
way too expensive. If you take the manufacturer’s inflated numbers, its 12.5 cents per cookie. That number sounds imminently reasonable, presuming you are willing to admit that you ate 32 cookies in a single setting. In fact, I could argue that it really is about the best bang for your buck you can get these days. For that 12.5 cents, you get a delicious thin mint cookie and the satisfaction of knowing you helped young girls trying to have a positive impact on the community. In fact, at 12.5 cents per cookie, the question is not “why would you purchase a box of girl scout cookies?” The question is, “why wouldn’t you?” Anyway, that’s my sales pitch. Alas, it all sounds a little too good to be true. Buyer beware, purchase of Girl Scout cookies has been known, from time to time, to involve legal ramifications. Consider, for example, the Colorado man, who will remain unnamed, who found out the hard way what happens when you play fast and loose with the Girl Scouts. In 2014, he wrote a check to his local troop for $42.00 for the payment of his cookies. The check bounced because his account had purportedly been closed. The Girl Scouts played hardball. They sent the bill to collections and, after statutory penalties and attorneys fees, his $42.00 worth of cookies blossomed into a $740.00 judgment. For those keeping track, that’s an increase of 1600% in the cost of cookies. Suddenly, that 12.5 cent cookie costs $2.00 bucks again. The moral of the story here, Girl Scouts get paid. To that point, a woman in Roanoke Rapids, North Carolina was threatened with litigation by her daughter’s girl scout troop when she attempted to return unsold cookies that she had pledged to sell for the troop. Apparently, a commitment to the girl scouts is a blood oath not to be taken lightly. Finally, as long as I was researching Girl Scout cookie litigation (a very rare search term likely to get me on some watch list), I came across one truly disconcerting story. In 2017 a woman filed a lawsuit against the City of Hazelwood, Missouri for shutting down her daughter’s cookie stand for violating a local ordinance. The shutdown occurred when a neighbor notified authorities that the children were operating a girl scout cookie stand in their own front yard. What kind of monster do you have to be to call the authorities on a couple of girl scouts selling cookies? I am glad to see that these girls, in addition to getting life lessons on the value of hard work, industry and commitment, are also being exposed to our legal system in action. I am sure it was a rewarding experience. Anyway, if anyone needs an extra box of Thin Mints, let me know. Apparently, I can’t return unsold boxes and the Girl Scouts have their own debt collection arm. Hope the new year is going well.
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B I L L & P H I L’ S G A D G E T O F T H E M O N T H By: Bill Ramsey Neal & Harwell
Phil Hampton
Founder and CEO, LogicForce Consulting
BITCOIN, ETHER, CRYPTOCURRENCY AND SUCH Yes, we know — Cryptocurrency is not a “gadget.” We do love our gadgets, but we love money, too, because it can buy us more gadgets. So, writing about Bitcoin, Ether and other cryptocurrency seems a natural fit for our monthly gadget. And, since this topic is so nerdy, it really appeals to us. Some say cryptocurrency is the future of “money.” Some say all cryptocurrencies are Ponzi schemes. All agree it is a very trendy topic. Banks, accounting firms, governments and securities firms are all researching the topic, and many do not understand the basic concepts behind it. We believe that bitcoin and other cryptocurrencies are a logical step in the evolution of “money.” In cave man days, we traded goods. Then, as we evolved and became more “civilized” we used precious goods, such as salt, or silver or gold, or even whiskey as “money.” Next, we created coins out of precious metals, and later backed paper money with the equivalent amount of precious metal, such as gold or silver. Remember “Silver Certificates” or when Nixon took us off the gold standard for our currency in the 1970s? Since that time, our money is purely “fiat money,” or currency without any intrinsic value established as money by government regulation or law. And now, we rarely use cash or coins, we use credit cards, or PayPal or Venmo, or Apple Pay. Most spending transactions are now digital. When we pony up for one of our gadgets, we rarely pay cash, we plop down our credit cards. We pay with “digital cash.” With credit cards, Venmo, PayPal, etc., you need a payment network with accounts, balances, and transactions. And to make them work, you need to have a trusted record keeper to keep track of the transactions to prevent double-spending and to verify balances, etc. An inventor who used the fake name, Satoshi Nakamoto, figured it out. The solution is the use of “Blockchain” technology that you may have heard about. With Blockchain, there is no centralized ledger. Instead, Blockchain technology uses a network of peers. Every peer has a record of the complete history of all transactions and thus of the balance of every account. Theoretically, the peers do not trust one another, so there can be no cheating. The transaction is known almost immediately by the whole network. But the transaction needs to be confirmed. As long as a transaction is unconfirmed, it is pending and can be forged. When a transaction is confirmed, it is set in stone. It is no longer forgeable, it can‘t be reversed. Transactions such as credit card transactions use a single record keeper, and those transactions can be reversed. Not so with Blockchain or Bitcoin transactions. Once confirmed, they are set in stone. So, you ask, how do transactions get confirmed. They are confirmed by so-called “miners.” Only miners can confirm transactions. This is their job in a cryptocurrency-network. They take transactions, stamp them as legit and spread them in the network. After a transaction is confirmed by a miner, every node has to add it to its database. It has become part of the blockchain. For this job, the miners get rewarded with a token of the
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cryptocurrency, for example with Bitcoins. How do miners “mine?” They compete to solve a cryptologic puzzle for the transaction. After they solve the puzzle, they add it to the Blockchain and it is set in stone.After finding a solution, a miner can build a block and add it to the blockchain. Mining requires a specific amount of computing power. Once “mined” and there is a consensus in the network, no one on the network can break or change the transaction. So, these cryptocurrency transactions are irreversible, are not identified with any individual (pseudonymous), and are secure. The transactions are very fast; and no one has to give permission for them (other than verification by miners). The blockchain technology that ensures the veracity and security of cryptocurrency transactions is also getting the notice of the legal technology world. Many envision blockchain being utilized by lawyers for smart contracts as well as other law firm administrative processes. In fact, we believe that in the near future, we will see blockchain being implemented in a number of industries across the global economy. Is this technology the magic bullet for all the cybersecurity ills that plague us today? Probably not, but we do believe it potentially is a big step forward in ensuring secure and legal transactions. There are several different “species” of cryptocurrencies, Bitcoin, Ethereum (Ethers), Ripple (not the wine), Litecoin, Monero, Dash, Augur and more. There are markets that trade in all of them and they all have value on the open market. Cryptocurrencies are not legal everywhere, but they are legal in the United States. On March 25, 2014, the United States Internal Revenue Service (IRS) ruled that Bitcoin will be treated as property for tax purposes as opposed to currency. In fact, for tax purposes, they are treated much like precious metals, such as gold. This ruling had the side benefit of confirming the legality of cryptocurrency in the United States. So, that was your primer on cryptocurrency. Now, we have to fire up our computers and “mine” some Bitcoin so we can buy more gadgets.
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February 2018
BENCH AND BAR IN THE NEWS This “members only” column is published each month to share news and information among KBA members. Submissions should be limited to 75 words and will be edited for space and other considerations. Email submissions to mwatson@knoxbar.org by the 10th of each month. 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.
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.
February 2018
Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 2,000 sq ft. Present floor plan accommodates four offices plus a conference room and a reception area. Would consider dividing space. One Level. Offices on either side occupied by long-term law firms. Two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.
OFFICE SPACE AVAILABLE: •
PARALEGAL ASSOCIATION The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, February 8, at 12:00 p.m. at the Blount Mansion Visitors Center, Knoxville, Tennessee. Kenneth W. Ward, Esq. of Trammell, Adkins & Ward, P.C., will be presenting a one hour program on Slip and Fall Plaintiff/Defense. A lunch buffet is available at the cost of $12/person with reservations. Please contact Caroline Sudlow, ACP, at president@ smparalegal.org or 865-215-3676 for additional information and/or lunch reservations. ONLINE LEGAL HISTORY VIDEOS 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
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2,870 sq ft 2nd floor office space with large reception area, 5 private offices, board room, two large work-rooms/ offices, common rest rooms & kitchen/ break room with one other tenant on the floor. Zoning C-3, Office Space Class B. Excellent high-visibility location with views of downtown Knoxville. Other tenants are a late-afternoon/evening youth music school downstairs (sound-isolated), and a single attorney. Ample parking and easy freeway access. An additional 1,500 sq ft of adjacent space is available if desired. Contact Frank Graffeo at 525-6806. Furnished office space available in West Knoxville. Convenient to I-40 and Downtown. Quiet atmosphere perfect for sole practitioner or mediator. Contact Dana Holloway at Holloway Law & Mediation Center. (865) 719-1644 or (865) 643-8725
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Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records: Janet S. Gurwitch 216 Country Club View Edwardsville, IL 62025 Ph: (865) 405-3352 cookieada75@gmail.com J. Douglas Overbey U.S. Attorney’s Office BPR #: 006711 800 Market Street, Suite 211 Knoxville, TN 37902-2342 Ph: (865) 545-4167 douglas.overbey@usdoj.gov Glen B. Rutherford BPR #: 004493 706 Walnut Street, Suite 800 Knoxville, TN 37902-2321 Ph: (865) 544-0550 grutherford@knoxlawyers.com
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Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System
PRO BONO PROJECT By: Kathryn Ellis Pro Bono Director Legal Aid of East Tennessee
Imagine for a moment that you are an upstanding member of the local bar who wants to help others in the community connect with the best resources to serve their legal needs. Then, imagine that I am an attorney who works for Legal Aid of East Tennessee (LAET) and works to help as many members of our community as possible attain access to justice. Hopefully, you’re not having too hard of a time imagining this so far! Now, imagine that we run into each other one afternoon in downtown Knoxville and have the following conversation: You: Kathryn, I’m so glad I ran into you! I’ve been meaning to call you. I wanted to see if my mother’s, brother’s, sister’s, cousin’s, auntie’s, Uncle Barney’s, father’s, brother’s, cousin from Killarney would qualify for LAET’s services. Me: It depends, have her call our main line at (865) 637-0484 and we’ll see if we can help her. You: Well, I don’t want her to bother your office if she doesn’t qualify. So, just tell me how much income she’s allowed to have and still qualify. Me: It depends, have her call our main line at (865) 637-0484 and we’ll see if we can help her. You: I know you’re all extremely busy and can’t serve everyone who qualifies, so I don’t even want to suggest that she calls you unless she qualifies. I’m trying to help you out by not sending her to you unless she qualifies. She earns $30,000 a year. Does she qualify? Me: It depends, have her call our main line at (865) 637-0484 and we’ll see if we can help her. I have had this basic conversation hundreds of times in the nearly six years I have been at LAET. So have our other attorneys and staff members. So, the odds are pretty good that you’ve asked the question at least once yourself. I promise you that we are not being difficult when we say, “it depends.” There are several factors we consider in determining whether or not someone qualifies for ourservices and without gathering all of the necessary information we cannot make that determination. At the very minimum, beyond standard conflicts, we have to consider whether the person is incomeeligible, whether the person is asset-eligible, what type of case the person needs help with, and what grants we currently have for the service county. Over the next couple months, I will discuss several of these factors. Because it is the most frequent question we receive, I’ll address incomeeligibility first. LAET must comply with the requirements of 45 C.F.R. § 1611, which addresses Financial Eligibility requirements for the Legal Services Corporation (LSC). If the household income is at 200% or more of the Federal Poverty Line (FPL), the potential client is not eligible for LSC-funded assistance. But, while approximately fifty-percent of LAET’s funding comes from LSC, we do have some grants that specifically allow us to serve clients even if their household income is more than 200% of the FPL. For example, one of these grants allows us to assist Knox County residents who are over the age of 60, even if they are not income-eligible under LSC regulations. Other grants allow us to assist victims of domestic violence, regardless of their income. So, when you ask us how much income someone can have and still qualify, it depends on, among other things, how large their household is, how old they are, what county they live in, and what type of case or legal issue they have. Another reason it is impossible to give a specific answer to the question of how : much a person can earn and qualify for the services of LAET is because there are certain expenses we can consider in “spending down“ a person’s income. For example, if a person earns $30,000 a year and has a household size of one, that person would be over 200% of * February 3 (9:00-12:00) – Knox County Saturday the FPL and would not be eligible for LSC funded services. If, however, that person lives Bar at LAET’s Knoxville Office in Knox County and is 65 years old, LAET may still be able to assist her, if the type of legal issue she has falls within the priorities of the grant that allows us to serve non* February 3 (9:30-12:30) – Debt Relief Clinic at the LSC-eligible seniors in Knox County. Public Defender’s CLO A person who earns $30,000 a year and has a household size of three, would be * February 14 (12:00-2:00) – Veterans Advice Clinic above 125% of FPL, but below 200%. In that case, we can consider monthly expenses at the Public Defender’s CLO such as rent/mortgage, health insurance premiums, medical co-pays, prescriptions, and
Mark Your Calendars
utility bills. Once those expenses are considered, they may have an adjusted percentage of poverty below 125% of the FPL and, therefore, be income-eligible. Keep in mind, the FPL changes every year. So, the bottom line is, it depends. If you believe someone needs legal help, always feel free to give them our number and we’ll see if they qualify for our services.
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February 17 (9:00-12:00) – Blount County Saturday Bar at LATE’s Blount County office
The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902 phone (865) 637-0484 e-mail:kellis@laet.org fax (865) 525-1162
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February 2018
Q: A:
THE LAST WORD
By: Jack H. (Nick) McCall How did you become a two-lawyer, East Tennessee duo? LAMONT BELK Attorney, Office of General Counsel, Tennessee Valley Authority, and Brooklyn Sawyers Belk Assistant U.S. Attorney, U.S. Attorney’s Office
A: Brooklyn & Lamont: Some people find their mates on Match.com or a friend-arranged blind date. Not us! That would have been too easy and too fast. Instead, we took the circuitous route around both the tree and Mulberry Bush to the nuanced world of public-sector government training. You never thought you’d read these words, but praise God for government training. Our paths first crossed almost a decade ago in the Palmetto State at a Department of Justice training event. Back then, we were both baby Assistant United States Attorneys in different districts, and states. As most work trainings go, we were about as thrilled and entertained as one watching paint dry, but found some solace sitting next to each other as two unsuspecting strangers discussing the mundane comings and goings of the ever-evolving world of federal prosecution. Like all work trainings filled with overworked, tired strangers, we were both ready to cease with the obligatory pleasantries, and get back to our real lives. That meeting ended as fast and uneventful as it started, and without a love connection. Lamont: But, as fortune would have it, our careers took us across the country and our paths crossed occasionally over the years. Unfortunately, as with many men, I did not see my good thing staring me in my face during those chance meetings over all of those many years. But eventually, when we saw each other in Missouri, the “Show Me State,” God did just that - He showed me - as Brooklyn likes to tease, that there is where my eyes were opened. She usually adds in some Damascus Road (a la Paul) conversion remarks that she finds hilarious (insert eye roll). We connected again at a CLE in St. Louis. There, for the first half of the week, I just watched Brooklyn work. If you have ever seen that, it is like watching Usain Bolt run in the Olympics, but more agile and better looking. She walks fast. She talks fast. I just watched and admired her from a distance. I enjoyed hearing her say, “Mr. Belk, do you need anything?”, as she worked as one of the CLE hosts at the time, and I’ll admit, I did not mind admiring her beauty and style. Before the week ended, we found ourselves convened in the corner of a dimly lit conference room. There, we had a surreal “boy meets girl encounter” that we now believe had been in the making for almost a decade. In the midst of normal conference hubbub, we had a conversation unlike many before. This time, we found common ground beyond our work, and saw a sparkle in each other’s eyes. In fact, during that conversation, we learned that we are both ordinary yet complex people. What started as an compulsory greeting turned into a three-hour conversation, during which we learned that we shared the same core faith tenants; career goals; family dreams; a dark sense of humor that most do not want to get; and a curious loyalty to Bank of America where we had both banked for more than 20 years. Everything she said about herself was true of me, and vice versa; peculiar for sure. Looking back, I think we had our first date then and there during the conference. Hours later, we finally parted paths - back to work, Brooklyn went - but we parted wondering whether we had unwittingly entertained our future mates. That led to our first “real date.” Again, at a DOJ CLE in Columbia, South Carolina, we connected. I chose the most romantic place I knew, “D’s Wings,” without consideration of the establishment’s quirky name. Brooklyn still laughs hysterically at the name, but I knew it as a local favorite. Quickly the humor shifted from my poor restaurant choice to how much Brooklyn enjoyed the food (which really mattered in my opinion). When she finally took a breath from devouring her plate of food - her favorite being the colossal fried seafood platter - she caught me staring. When she asked me why, my quizzical smile spilled over into hysterical laughter. I respectfully explained that the way she was eating surprised me. She responded, in her “keep it real, straight to the point” signature style, “It’s dinner. Am I not supposed to eat?” Until then, I knew she was beautiful, hardworking, smart, loved God, and so forth - all things that I care about - but I was not sure if she was really cool or had a sense of humor. I had only encountered Business Brooklyn until then. At that moment, her lighter side revealed, I knew that she was the one. Whether I would be able to feed her, I did not know, but I was convinced she was the one for me nonetheless. Brooklyn: Real funny. He’s a regular Fred Sanford. No wait. Lamont Sanford (think 1970s TV). I fell for Lamont right away. What’s not to love? He is handsome and I adore his beautiful eyes. He is kind. He is godly. He is a great provider. Plus, he’s occasionally funny, a decent dancer, and so-so card player. I could go on, but you get the point, he’s a real catch. Despite hooking a “big one” in the ever so shallow waters of the dating world for professionals, a woman, particularly a federal prosecutor, has to be cautious. Some might argue that until then I had taken that caution to the fullest extent. Not with Lamont, though. With Lamont, caution was out the door. He’s America’s Boy Scout. It is seldom if ever you even hear the man utter a curse word. Plus, I knew he had an FBI security clearance, renewed on a regular basis, in order to be an AUSA. If my FBI pals had any basis for excluding him from the DOJ, they would have, and our paths would have never crossed. With that in mind, my conspiracy theories of sinister plots vanished, and I moved forward - full speed ahead. Lamont: Like any man smitten in love, I wanted to be where Brooklyn was to start our lives together. I quickly made the transition from the DOJ world of taking a person’s liberty to the TVA world of battling over a person’s property (I am primarily a condemnation attorney now). All jokes aside, God removed the sometimes insurmountable career obstacles of finding suitable work for two attorneys in the same city at the same time. I came to Knoxville where my conversion to an EDTN VFL started immediately. By the way, how does an entire city wear the same color every game day I wondered? We are settled now. We love our home. Our kids have a routine. We’re adjunct teachers at the best law school around. Brooklyn promised to stop saying yes to every volunteer opportunity during her marriage vows, but she says it’s hard to say no to the disenfranchised, children, and KBA’s Marsha Watson. But I still hold out hope that maybe one day we will get our nights and weekends back. Brooklyn’s busy with board work and active with the bar and law school. I am busy with TVA and teaching. It is a lot, some might call it a cluster if they were in our home filled with plastic toys, diapers, Botany homework, law school work grading, board work discussions, on any given week night, but it works for us. We just take each task in turn, and divide and conquer. Somehow, we find time for church on Sunday mornings, our daughter’s high school activities, share family meals, and show up awake for work every day despite having a newborn. How does a two-lawyer duo fit it all in? Being the two old souls that we are, we use the outdated method that is seldom discussed in polite circles today. We talk. All day, every day, we talk. We use an old fashioned paper calendar and we budget our time (when Brooklyn is the one updating it, it is budgeted to the nanosecond). At the end of the day, it all boils down to one of three things: (1) we tackle the most pressing matters first: those that involve, blood, pay, and the heart; (2) we only say yes to obligations if the kids can go; or (3) one of us goes and the other stays behind with the kids and to deal with the other “stuff.” So you seldom see us out together. Whichever approach on a given day, the Sawyers Belk way works for us and can be summed up in one word: teamwork!
“The Last Word” column is coordinated by KBA Member Nick McCall. If you have an idea for a future column, please contact Nick at nick.mccall@gmail.com. February 2018 DICTA
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