DICTA.February 2017

Legal Update: Tennessee’s Test for Lesser Included Offenses Continues to Evolve . . . Page 11 Longwinded: To Be a Knoxville Lawyer . . . Page 23

A Monthly Publication of the Knoxville Bar Association | February 2017

TO EXCLUDE OR NOT TO EXCLUDE: THE TENNESSEE SUPREME COURT EXPANDS THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE

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DICTA

February 2017

In This Issue

Officers of the Knoxville Bar Association

Cover Story

President President Elect Amanda M. Busby Keith H. Burroughs

Treasurer Wynne du Mariau Caffey-Knight

Immediate Past President Wayne R. Kramer

Secretary Hanson Tipton

KBA Board of Governors Dwight Aarons E. Michael Brezina III Kathryn Ellis Stephen Ross Johnson Lisa J. Hall

Dana C. Holloway Rachel P. Hurt Mary D. Miller Carrie S. O’Rear Mitchell Panter

M. Samantha Parris Cheryl G. Rice John E. Winters

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Tammy Sharpe CLE & Sections Coordinator

Wendy Williams Membership & Operations Coordinator

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 Assistant

Volume 44, 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 subscriptions are available for $25 per year (11 issues) for non-KBA members.

February 2017

Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Executive Editor Executive Editor Editor

Cathy Shuck Chris W. McCarty Melissa B. Carrasco Lee Nutini

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

President’s Message

Giving Aid to East Tennessee

Practice Tips

Representing the Business Client Before Local Government: Challenges for Today’s Lawyer

Legal Update

Tennessee’s Test for Lesser

Included Offenses Continues to Evolve

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21

Marsha S. Watson Executive Director

To Exclude or Not to Exclude: The Tennessee Supreme Court Expands the Good Faith Exception to the Exclusionary Rule

Critical Focus

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The Knoxville Bar Association Staff

February 2017

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

Managing Editor Marsha Watson

KBA Executive Director

DICTA

Management Counsel: Law Practice 101

Succession Planning

Schooled in Ethics

ABA Issues Two Ethics Opinions On Fees

Conventional Wisdom 6

10

12

Hello My Name Is

Alex Brinson

Time Out

How Attorneys Decompress

Lawyer Hobbies

Straight to the Top with Jessica Burton

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23

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Life & Law in Harmony

Charting Your Course

Thankworthy

Just Answering a Letter

Lawyer’s Almanac

The Emancipation Proclamation

Well Read

Refuse the Easy Option

Long Winded

To Be a Knoxville Lawyer

Life Hacks

Getting Fit and Eating Healthy In 2017

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4 20 20 26 27 29 30 31

Bill & Phil’s Gadget of the Month

Tech Trends from CES 2017

Legal Mythbreakers

“Pleading Strict Proof ”

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

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event

EVENT CALENDAR & SECTION NOTICES

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

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

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

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

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

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

Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. Join members of the KBA Environmental Law Section for a section meeting on Tuesday, February 7, 2017. The meeting will be scheduled for 5:30 p.m. – 6:30 p.m. and will be held at the law offices of Butler, Vines & Babb, P.L.L.C. (2701 Kingston Pike). Refreshments will be provided. At this meeting we will take a few minutes to get to know one another and discuss possible CLE plans for 2017. If you are not able to join us for the section meeting but would like to know how you can get involved, please contact Section Chairs LeAnn Mynatt at lmynatt@bakerdonelson.com and Jimmy Wright at jwright@ bvblaw.com.

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).

Senior Section The next Senior Section luncheon will be held at 11:30 a.m. on March 8, 2016 at Calhoun’s on the River. Dave Jones, East Tennessee Division Manager with the Tennessee Department of Tourist Development will present the “10 Places You Must See in Tennessee”. If you have suggestions for speakers, please contact Chair Wayne Kline at 292-2307.

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

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calendar

February

n 6 Diversity in the Profession Committee n 6 ADR Section CLE n 7 Functions Committee n 8 Barristers Veterans Legal Advice Clinic n 8 Barristers Access to Justice Committee n 8 Barristers Executive Committee n 9 Judicial Committee n 9 Lunch & Learn n 13 Law Office Tech Committee n 14 Professionalism Committee n 15 Board of Governors Meeting n 16 Interprofessional Relations Committee n 21 Family Law Section CLE n 24 Real Estate Extended CLE

March n 6 ADR Section CLE n 6 Barristers Veterans Legal Advice Clinic n 8 Seniors Section n 8 Barristers Access to Justice Committee n 8 Barristers Executive Committee n 9 Judicial Committee n 9 Lunch & Learn n 13 Law Office Tech Committee n 14 Professionalism Committee n 22 Board of Governors Meeting n 23 Volunteer Breakfast n 28 CLE Committee

Mark Your Calendar Law Practice Today Expo April 6 & 7 Lawyerpalooza @ Scruffy City Hall April 27 February 2017

PRESIDENT’S MESSAGE By: Amanda M. Busby Anderson Busby PLLC

GIVING AID TO EAST TENNESSEE

A couple of weeks ago, I had the extraordinary experience of participating in a meeting to discuss the coordination of pro bono legal services efforts for victims of the wildfires in Sevier County, Tennessee.

The wildfires occurred from November 28, 2016, to December 9, 2016; lives were lost, people were injured, and hundreds of properties sustained damage that left many people without basic necessities. KBA Executive Director, Marsha Watson, and I attended the meeting on behalf of the KBA. It included, among others, representatives of Legal Aid of East Tennessee (LAET), the Sevier County Bar Association, the TBA and its Young Lawyers Division (YLD), the Tennessee Alliance for Legal Services (TALS), the YLD of the ABA, and community service organizations such as Rotary and the American Red Cross.

Due to the efforts of the legal services organizations in our state, Tennessee has a very well coordinated, impressive disaster preparedness plan to provide legal services to those impacted by disasters. Everyone living in our state, especially Tennessee attorneys, should be aware of these services. Tennessee’s disaster preparedness plan to provide pro bono legal assistance in the event of a disaster was borne in large part out of the unprecedented flooding that occurred in Nashville several years ago.

Tennessee’s legal services disaster preparedness plan can be implemented quickly in the wake of a disaster and it has been implemented in partnership with the Federal Emergency Management Agency (FEMA) to provide a free legal helpline, 1-844-HELP4TN, and legal advice clinics to victims of the Sevier County wildfires.

LAET has already held three free legal clinics for wildfire victims staffed by pro bono attorney and law student volunteers and is planning to host one or more additional clinics in February. Kathryn Ellis, Pro Bono Project Director for LAET, reports that as many as 70 East Tennessee attorneys, some of them living as far away as the Tri-Cities, have signed up to assist either with staffing at an upcoming legal aid clinic or by agreeing to take cases pro bono to assist wildfire victims that may not meet the income eligibility requirements for LAET. There are many victims that do not meet the income eligibility requirements for LAET, but who are still in great need of legal assistance and are not able to afford a lawyer. Ann Pruitt, Executive Director of TALS, said attorneys from all across Tennessee have agreed to man the TALS’ help line to answer wildfire-related legal questions. Wildfire victims not only need assistance securing FEMA benefits which currently have an application deadline of February 13, 2017, but also need assistance processing life, medical and property insurance claims, replacing Wills and other important legal documents destroyed in the fire, handling landlord/tenant issues, counseling on mortgage/foreclosure matters, etc.

The efforts of lawyers and law students to assist victims of the Sevier County wildfires show the volunteer spirit of our State’s legal community.

I am proud to be a Tennessee attorney and you should be proud to be one too. Not only does our legal community support pro bono in unusual circumstances like the Sevier County wildfire disaster, but attorneys across this state provide many hours of pro bono services annually. I do not believe lawyers as a whole do enough to make the public aware of how many hours of pro bono and “low-bono” legal services Tennessee attorneys provide. The most recent annual report from the Tennessee Supreme Court’s Access to Justice Commission, titled The 2015 Tennessee Pro Bono Report, states that Tennessee attorneys donated over 550,000 hours of pro bono legal services in Reporting Year 2015 valued at over $100 million.

Rule 6.1 of the Tennessee Rules of Professional Conduct states: A lawyer should aspire to render at least 50 hours of pro bono publico February 2017

legal services per year. In fulfilling this responsibility, the lawyer should: (a) provide a substantial portion of such services without fee or

expectation of fee to:

(1) persons of limited means; or

(2) charitable, religious, civic, community, governmental, and

educational organizations in matters that are designed

primarily to address the needs of persons of limited means; and (b) provide any additional services through:

(1)

delivery of legal services at no fee or at a substantially reduced fee to individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties, or public rights, or charitable religious, civic, community, governmental, and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate;

(2) delivery of legal services at a substantially reduced fee to

persons of limited means; or

(3) participation in activities for improving the law, the legal

system, or the legal profession. (c) In addition to providing pro bono publico legal services, a lawyer

should voluntarily contribute financial support to organizations that

provide legal services to persons of limited means.

Attorney reporting of pro bono hours in Tennessee is currently voluntary. The Tennessee Supreme Court is able to compile its annual pro bono report based upon information voluntarily submitted by Tennessee attorneys. To increase pro bono efforts statewide, the Tennessee Supreme Court has implemented a recognition program to honor attorneys as Attorneys for Justice who provide at least 50 hours of pro bono service annually. In order to be recognized, however, an attorney must either: (1) “check the box” on their Annual Registration Statement that reads: “I would like to have my reported pro bono hours submitted to the Supreme Court solely for the purpose of pro bono award recognition”; or (2) submit an application for recognition directly to the Administrative Office of the Courts (AOC). Law firms are also similarly honored if they have a sufficient number of attorneys in their firm meeting the annual, hourly criteria, and submit an application to the AOC.

If you are not currently doing at least 50 hours of pro bono services annually, I would encourage you to consider taking on additional pro bono work in 2017. If you are doing more than your 50 hours, thank you and keep up this important work. If you want a pro bono case to work on, consider calling Kathryn Ellis at LAET (865) 525-3425 and volunteering. There are people in our community that need your services.

Also, consider not only reporting your pro bono hours on your annual report this year, but consider checking the box to be recognized by the Tennessee Supreme Court for those hours. It is important that this work be recognized and celebrated. It is good for people in our communities to know what lawyers are doing year after year to make sure they have access to justice.

DICTA

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HELLO MY NAME IS

. . .

ALEX BRINSON

By: Katie Ogle McDonald, Levy & Taylor

As attorneys, we all have fellow members of the bar with whom we have worked that stand out as being congenial and respectful, all while representing and advocating for their clients. I think those of us who have worked with Alex Brinson would agree that he is one of those attorneys.

A native of the Halls community just outside of Knoxville, Alex graduated from Carson Newman University with a degree in political science and a minor in history. During college, Alex took an elective course in scuba diving, and has since become shipwreck, cave, and open water certified. He has also traveled to Belize a couple times to test his diving skills.

After graduating from college, he briefly joined the workforce before determining that law school was the best direction to take his career.

During law school, Alex was very involved in the Criminal Law Society and arranged for law students interested in this field to “ride along” with local law enforcement officers during duty hours. It was also during law school that he realized his true calling in the legal profession. Alex was awarded an internship with the Knox County Public Defender’s Community Law Office and found that the attorneys with whom he was placed made a profound impact on his feelings toward the law and client advocacy.

“I was placed in juvenile court with Christina Kleiser and David Gall. We had a minor client who had been charged with drug possession and they allowed me to work the case in its entirety from beginning to end. It was my first courtroom victory, and I’ll never forget the feeling or the intricate details of that case.” Alex also noted that working in this capacity truly instilled in him a passion for advocating for those who need it most and serving the indigent population in our community.

Following his graduation from law school, Alex continued very legal circle his passion of working to represent in which I’ve indigent clients and began taking been fortunate court appointments in all areas of enough to be included law, including criminal defense and Guardian ad litem cases. When asked has been the kindest, about other areas of law he would be most helpful group of interested in pursuing, Alex noted people. that working on civil rights issues had always been an interest of his, and that some of the most interesting cases he had ever been involved with were serving as a Guardian ad litem in juvenile court.

He also noted that he truly enjoys being a member of the Knoxville Bar and enjoys the camaraderie among its members. Upon being swornin as a newly practicing attorney, Alex thought that most lawyers would be adversarial, even outside of the courtroom. “Every legal circle in which I’ve been fortunate enough to be included has been the kindest, most helpful group of people.”

While his career over the last few years has been involved many different legal circles and has handled a significant breadth of legal representation, Alex is presently working at Legal Aid of East Tennessee handling divorces and orders of protection for the underserved population of the greater Knox County Area.

“Working at legal aid has been a wonderful experience,” he notes.

“There is so much at stake for every client, and a significant responsibility falls on your shoulders as the attorney to do the absolute best you can for everyone that you represent. It can be exhausting, but it is certainly rewarding.”

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Nearly all of his current cases involve some component of domestic violence, requiring Alex to often consider other resources his clients may require, in addition to obtaining a divorce. Fortunately, his colleagues at legal aid are also well-versed in their respective areas of law. In fact, Alex notes that this is one of the best parts of his current employment.

“Oftentimes our clientele will need the assistance of our divorce attorney, our consumer advocate, as well as the other resources that legal aid can provide. I have the opportunity to work with a great group of people who are all very passionate about whatever area they’re practicing.”

When not advocating for clients, Alex enjoys spending time with his wife, Hannah, and their nearly two-year-old daughter, Millie, who he notes is their greatest source of entertainment. Alex and Hannah also have a dachshund, “Sippy” and a medium sized mixed breed, “Gertie,” who also keep the attorney on his toes.

Even while juggling all the elements of his career and family life, Alex Brinson continues to be a zealous advocate for his clients, a diehard fan of Tennessee basketball, and a respected colleague by many in the Knoxville Bar. We appreciate his commitment, and taking time to provide an interview for this issue of DICTA.

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February 2017

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PRACTICE TIPS By: Joe Jarret University of Tennessee

REPRESENTING THE BUSINESS CLIENT BEFORE LOCAL GOVERNMENT: CHALLENGES FOR TODAY’S LAWYER “The most terrifying words in the English language are: ‘I’m from the government and I’m here to help!’”

Ronald Reagan Introduction:

Whether you are representing a start-up or an established business, understanding your clients’ obligations with regard to complying with state and local government laws and regulations is an essential part of your lawyer’s toolkit. Over the two plus decades I represented state and local government agencies, as well as private clients doing business with the aforementioned, I learned that many small business owners, and at times their lawyers, weren’t aware of the necessary permits and licenses needed to operate legally. Just getting a handle on state requirements can be a challenge; however, when you throw city and county laws into the mix, just finding the information you need to adequately advise your client becomes quite challenging. If there is one consistency among city and county rules and regulations it’s their inconsistency. Not only do business rules and regulations differ from county to county, but it is not uncommon to find profound differences between cities and the unincorporated part of the county in which they exist. Further, as cities and counties are, by statute, political subdivisions of the state, they have broad, reaching powers.

Rules of the Game:

In today’s digital age, it is natural to presume that all local government entities operate sophisticated websites that provide the general public with all rules, regulations, policies and procedures online and readily accessible at the stroke of a computer key. They don’t. No two public entities are alike, and while some do in fact put everything online as well as routinely update ot only do that which they publish, other entities put nothing online, and business rules and regulations are slow to update the policies and procedures they expect your differ from county to business client to follow. It is not at county, but it is not all unusual for local governments to maintain all of their purchasing, uncommon to find contracting, licensing, permitting, profound differences and other rules and regulations in between cities and the binders, and store those binders in unincorporated part of various offices throughout the city or the county in which they county as compared to one central location. Merely because city hall exist. and the county courthouse usually provide counter service five days per week doesn’t mean that those same services can be had online. It is not at all uncommon for an attorney to find her or himself standing in line to obtain an application, policy, rule, or procedure, and be charged a nominal (and in some cases substantial) fee in the process.

As to appearing before a local government board or committee, I

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have seen more than one hapless attorney appear at such public meetings under the mistaken presumption that the board or committee in question followed Robert’s Rules of Order, the Tennessee Rules of Procedure, or other established procedural rules, only to learn that the entity followed a set of rules of their own making, copies of which were unavailable come meeting time. Further, that minutes are recorded in long hand, the meeting untelevised, and your client’s right for redress or the process for appeal often unarticulated on the record. Finally, that comments, when permitted, are often limited to five and in some areas, three minutes.

Contracting:

There are two primary competitive contracting methods the government uses to purchase goods and services: sealed bidding and negotiation. The first method, sealed bidding, involves the issuance of an invitation for bid (IFB) by a procuring agency. Under the sealed bidding method, a contract is awarded to the responsive and responsible bidder whose bid conforms to the requirements of a solicitation that will be most advantageous to the government, considering price and the price(Continued on Page 9

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February 2017

PRACTICE TIPS (Continued from Page 8)

related factors included in the IFB. The second method, negotiation, involves issuing a request for proposal (RFP). The business with the best proposal in terms of technical content, best value, price and other factors generally is awarded the contract. The most common mistakes attorneys make when guiding their clients through the purchasing maze is the failure to inculcate in them the necessity that requisite forms are exactingly executed and timely filed. As to the latter, over the course of my career I have represented local government entities in five bid disputes filed by various business owners who were 13, nine, seven, 6, and 3 minutes late in their bid submissions. In each case, the court ruled for my client, not because of some legal wizardry on my part, but rather, because of our courts’ willingness to uphold the sanctity of local government purchasing and procurement policies. That is not to say, however, that if you represent an unsatisfied bidder that she or he lacks standing to challenge the award of a bid on grounds that the bid process was illegal in some manner. Tennessee courts have consistently held that contracts entered in violation of bidding statutes or ordinances are void, and a plaintiff need not demonstrate that the governmental authority acted in bad faith or that fraud was involved.1

Finally, contrary to popular belief, public entities are not required to accept the lowest bidder. They are merely required to accept the lowest “responsible” bidder, albeit courts do require the government to give a plausible reason for a rejection of the lowest bid.2 The lowest responsible bidder is generally considered by our courts to mean a qualified bidder with the lowest or best bid price, AND whose business and financial capabilities, past performance, and reputation meet the required standards.

Venue:

Permits & Licenses:

1 See Metropolitan Air Research Testing Authority, Inc. v. Metro. Government of Nashville & Davidson County, 842 S.W.2d 611 (Tenn. Ct. App. 1992) 2 See Owen of Georgia, Inc. v. Shelby County, 648 F.2d 1084, 1992 (6th Cir. 1981).

3 See §4-13, Knox County Charter entitled “Distance rules for the sale of beer for consumption on premises.”

4 See Article II, Section 29 of the Tennessee Constitution which states, in pertinent part, that the “credit of no County, city or town shall be given or loaned to in aid of any person, company, association or corporation.This constitutional provision is commonly referred to as the “lending-of-credit” clause. See Cleveland Surgery Ctr. v. Bradley Cnty. Mem’l Hosp., 30 S.W.3d 278, 284 (Tenn. 2000); McConnell v. City of Lebanon, 203 Tenn. 498, 505, 314 S.W.2d 12, 15 (Tenn. 1958).

Tennessee’s Local governments have incredible power when it comes to granting the various permits and licenses your clients need to stay in business. Once again, this is an area where there exist inconsistencies across entities. Take for example the issuance of beer permits. The state has delegated the issuances of licenses to sell beer, on or off premises, to cities and counties. Each city and county is empowered to set certain parameters associated with the issuance of such licenses. For instance, in the City of Knoxville, on-premise permits require establishments to maintain a minimum distance of 300 feet from any church, school, day care, hospital or funeral home. This information is clearly spelled out in the beer permit application that must be submitted (along with a fee) prior to the issuance of the permit. In Knox County, however, on-premise permits require establishments to maintain a minimum distance of 300 feet from any residential dwelling, school, or church. This information is NOT clearly spelled out in the beer permit application. In order to become aware of these distance requirements, your client would have to access the Knox County Charter.3

Most public entities require that, in the event of breach or dispute, venue for the resolution of same will lie within their specific jurisdiction.

For instance, if you are representing a corporation based out of Washington State, and your client’s standard form contact requires any disputes to be resolved in say the courts of King County, Seattle, chances are a Tennessee city or county will not agree to such an arrangement. I have seen more than one business consider the government’s refusal to litigate on the business’ home turf a deal-breaker.

Summary:

Doing business with local government does not have to an arduous, mysterious process, provided attorneys take the time to learn how the particular entity with which their clients desire to do business operates.

This can be accomplished by viewing the entity’s website, public access television (in those areas where public meetings are televised) sitting in on public meetings, conferring with experienced colleagues, and reading the various codes, ordinances, rules and regulations published and followed by the entity in question. Further, Tennessee’s liberation public records laws are invaluable when it comes to obtaining the various documents you’ll need to zealously represent your client, as are reviews of the minutes of previous meetings. By learning the rules of the game (both formal and informal), unique to local government practice, you go a long way in protecting the interests of your client.

Risk & Insurance:

Depending upon the type of contract your client wishes to negotiate with government, chances are the public sector’s attorney will require your client to hold the government harmless and as well as name the government as an additional named insured. Asking the government to hold your client harmless or otherwise indemnify a private business will most probably turn out to be an exercise in futility. Such an action is generally considered to be the unlawful giving or lending of the governments’ credit in aid of a private entity as it essentially requires the government to become indebted as a guarantor or endorser for the benefit of a private enterprise.4 February 2017

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TIME OUT By: Ann C. Short The Bosch Law Firm

HOW ATTORNEYS DECOMPRESS Nobody on their deathbed has ever said “ I wish I had spent more time at the office”.

Heard from Rabbi Harold Kushner; attributed by some to Senator Paul Tsongas.

subjectively as “wired”, jumpy, irritable - the “I can’t relax” experience.”

There is a difference between tension caused by events in the present, such as the events of the past week, and stored tension. Presentinduced tension usually responds to taking a few days off, a warm bath, or even pleasant social contact that encourages your nervous system to

Note to self. Next time I volunteer to participate in a project, show be restored to its natural balance. Discharging stored tension is a trickier up for the organizational meeting. Last year, I offered to participate feat, and through this column I hope we can learn from our colleagues, on the KBA Publications Committee. I was unable to attend the first methods that work for them in discharging both present-induced tension publication meeting and offered profuse apologies. That was just the and stored tension. beginning.

Although this column will explore “how” to decompress, I am going

Our Executive Director, Marsha Watson, then sent me an to leave you this month with a different question: “Why” should we email shortly afterwards asking me to coordinate a new column for decompress? And by “we,” I mean attorneys.

DICTA. She explained it to me as “showcasing the ways lawyers find to

The results of the very recent ABA/Hazelden study lend scientific decompress.” “Whether it is exotic trips, spa weekends, volunteering or credence to what many of us see, sense, or even experience personally something else,” it is a way “to let members know how important it is to from time to time. That is, the behavioral health of the legal profession take time away from their practice.” is basically “crappy” (my word, not the authors of the study). The

After I stopped laughing, I sent a return email to Marsha and prevalence of alcoholism, depression, stress, and anxiety among attorneys warned her that I was one of the least qualified people to tackle that surpasses that of other professional populations. topic. I can remember a time in my life, when my daughter was a toddler,

This landmark study has been made available courtesy of the Board that my idea of decompressing was of Professional Responsibility, in locking myself in the bathroom for 15 here is a difference between tension caused collaboration with the Tennessee minutes. Nowadays, decompressing Lawyers Assistance Program, the by events in the present, such as the events is just not a regular part of my Board of Law Examiners, and of the past week, and stored tension. life. I mentioned to Marsha that I the Continuing Legal Education frequently stop at the Brasserie for Commission; it appears in a an appetizer or dinner on my way 2016 Special Edition of Board home. I usually sit in the bar area with my MacBook Air open and work Notes. See https://s3.amazonaws.com/bpr_website/pdf_downloads/ on some legal problem while eating. Strangers and obnoxious patrons, I pdfs/000/000/129/original/Special_Board_Notes_FINAL. can attest, seldom interrupt my personal interlude. Another time, Scott pdf?1467314156. and Leslie Elmore ran into me at my neighborhood Ruby Tuesday (now

I highly recommend that everyone read this 2016 Special Edition of shuttered) while I was eating and reading a transcript of a guilty plea.

Board Notes. The Special Edition also contains excellent articles on what And, yes, I am one of those obsessive types who takes an iPhone and can be done and the Art of Practicing Wellness, which distills from the laptop into the bedroom every night.

ABA/Hazelden study four essential elements of wellness: (1) sleep/rest;

Marsha agreed that she too struggled with finding ways to (2) emotional/social connections; (3) physical activity; and (4) nutrition. decompress, so we are hoping that this column can assist both of us and Incorporating small changes into each day can make a big difference, other KBA members. The plan is that I will reach out to various KBA as one of the articles notes: “an apple instead of a candy bar (or maybe members throughout the year and persuade them to share with the just a smaller candy bar…), a 10-minute nap or mindful meditation in membership through this column their strategies for decompressing. So, the afternoon, a mid-day walk in the sunshine, or a brief but meaningful don’t duck my calls, folks, please . . . pretty please. question for your colleague like ‘What was your favorite part of today?’”2

So, what do I mean by decompressing? Karen Caffrey, who specializes in counseling lawyers, offered in one of her articles,1 at least 1 http://ezinearticles.com/?Why-Cant-Lawyers-Relax?---And-How-They-Can&id= for me, a fundamental and intuitive explanation. She writes, “Like 2022255 all mammals, human beings are biologically designed to identify and 2 Tracy Kane, Partner, Dodson, Parker, Behm & Capparella, P.C., Unwell – Lawyers and the respond to threats (also known as stress), take appropriate defensive Art of Practicing Wellness (2016). action, survive (hopefully!), then recover and return to a resilient state.”

This process, however, can go awry. “Typically this occurs,” she writes, “when we have been activated, but . . . we have not been able to discharge the energy that was charged up in response to the stress.” On this front, we tend to be our own worst enemies – and I wholeheartedly agree.

Caffrey posits, “What happens if over time, these discharge reactions are repeatedly thwarted? They build up inside. And we become more and more tense - holding places of tension that we experience

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February 2017

L E G A L U P DAT E

TENNESSEE’S TEST FOR LESSER INCLUDED OFFENSES CONTINUES TO EVOLVE

The concept of a lesser included offense seems simple enough: it refers to a crime that shares some of the elements of a more serious crime and typically is in the same class or category.1 However, determining when a crime qualifies as a lesser included offense has proved a vexing issue in Tennessee jurisprudence. The Tennessee Supreme Court’s recent decision in State v. Howard2 provided clarification by reconciling the statutory test for lesser included offenses in Tennessee Code Annotated section 40-18-110(f ) (2012) with the common law test established in State v. Burns.3 The Common Law Formulation

The practice of allowing juries to convict on lesser included offenses serves a dual purpose – it aids the prosecution when proof is lacking as to a charged crime, and it benefits defendants by “afford[ing] the jury a less dramatic alternative than the choice between conviction of the offense charged and acquittal.”4 Tennessee law has long required trial courts to instruct the jury on any lesser included offense of a charged crime, provided the proof is sufficient for a rational juror to find the defendant guilty of the lesser included offense.5

Beginning in the 1970s, Tennessee courts experimented with several approaches to defining lesser included offenses, each of which proved unsatisfactory.6 In 1999, the Tennessee Supreme Court revisited the topic in State v. Burns, holding that a crime is a lesser included offense if: (a) all of its statutory elements are included within the statutory elements of the offense charged; or (b) it fails to meet the definition in part (a) only in the respect that it contains a statutory element or elements establishing (1) a different mental state indicating a lesser kind of culpability; and/or (2) a less serious harm or risk of harm to the same person, property or public interest; or (c) it consists of (1) facilitation of the offense charged or of an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or (2) an attempt to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or (3) solicitation to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b).7 Apart from this test, the court added that the General Assembly has the authority to designate a specific crime as a lesser included offense of another crime.8 The Statutory Definition

Ten years after Burns, in 2009, the General Assembly enacted Tennessee Code Annotated section 40-18-110(f ), which provides that a crime is a lesser included offense if: (1) All of its statutory elements are included within the statutory elements of the offense charged; (2) The offense is facilitation of the offense charged or of an offense that otherwise meets the definition of lesser included offense in subdivision (f )(1); (3) The offense is an attempt to commit the offense charged or an offense that otherwise meets the definition of lesser included offense in subdivision (f )(1); or (4) The offense is solicitation to commit the offense charged or an offense that otherwise meets the definition of lesser included offense in subdivision (f )(1).9

The statutory definition codified parts (a) and (c) of the Burns test,

February 2017

By: William Gill LMU Duncan School of Law

but it omitted part (b) – the part of the test covering offenses with an additional element indicative of a lesser mental state or a less serious risk of harm. Although legislators commented that the purpose of the provision was to resolve confusion,10 the legislative record is silent as to precisely what the statutory definition intended to clarify or why it omitted part (b) of the Burns test.

In State v. Ortega, the Court of Criminal Appeals ruled that the General Assembly had abrogated part (b) of the Burns test by intentionally omitting it from section 40-18-110(f ).11 Accordingly, the court held that aggravated sexual battery, a crime previously recognized as a lesser included offense of rape of a child under Burns part (b), no longer qualified as such.12 The court predicted that its holding would “significantly reduce[] the number of lesser included offenses a trial court will be required to charge.”13 The court reduced Ortega’s conviction for aggravated sexual battery to child abuse,14 and neither party sought to appeal the case to the Tennessee Supreme Court.

State v. Howard Like Ortega, Howard involved a defendant convicted of aggravated sexual battery as a lesser included offense of rape of a child.15 The Court of Criminal Appeals vacated the conviction for aggravated sexual battery based on the legislative abrogation of Burns part (b).16 The Tennessee Supreme Court reversed, holding that part (b) of the Burns test had survived the enactment of section 40-18-110(f ).17 The court invoked the canon of statutory construction providing that “new statutes change pre-existing law only to the extent expressly declared.”18 In this instance, the statute did not “expressly” negate Burns part (b).19 Moreover, because of the ambiguity created by section 40-18-110(f ), the court looked to the statute’s legislative history. The court found no indication that the legislature had intended to eliminate Burns part (b); to the contrary, the house bill’s sponsor, Representative Kent Coleman, had assured house members that the Burns test would remain in effect in “certain cases,” which the court interpreted as a reference to “the ‘part (b)’ cases that would not fall within the purview of [section 40-18-110(f )].”20 Accordingly, the court reestablished aggravated sexual battery as a lesser included offense of rape of a child and reinstated the defendant’s conviction.21

In effect, Howard restored the test for lesser included offenses used before the enactment of section 40 18 110(f ). In a broader sense, Howard stands for the principle that Tennessee law disfavors legislative modification of the common law by implication. As a result, litigants should not expect courts to hold that a statute has changed the common law absent express statutory language to that effect.

Cognate Offense, Black’s Law Dictionary (10th ed. 2014).

No. E2014-01510-SC-R11-CD, 2016 WL 5933430 (Tenn. Oct. 12, 2016).

6 S.W.3d 453, 466-67 (Tenn. 1999).

4 Beck v. Alabama, 447 U.S. 625, 633 (1980).

5 See, e.g., Strader v. State, 362 S.W.2d 224, 228 (Tenn. 1962); see also Tenn. Code Ann. § 40-18-110(a).

6 See generally State v. Dominy, 6 S.W.3d 472, 476-78 (Tenn. 1999) (describing the test for lesser included offenses then in effect as “unworkable”); State v. Trusty, 919 S.W.2d 305, 310-11 (Tenn. 1996) (expanding the definition of lesser included offenses to include any crime of a “lesser grade or class” of a charged offense), overruled by Dominy, 6 S.W.3d at 477; Howard v. State, 578 S.W.2d 83, 84-85 (Tenn. 1979) (adopting the “statutory elements” test for identifying lesser included offenses).

7 6 S.W.3d at 466-67. The test adopted in Burns is a modified version of the approach in the Model Penal Code. Id. at 477 (quoting Model Penal Code § 1.07(4) (1980)).

8 Id. at 467 n.12.

9 Id. 10 See, e.g., Hearing on H.B. 588 Before the H. Calendar and Rules Comm., 2009 Leg., 106th Sess. (Tenn. 2009) (statement of Rep. Kent Coleman, Member, H. Judiciary Criminal Practice and Procedure Subcomm.) (“[This bill is] an effort to clarify which items must be included in lesser offenses when instructing the jury. It’s an effort to clarify a question that exists under the current law.”); Hearing on S.B. 783 Before the S. Judiciary Comm., 2009 Leg., 106th Sess. (Tenn. 2009) (statement of Sen. Doug Overbey, Secretary, S. (Continued on Page 12) 1 2 3

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LAWYER HOBBIES By: Katie Ogle McDonald, Levy & Taylor

STRAIGHT TO THE TOP WITH JESSICA BURTON

Not only has Jessica Burton had the opportunity to travel to Switzerland, France, and Machu Picchu, but she’s certainly captured the best views in each of these travel destinations. After suffering a spinal injury when playing Australian rules football a few years ago, a rehabilitation therapist suggested that she try yoga to assist in her recovery.

“I’ve always been pretty athletic, as I played lacrosse in high school and college at the University of Chicago, and honestly, yoga just wasn’t interesting enough on its own.” Jessica noted that she had a few friends who regularly went rock climbing, so she began joining them on their outings.

On one of these excursions, Jessica recalls that she and her group were caught in an avalanche and spent the night on a ledge, as they were unable to track their route to continue up the mountain. “The ledge was only wide enough for the three of us to lie next to each other, so that was how we spent the night,” recalls the Knoxville attorney. “The next morning, it was really interesting because we were able to see what the avalanche had uncovered. We couldn’t get close enough to really inspect them, but we were able to see two wooden snow skis and a wool mitten that had obviously been preserved for many years.”

Jessica explained that there are several different types of rock climbing, all of which require different equipment. With mountaineering and ice climbing, one will require ice screws to bolt themselves to the icy wall. In this method, a climber must be extremely cautious in choosing the location of a bolt and ensuring the placement is secure enough to hold their weight. Ideal conditions for ice climbing include significant amounts of shade, and obviously, the colder the better.

Locally, the most popular types of climbing include bouldering, sport climbing, and TRAD climbing. For Jessica, sport climbing has become her favorite way to flex her climbing muscles. In this particular type of climbing, there are metal bolts already placed into the rock by a climber who has scaled that particular route before. Many routes can be found in local climbing guidebooks and will identify the specific location of a bolt. Climbers then place a “draw” at these bolts and upon reaching each draw, slide their rope securely through the draw. Guidebooks will commonly identify the number of bolts in a “pitch,” which is the length of a rope, so climbers are able to plan the length of rope necessary for a particular climb.

In our area, there are many places that are ideal for sport climbing.

Obed Wild and Scenic River in Wartburg, Tennessee is known nationwide for its more than 350 pre bolted sport climbing courses.

The Obed’s cliffs are especially well known for being “steep,” which in climber’s lingo means that they often lean back beyond vertical and become overhanging. In an area known as “Tierrany,” climbers scale an inverted staircase of colorful, uniquely featured sandstone until they seem to hang directly over the rapids of the Obed River.

Jessica notes that sport climbing is a great way for a beginner climber to test their skills to determine if it’s a sport for them. “Here in Knoxville there are a couple great indoor sport walls to test your skills,”

LEGAL UPDATE

Jessica overlooks Machu Picchu after reaching the summit.

Jessica has also visited France with a group that climbed several mountains there.

(Continued from page 11)

Judiciary Comm.) (“[T]his bill is brought to clear up what is a lesser-included offense.”).

11 No. M2014-01042-CCA-R3-CD, 2015 WL 1870095, at *8 (Tenn. Crim. App. Apr. 23, 2015), abrogated by Howard, 2016 WL 5933430, at *6; accord State v. Howard, No. E2014-01510-CCA-R3-CD, 2015 WL 4626860, at *15 (Tenn. Crim. App. Aug. 4, 2015), rev’d in part, 2016 WL 5933430, at *18; State v. Corbitt, No. W2015-01834-CCA-R3-CD, 2016 WL 3952017, at *7 (Tenn. Crim. App. July 19, 2016), remanded for reconsideration (Tenn. Oct. 20, 2016). But see State v. Isabell, No. W2013-00435-CCA-R3-CD, 2014 WL 3744580, at *16 (Tenn. Crim. App. July 28, 2014) (“[T]he statute does not expressly abrogate Burns part (b).”), designated “Not for Citation” (Tenn. Oct. 17, 2014).

12 2015 WL 1870095, at *10.

13 Id.

12

explains Jessica, “OnSight Rock Gym and River Sports Outfitters both have great facilities and knowledgeable staff to help prepare a new climber to hit the outdoors.” If one enjoys rock climbing, the basic purchases are a harness, shoes, and a chalk bag. After that, you can invest as much in this hobby as you can afford. Since rock climbing will be a sport in the next Olympics, Knoxville attorneys are encouraged to start training now. While Jessica doesn’t anticipate we’ll see her at the games, she does plan on continuing her climbing hobby for years to come and is happy to serve as a resource for any local attorneys who want to become involved in the sport.

Id. at *8.

2016 WL 5933430, at *3. The defendant had also been convicted of another count of aggravated sexual battery and four counts of rape of a child. Id. 16 Id. 17 Id. at *6.

18 Id. (quoting Johnson v. Hopkins, 432 S.W.3d 840, 848 (Tenn. 2013)).

19 Id. 20 Id. at *8-9.

21 Id. at *10. Effective July 1, 2016, the General Assembly amended Tennessee Code Annotated section 40-18-110(g)(3) by specifically designating aggravated sexual battery as a lesser included offense of rape of a child.

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February 2017

MANAGEMENT COUNSEL: LAW OFFICE 101 By: Fiona F. Hill Ramsey Hill, LLC

SUCCESSION PLANNING

As a solo or small firm practitioner have you ever pondered whether your professional house in is order? As we transition into 2017, personal resolutions are abundant, but work related resolutions take planning and effort to implement. Last year, attorney Jack W. Piper, Jr. collapsed and died without warning at age 56. Jack died far too young and without a succession plan for his solo law practice. My law partner, Tom R. Ramsey, III and I were renting office space from Jack, but were not positioned to assume his practice, as he was truly a Jack of all trades and we practice estate planning and probate.

So how should one create a successful plan to exit the practice of law whether voluntarily or unexpectedly? Lawyers within small firms or solo practitioners often practice independently and no other lawyers may have knowledge of their cases or clients. However, all firms should formulate an action plan which considers the following: (1) What support is needed from the firm or staff to ensure a smooth transition into retirement? (2) What attributes, experience, skills and knowledge does your successor need to possess? (3) Does your successor need further development, training, coaching or mentoring? (4) Finally, if you don’t have a successor in mind, then it’s time to determine a strategy and a timeline in which to find and develop one.

When planning an exit from private practice, first inform your trusted staff. Their support and assistance will be crucial and they deserve to know your intentions, not just for your future, but for theirs as well. They need assurance that they will have job security at least until a date certain. Think about other lawyers who may wish to hire your staff.

Be prepared to initiate contacts and provide references as this can be an uncertain transition for them as well.

Secondly, determine f you don’t have a which client files can be successor in mind, completed and which clients need to be notified of your then it’s time to impending departure. To determine a strategy and a do this you must compile a detailed list of all clients and timeline in which to find and open matters and answer the develop one. following questions for each file: 1. What is the current status? Document what remains to be done.

2. Can the matter be completed before your exit? If so, establish a timeline for finishing the work. Ideally, complete as many active files as possible. However, if the file cannot be completed, inform your client and provide them with recommendations for a new attorney along with contact information and adequate time to retain a new attorney and meet any pending deadlines. Long term clients in particular deserve to hear about your exit from you directly, either in person or by phone.

3. What type of fee agreement is involved? If you’re handling the matter on an hourly basis, make every effort to collect on the fees you’ve earned to date. Clients may be less likely to pay if they know you won’t be around to oversee collections of your accounts receivable. If your fees are on a contingency basis, what arrangements will need to be made for you to be compensated

...i

4.

for the work you’ve done to date if another lawyer is going to be taking over the file? These issues need to be dealt with whether you’re exiting a solo practice or transitioning out of a firm. Finally, if you’re billing on a retainer, you may need to refund money to a client or get permission from the client to forward the balance of the retainer to the client’s new attorney.

How will you address the funds held in a trust account? You need to reconcile the account and determine whether the funds correspond to a client for whom work is being completed or if they are earmarked for a client. Once the account is reconciled, prepare and send final client bills. In accordance with your fee agreement, disburse money owed to you for earned fees and reimbursement for costs advanced. Disburse client funds to the client. Or, if the client is going to a new lawyer and the trust account funds are going to be transferred to the new firm, then make the check payable to both the client and the new firm. Keep all records explaining the transactions.

Other things to consider: 1. Review your office and equipment leases. Negotiate an early termination or a sublease of your office space or equipment. If subleasing, selling or donating equipment, permanently delete any client information that is stored on any electronic devices. Save all client files on an external hard drive.

2. Plan for termination of utilities and office services such as internet, email, and website and determine notifications that need to be made regarding your exit.

3. Arrange for file storage. TBA’s suggested period for retention of most files is 10 years.

4. Continue legal malpractice coverage and tail coverage for any malpractice claims that may arise after you’ve stopped practicing.

5. Focus on collecting your account receivables and notify those clients with outstanding account balances of your forwarding address and phone number.

6. Prepare final billing statements and prepare memos of the status of ongoing files for existing clients and give clients their files.

7. Meet with your accountant and finalize the accounting for your practice.

8. Notify professional organizations and cancel memberships and office subscriptions.

9. Arrange for health insurance.

10. Stop automatic payments charged on a firm credit card or account.

11. Arrange for mail and telephone call forwarding.

12. After any audits are completed, close your bank and trust accounts.

For additional information, the TBA has developed a great handbook of sample forms regarding succession planning which I encourage all attorneys to review in preparing your own succession plan1 1 TBA Handbook: Materials & Forms Relating to Planning/ Providing for an Orderly Transition before Sudden Death, Disability or Incapacity Arises, May 19, 2014. www.tba.org/solo-practice/succession-planning

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.

February 2017

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LIFE AND LAW IN HARMONY By: Leslie L. Beale, Profusion Strategies

JD

CHARTING YOUR COURSE

“If you don’t know where you’re going, any road will get you there.” – The Cheshire Cat, Alice in Wonderland

If you don’t know where you want to go, it’s difficult to get there.

It seems so simple, but every day I talk to professionals who want to make a change in their career or lives, but aren’t clear on what their ultimate goal is. That’s a recipe for a lot of wasted time and frustration.

To build a career and life that are fulfilling, you need to start with One Big Goal. Your One Big Goal is the overall outcome of your life – what you want people to say about you when you’re gone. How do you find your own One Big Goal?

Know Yourself.

T

o know where we

As we go through school really want to go, and begin our careers, we get however, we have to very outcome focused. Take the class, make the grade. Pass the slow down and take time to exam. Get the degree, then the find out who we are. job.

To know where we really want to go, however, we have to slow down and take time to find out who we are. We must pay attention to our likes, motivators, and special gifts.

To do that, we need to really tune in.

Start by simply getting curious. You can’t be focused on judging or criticizing yourself. You can’t be worried about how you don’t measure up, or what you want to improve. Instead, just see what is there. This task is especially tough for goal-oriented high-achievers. We’re used to always improving, looking for ways to be better, to do more. But that’s not the goal here, so take a deep breath and pay attention.

Now, take note of the things you appreciate about yourself. It’s harder than it seems. Don’t believe me? Try it. Make a list of twenty things you appreciate about yourself. Not things you think will make you successful, not things someone else has told you are good about you – what you appreciate. They can be big or small, as long as they are something you like about yourself.

Know what you want, and why.

Now that you’re paying attention, begin to ask what you want. What do you want more of in your life? What do you want less of?

After you’re clear on what you want, ask why you want it. Here’s where the real magic happens. If you want something because it will make you feel happier or more secure, you aren’t setting a goal. You are running – from insecurity, from doubt, from unhappiness. In the end, these goals will fall flat.

The same is true for goals meant to please other people. Achieving a goal in your own life won’t make someone else feel a certain way – no matter what they tell you!

But, if you can say that you want something because you think it would allow you to contribute to the world, or to love your family better, or any other reason that comes from a place of peace and contentment, you’re on the right track.

you appreciate your love of children? Did you list volunteering with kids as a want? That’s a theme. Love spending time alone and want a job in a research field? Theme. These are hints to your One Big Goal.

Write It Down and Let It Breathe.

Put a working version of your One Big Goal down on paper. It will be less specific than a short-term goal, and that’s okay. It’s an overarching mission for your life, so it needs to be flexible.

Once you have something on paper, look at it every day. Live with it. If it doesn’t quite get there, tweak it. If it does, great. Over time it will morph and grow with you, but keeping it in front of you helps you stay on your own true path.

Look for Themes.

Armed with the list of things you appreciate about yourself and the list of what you want in life, start to look for themes. For instance, do

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February 2017

THANKWORTHY By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.

JUST ANSWERING A LETTER

Exactly fifty years ago, a young attorney was preparing to argue his first case before the United States Supreme Court. He had graduated from law school only three years before and had spent the majority of those three years working on a single criminal case.1

The amount of time the lawyer had spent on this particular case was unusual. After all, it wasn’t a capital case. In fact, the two defendants pleaded guilty, and for their crimes, they received the minimum sentence—one year’s incarceration. The judge had gone even further and suspended the sentence. Of course, the suspension was contingent upon the defendants leaving the state for twenty-five years, but in the 1960’s, courts could be creative, and really if people insisted on breaking state law, why would you want them to stick around?2

The defendants dutifully moved out of state. But, they were a bit homesick. They knew they couldn’t move back home. Their convictions prevented that. They just wanted to be able to go home once in a while.

They needed an attorney. So, one of the defendants wrote a letter: Dear Sir, I am writing to you concerning a problem we have.

My husband and I were married here in the District. We then returned to Va. to live. My husband is White. I am part negro and part Indian.3 The letter explained that they did not know their marriage was illegal at the time they got married. They weren’t asking much. “We know we can’t live there, but we would like to go back once and a while to visit our families and friends.”4

The letter made it into the hands of two volunteer attorneys – ages 29 and 30 – working in a cramped office: “My desk was half the size of this table. I sat on [one] side, and [legal assistant] Joe Goldberg sat on [the opposite] side. If I slid my chair back, I hit the wall. If he slid his chair back, he hit the wall. It was an oversize desk/closet.”5 One had graduated from law school only a month earlier.6

It was close quarters, but, they took the case anyways. They filed a Motion to Vacate the Judgment. That seemed like the simplest way to get the defendants home. The judge denied the Motion. The state Supreme Court affirmed. So, they filed their writ of certiorari and took the issue to the United States Supreme Court. The Supreme Court granted their writ, and they were on their way to the big time.

By April 1967, the time for preparation was over; it was time for oral arguments. One of the attorneys remembered it this way.

But first, it’s a little confusing: You’re not sure where to sign in – it’s a big building – [or] where your coat goes. Say goodbye to Mom and dad; just go get in that line. And you get a quill the first time – a pen quill.

The two attorneys split the oral argument. It was them against a very seasoned litigator who had represented the state in multiple, high-profile cases.7

For almost three months, they waited. Then, on June 12, 1967, they received a Western Union telegram from the Clerk:

February 2017

JUDGMENT LOVING against VIRGINIA REVERSED today. Opinion mailed. Advise associates.

John F. Davis, Clerk8 And with that, state laws prohibiting inter-racial marriages were declared unconstitutional. Even better, Mildred and Richard Loving could go home.

Thirty-one years later, a young couple appeared at the Court Clerk’s office in Lynchburg, Virginia. They wanted to apply for a marriage license. He hailed from the heart of South America, with olive skin, black hair and eyes the color of dark chocolate. She was from the heart of the South – rural North Carolina to be precise – and was as blondhaired, blue eyed, and pale skinned as they come.

Between her southern drawl and his heavily accented English, they didn’t quite fit in the heart of central Virginia even in the late 90’s.

People didn’t think twice about taking a second or third look when they held hands in the mall. It wasn’t at all unusual for sales clerks and cashiers to speak only to her, until they realized he too had an opinion and a voice. Years later, after she gave birth to their first son, fellow shoppers would stop her in the grocery store to make silly faces at the baby and then comment about how nice it was that she had adopted him.

But, that is getting ahead of the story. When this couple applied for a marriage license, that is all they had to do. They filled out the form, paid the $30.00 fee, and headed out the door. The Clerk didn’t ask why they wanted to get married or act like it was unusual at all. She treated them like any other couple who wanted to get a marriage license.

For that courtesy, my husband and I have Philip Hirschkop and Bernard Cohen to thank. These two young attorneys answered a letter from Mildred Loving and found a way for Mildred and Richard, and other couples of difference races, to be able to go home, even if it took a trip to the United States Supreme Court to get there. That is why, in my opinion, these two attorneys are thankworthy.

1 Randy Maniloff, Philip Hirschkop: Quietly Making Noise for 50 Years, Law360 (Dec. 7, 2016), https://www.law360.com/banking/articles/869610/philip-hirschkop-quietlymaking-noise-for-50-years.

2 Deneen L. Brown, A Longtime Love for Civil Rights, The Washington Post, (Dec. 10, 2016), available at http://www.islandpacket.com/news/nation-world/national/ article120224913.html.

3 Id. 4 Id.; Susan Dominus, Mildred, NY Times (Dec. 23, 2008), available at http://www.nytimes. com/2008/12/28/magazine/28loving-t.html.

5 Hillary Kelly, The Loving Story, The Washingtonian (Nov. 2, 2016), available at https:// www.washingtonian.com/2016/11/02/virginia-case-legalized-interracial-marriage-theloving-story.

6 Maniloff, https://www.law360.com/banking/articles/869610/philip-hirschkop-quietlymaking-noise-for-50-years.

7 Jeff E. Schapiro, Robert McIlwaine, Figure in Court Fights over Race, Dies at 90, Richmond Times-Dispatch (Feb. 25, 2015), http://www.richmond.com/obituaries/featured/ article_2ddb9490-8ce4-5d0d-802a-f7ec3b53d6f6.html.

8 Kelly, https://www.washingtonian.com/2016/11/02/virginia-case-legalized-interracialmarriage-the-loving-story; see also Loving v. Virginia, 388 U.S. 1 (1967).

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TO EXCLUDE OR NOT TO EXCLUDE: THE TENNESSEE SUPREME COURT EXPANDS THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE

Little did Dollree Mapp realize, when she grabbed a “fake” search warrant from Cleveland, Ohio police officers entering her home in 1957, that the U.S. Supreme Court would use her case to craft a remedy for Fourth Amendment violations. The exclusionary rule was created to deter police misconduct and exclude illegally seized evidence from use at trial.

However, ever since Mapp v. Ohio1 was decided, the exclusionary rule has been under attack. The U.S. Supreme Court slowly began to create exceptions, e.g., the independent source doctrine, the inevitable discovery rule, the attenuation principle, the Leon2 good faith exception, the knock and announce exception, and an exception if the officer has made a reasonable mistake of fact or law. Thus, the exclusionary rule no longer automatically excludes evidence that was illegally obtained.

If you find all the exclusionary rule exceptions and exceptions to the exceptions confusing, you are not alone. States have decided for themselves which exceptions to adopt. A state supreme court, interpreting and applying its own constitution, may provide greater protection (essentially “more due process”) to its citizens and reject the U.S. Supreme Court’s ruling under the identical fact scenario as long as it has an independent and adequate state law on which to base its divergent decision.

In the past, the Tennessee Supreme Court has applied the exclusionary rule unless the independent source3 or attenuation principle4 applies. In 2011, the Tennessee General Assembly passed a statutory good-faith exception to the exclusionary rule (“ERRA”).5 The statute protects against the suppression of evidence if there has been a “good faith mistake” or a technical (“clerical”) violation made by a judge, magistrate, clerk, or an officer who served the warrant but who was not the one who originally obtained the warrant.6

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State v. Reynolds7

The ERRA can only be applied in situations where the officer has a warrant and not where an officer makes a warrantless stop, search, and seizure. That was the law when Corrin Reynolds and Deputy Strzelecki met on October 29, 2011. Strzelecki, a member of the Knox County Sheriff ’s Department crash reconstruction team, arrived at UT Medical Center after learning of a single vehicle incident in which two occupants of the vehicle died and two others, including the driver (Reynolds), were injured. Strzelecki found Reynolds lying on a gurney in the emergency room. According to Strzelecki, Reynolds stated that she had been driving and everyone in the car had been drinking. The officer administered the horizontal gaze nystagmus (“HGN”) test,8 found that Reynolds exhibited six clues of intoxication, and asked if she would submit to the taking of a blood sample.

She stated, “Do whatever you have to do.”

Strzelecki took this as verbal consent and had a hospital phlebotomist draw two vials of blood from her arm.

At a suppression hearing, Reynolds’ attorney argued Reynolds did not give voluntary consent for the warrantless blood draw because her hearing was impaired; moreover, she had no recollection of speaking to Strzelecki because she had received morphine and Versed following the accident.

The trial court disagreed and found Reynolds had consented. But, at a second suppression hearing, the trial court judge changed his mind after Strzelecki testified again. The trial court found that because the only actual statement made by Reynolds was “[d]o whatever you have to do,” and she non-verbally indicated she was the driver, she more than likely did not understand what she was being asked when the officer requested a blood sample. Thus, Reynolds did not provide actual consent for the

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blood draw. Because Strzelecki lacked probable cause to believe she was driving under the influence, the implied consent statute would not permit a warrantless blood draw either.9

The Court of Criminal Appeals agreed Reynolds had not given actual consent, but found Strzelecki had probable cause to believe Reynolds was driving under the influence of alcohol, which would then allow for a warrantless blood draw under the implied consent statute. However, anticipating the possibility the Supreme Court might rule the implied consent law unconstitutional, the intermediate appellate court suggested the Court consider adopting the good faith exception to the exclusionary rule under Davis v. United States.10 This was relevant because Strzelecki acted in good faith and did not know the implied consent laws could later be found unconstitutional.

Despite the fact Strzelecki did not rely on the implied consent law to draw Reynolds’ blood and the Supreme Court declined to determine whether the implied consent law was constitutional, a majority of the Court decided in a 3-1 decision to extend the good-faith exception beyond the ERRA and have it apply in non-warrant situations when the police officer follows binding appellate precedent at the time of the seizure.

The majority opinion, written by Justice Connie Clark, pointed out that the exclusionary rule is meant to deter police officers from misconduct. Following the U.S. Supreme Court’s lead in Davis, the majority found there is no misconduct when a police officer follows established and binding precedent. In other words, evidence obtained through good faith adherence to the law should be permissible even when the law is later determined to be unconstitutional. To further justify why Tennessee constitutional law should follow its federal counterpart, the majority pointed to cases in twelve other states February 2017

COVER STORY By: Melanie Reid LMU-Duncan School of Law

that have expanded the use of the good-faith exception.11 But the Court was quick to point out it was only adopting the Davis good faith exception and not all the other good faith exceptions the U.S. Supreme Court has adopted.12

In her dissent, Justice Sharon Lee stated the adoption of the good faith exception “erodes our citizens’ rights to be free from unreasonable searches and seizures” and “undermines the integrity of the judicial process.”13 In her concluding remarks, Justice Lee wrote: “Although the United States Supreme Court has adopted a good-faith exception, we have the authority to provide the citizens of our state with greater protections, and I submit we should do so in this case.”14

search warrants are based on an informant’s tip, Tennessee requires the affidavit to both demonstrate the basis of the informant’s knowledge and verify the reliability of the information/informant (which is stricter than the federal evaluation of a warrant under the totality of circumstances).

Ian Fleming once wrote: “Once is happenstance. Twice is coincidence. Three times is enemy action.”20 McCormick and Reynolds made 2016 a significant year in Tennessee criminal procedure. In 2017, will the Court be revisiting additional criminal procedure topics in which Tennessee has historically provided greater protections to defendants than U.S. constitutional law requires?

The Court Post-Reynolds

367 U.S. 643 (1961).

United State v. Leon, 468 U.S. 897 (1984).

3 State v. Carter, 160 S.W.3d 526, 532-33 (Tenn. 2005).

4 State v. Huddleston, 924 S.W.2d 666, 674-75 (Tenn.

1996).

5 The Exclusionary Rule Reform Act (ERRA), TENN. CODE ANN. § 40-6-108(a).

6 TENN. CODE ANN. § 40-6-108(c)(1).

What is the definitive take away from Reynolds, which took over a year to decide?15 The case did not resolve any issues concerning the constitutionality of Tennessee’s implied consent laws. The Court meant for this opinion to address the good faith exception; however, since the implied consent law has been rewritten and police officers now typically seek warrants when drivers refuse to consent to a blood draw (or revoke their implied consent), it is less important for the Court to rule on this issue. If anything, Reynolds reaffirms police officers’ need to obtain valid consent from the driver or start the warrant process before a blood draw.

More significantly, Reynolds reflects the Court’s willingness to re-evaluate areas in which the Court had previously granted greater protections under the Tennessee Constitution and decide whether article I, section 7 and the Fourth Amendment are, in fact, “coextensive” and consistent. Just six months ago, the Court in State v. McCormick overturned its own precedent in State v. Moats,16 and decided to adopt the U.S. Supreme Court’s community caretaking exception to the warrant requirement.17 The next big re-evaluation may soon be revealed as the Court heard oral arguments on October 5, 2016 in State v. Tuttle.18 The Court seemed interested in revisiting a previous decision in State v.

Jacumin,19 in which the Court held that when February 2017

1 2

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__ S.W.3d ___, 2016 WL 6525856 (Tenn. 2016).

The HGN test is used by police officers to establish probable cause to arrest a person for driving while intoxicated and is based on the fact that alcohol slows down the automatic tracking mechanisms of the eyes.

9 At the time, Tennessee Code Annotated section 55-10-406(a)(1) provided that no test for determining the alcoholic content of a person’s blood “may be administered pursuant to this section, unless conducted at the direction of a law enforcement officer having reasonable grounds to believe the person was driving while under the influence of alcohol, a drug, any other intoxicant, or any combination of alcohol, drugs, or other intoxicants as prohibited by [section] 55-10-401 . . .”

10 131 S. Ct. 2419 (2011).

11 Reynolds, 2016 WL 6525856 at 19 n. 22.

12 Id. at 20.

13 Id. at 21 (Lee, J., dissenting).

14 Id. at 24.

15 Oral arguments were heard on September 30, 2015, and the decision was not filed until November 3, 2016.

16 403 S.W.3d 170 (Tenn. 2013).

17 State v. McCormick, 494 S.W.3d 673 (Tenn. 2016).

18 State v. Tuttle, No. M2014-00566-CCA-R3-CD, 2015 WL 5251990 (Tenn. Crim. App. Sept. 8, 2015), perm. app. granted (Tenn. Feb. 18, 2016).

19 778 S.W.2d 430 (Tenn. 1989).

20 http://www.goodreads.com/quotes/418466-onceis-happenstance-twice-is-coincidence-three-times-isenemy.

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LAWYER’S ALMANAC By: Chris McCarty Lewis, Thomason, King, Krieg & Waldrop, P.C.

THE EMANCIPATION PROCLAMATION

According to the Emancipation Proclamation, President Abraham Lincoln declared all slaves “shall be then, thence forward, and forever free” as of January 1, 1863. What better way to kick off a legal almanac column than to highlight one of the turning points in our nation’s history.

In the stroke of a pen, President Lincoln redefined what it meant to be human.

The catch, of course, is that nothing happened on January 1, 1863.

Our country was in the middle of the Civil War. Southern states, who the Emancipation Proclamation would actually affect, ignored the President’s war-time decree. But the stakes had been raised for the Confederacy. If the South lost, it would now lose its primary economic model. Plantation owners reaped the benefits of generations of wealth quite literally on the backs of a free labor force. President Lincoln was taking a clear, unequivocal stand that would change the South and our country for generations to come.

The Emancipation Proclamation was not only a battle line though; it was also a stepping stone. President Lincoln and a Republican Congress continued to move forward with measures to eradicate slavery

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for good. The Senate passed the Thirteenth Amendment by two-thirds majority on April 8, 1864. Then, the House followed suit on January 31, 1865. After enough states ratified by December 1865, the Thirteenth Amendment became the law of our land, forever mandating that “neither slavery nor involuntary servitude … shall exist within the United States.”

It all started with 1,754 words issued by one of our greatest presidents. It was the moment the “Land of the Free” truly started living up to its name. To fully summarize the Proclamation’s purpose, however, I will defer to President Lincoln: “And upon this act, sincerely believed to be an act of justice, warranted by the Constitution, upon military necessity, I invoke the considerate judgment of mankind, and the gracious favor of Almighty God.” Amen.

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February 2017

WELL READ By: Lee T. Nutini Gideon Cooper & Essary

REFUSE THE EASY OPTION

When my head isn’t in a book, I read blogs on work culture to stimulate my thinking on how to develop new perspectives to create better, modern work – whether it be at the law office or in personal pursuits. My go-to thinker on these topics is Seth Godin, and I’ve used this space before to discuss his writings. Every few months, Seth Godin’s blog writing is so apt for the legal market that I feel compelled to share.

Just after the New Year, Seth Godin provided these insights in “The candy diet” (with some emphasis added along the way):

Fifteen years ago, cable channels like TLC (the “L” stood for Learning), Bravo and the History Channel (the “History” stood for History) promised to add texture and information to the blighted TV landscape. Now these networks run shows about marrying people based on how well they kiss. And of course, newspapers won Pulitzer prizes for telling us things we didn’t want to hear. We’ve responded by not buying newspapers any more.

The decline of thoughtful media has been discussed for a century. This is not new. What is new: A fundamental shift not just in the profit-seeking gatekeepers, but in the culture as a whole.

[Einstein said that,] “Everything should be made as simple as possible, but no simpler.” We are certainly guilty of being active participants in a media landscape that breaks Einstein’s simplicity law every day.

The economics seem to be that the only way to make a living is to reach a lot of people and the only way to reach a lot of people is to race to the bottom, seek out quick clicks, make it easy to swallow, reinforce existing beliefs, keep it short, make it sort of fun, or prurient, or urgent, and most of all, dumb it down.

And that’s the true danger of anti-intellectualism. While it’s foolish to choose to be stupid, it’s cultural suicide to decide that insights, theories and truth don’t actually matter. If we don’t care to learn more, we won’t spend time or resources on knowledge.

We can survive if we eat candy for an entire day, but if we put the greenmarkets out of business along the way, all that’s left is candy.

Even if only a few people use precise words, employ thoughtful reasoning and ask difficult questions, it still forces those around them to catch up. It’s easy to imagine a slippery slope down, but there’s also the cultural ratchet, a positive function in which people race to learn more and understand more so they can keep up with those around them.

Turn the ratchet. We can lead our way back to curiosity, inquiry and discovery if we (just a few for now) measure the right things and refuse the easy option in favor of insisting on better.

complete a thought, whether on page or at oral argument. Part of the drive to “dumb it down” is the complete lack of time every professional seems to have. No one wants to read or listen to a complete, wellreasoned argument. People reduce and reduce and reduce to the easy metaphor so they can move forward. As far as I can tell, lawyers and judges are so busy that – well – there should be plenty of job openings for new lawyers and judges.

I am forever grateful to the judge for whom I clerked because he taught me what law school could not: slow down and think about it.

Getting it right was better than getting it quick(ly). It is easy (and wrong) to find a Westlaw headnote that sounds appropriate for your case, but the rule in the context of the facts of the case tells a more complex story.

Read the case.

The law cannot survive on a candy diet. It is complex, nuanced, and highly intellectual. It demands precision of word and thought. It demands thoughtful reasoning and asking difficult questions. It demands being frequently wrong. Our cases and arguments deserve a little more of our time.

We now live in a culture that demands a race to the bottom in almost every aspect of our lives. Please, lawyers, hold your ground. Slow down with the law. Challenge your law partners to write succinctly but completely. Turn the ratchet once a day, and we might build a new intellectual curiosity.

You can read Seth Godin’s full article here: http://sethgodin. typepad.com/seths_blog/2017/01/the-candy-diet.html. As ever, I absolutely recommend subscribing to Seth Godin’s blog for any wellread, business-minded lawyer.

The same anti-intellectual race to the bottom is evident in legal practice.

Although I have long been an advocate for shorter (actually, succinct) legal writing, lawyers are increasingly afraid of spending the time to February 2017

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W O R D P L AY

barrister bullets

By: Peter D. Van de Vate Finkelstein, Kern, Steinberg & Cunningham

ACCESS TO JUSTICE – For all those interested in volunteering, there are a number of pro bono opportunities this month. The Knox County Saturday Bar will take place from 9:00 a.m. until noon on February 4, 2017, at the Knox County office of LAET. If you are interested in volunteering, please contact Kathryn Ellis at kellis@laet. org. Similarly, the next Veterans Legal Clinic is scheduled for noon on February 8, 2017, at the Knox County Public Defenders’ Community Law Office. If you are interested in signing up, click on the date in the KBA Event Calendar at www.knoxbar.org.

HUNGER AND POVERTY RELIEF – The Hunger and Poverty Relief Committee would like to thank everyone who participated in the Barristers’ Canned Food Drive. We ultimately collected over $20,000 in cash donations, which equals 66,392 meals that Second Harvest can distribute to the underserved throughout East Tennessee.

The Committee would also like to thank the KBA members who generously donated gifts to provide a happier holiday for sixteen children in need at the Wesley House.

“Making both ends meet”

Such may be difficult after a happy holiday season, and, yes, of course, the saying has its origins in matters nautical. It has much to do with economics, such as it is used today.

Aboard ship, resources are limited before the ship leaves port, in terms of purchasing the stores for the ship, as well as preserving them so that they will last throughout the voyage. Hence, sailors would splice sections of rope together to make the length that was needed – making the ends meet. This practice saved the expense of rope through recycling, as it were.

The phrase became more as we use it today as it was used by William Beveridge in his 1662 Sermons: “worldly wealth he cared not for, desiring only to make both ends meet.”

LAW SCHOOL MENTOR – The Barristers’ Law School Mentor Committee is seeking volunteers for mock interviews at UT and LMU Law. Please contact Stanton Fears at sfears@kramer-rayson.com if you are interested in volunteering.

MOCK TRIAL – The District Mock Trial Competition will take place at the City County Building on February 18 and 25, 2017. We are recruiting lawyers and law students to serve as presiding judges, scoring judges, and bailiffs. The KBA will provide breakfast and lunch to our volunteers. Anyone willing to serve should email John Rice at jrice@esc-law.com with their availabilities. For those who tweet, follow the state-wide mock trail happenings at @tnmocktrial.

MONTHLY MEETING Plan now to attend the Barristers monthly meeting on Wednesday, February 8, at 5:00 p.m. at the Bistro at the Bijou. Everyone is welcome. Get updates on the Barristers on Facebook at www.facebook. com/knoxvillebarristers.

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February 2017

SCHOOLED IN ETHICS By:

Judy M. Cornett

ABA ISSUES TWO ETHICS OPINIONS ON FEES

Have you ever asked a court to withdraw from a civil matter on the ground that your client has not paid your fee? Have you ever agreed to divide a fee with another lawyer? If you answered “yes” to either of these questions, you’ll be interested in two ABA Formal Ethics Opinions issued in December 2016.

ABA Formal Ethics Opinion 476 addresses the relationship between Model Rule of Professional Conduct 1.16(b)(5), which permits an attorney to withdraw if a client is not paying fees as agreed, with MRPC 1.6(a), which protects information relating to the representation from disclosure except in certain circumstances. The opinion addresses only ongoing civil cases in which an attorney would need the court’s permission to withdraw.

Tennessee’s relevant Rules of Professional Conduct are identical to the Model Rules considered in Formal Ethics Opinion 476. Rule 1.16(b)(5) provides: “[A] lawyer may withdraw from representing a client if: . . . (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.”

Subsection (6) provides that a lawyer may withdraw if “the representation will result in an unanticipated and substantial financial burden on the lawyer.” When a lawyer moves the court to withdraw pursuant to these provisions, she must decide what to say. The possible statements range from “I move to withdraw for professional reasons” to “I move to withdraw pursuant to TRPC 1.16(b)(5)” to “I move to withdraw because my client owes me $100,000 in fees but refuses to pay, despite recently buying a new yacht, a Rolex, and an Escalade, and vacationing in Aruba for the past six weeks.”

Tennessee Rule of Professional Conduct 1.6(a) provides: A lawyer shall not reveal information relating to the representation of a client unless: (1) the client gives informed consent; (2) the disclosure is impliedly authorized in order to carry out the representation; or (3) the disclosure is permitted by paragraph (b) or required by paragraph (c),

The ABA opinion makes it clear that specific facts regarding the “obligation” and the client’s failure to fulfill it constitute “information relating to the representation under Rule 1.6” and, therefore, are not subject to disclosure unless an exception applies. It is unlikely that a client will give informed consent to disclosure of the client’s recalcitrance regarding fees. Arguably the disclosure is implicitly authorized to carry out the representation, but this argument is less than persuasive since the purpose of the disclosure is to end the representation. Similarly, in the typical case, neither a crime nor fraud would be involved such that disclosure would be permitted or required.

However, the opinion cites several cases in which courts “have issued decisions that recite details as to the money owed by the clients, the specific legal services performed and related facts, indicating that the court required more from the lawyer than just a statement that the motion to withdraw was motivated by ‘professional considerations.’” The opinion goes on to consider the role of the judge in resolving the tension between Rules 1.16(b)(5) and 1.6(a). According to the opinion:

[ J]udges should recognize the ethical constraints on lawyers who move to withdraw, and work with the lawyers to obtain the information needed to rule on the motion while cognizant of the lawyer’s duties under Rule 1.6. In some instances, judges may conclude that the procedural history and status of the case is sufficient to decide the motion without further inquiry. Or a judge may consider asking the lawyer merely to assure the court that the motion is brought in good faith and without purpose of undue delay. A judge should not require the disclosure of confidential client information without considering whether such information is necessary to reach a sound decision on the motion. When a judge decides that confidential information is required, the judge should consider whether there are ways to reduce or mitigate harm to the client.

This admonition echoes Comment [3] to TRPC 1.16: “The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient. Lawyers should be mindful of their obligations to both clients and the court under RPCs 1.6 and 3.3.”

Fortunately for lawyers, the opinion notes that when a judge demands specific facts in support of a motion to withdraw, the lawyer may ethically comply, “to the extent reasonably necessary to respond to the court’s inquiry.”

Ultimately, the opinion suggests a multi-step procedure when a lawyer in an ongoing civil case seeks to withdraw due to nonpayment of fees. First, the lawyer should make a motion requesting permission to withdraw simply on the basis of “professional considerations.” The motion should not reveal specific facts, but “the lawyer can recite her compliance with procedural steps, such as prior notice to the client” and can describe the “procedural history and status of the case.”

Second, if the court requires more information, the lawyer should “respond, when practicable, by seeking to persuade the court to rule

(Continued on Page 22)

February 2017

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ABA ISSUES TWO ETHICS OPINIONS ON FEES on the motion without requiring the disclosure of confidential client information, asserting all non-frivolous claims of confidentiality and privilege.”

Finally, if the court insists on further disclosure, the lawyer should “submit only such information as is reasonably necessary to satisfy the needs of the court and preferably by whatever restricted means of submission, such as in camera review under seal, or such other procedures designated to minimize disclosure.”

In the second opinion, ABA Formal Ethics Opinion 475 addresses the relationship between MRPC 1.5(e), which permits lawyers to divide a fee under certain circumstances, and MRPC 1.15(a), which “provides in pertinent part that a lawyer ‘shall hold property of …third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.’” Again, Tennessee’s versions of these rules are identical to the Model Rules, except that Tennessee adds “and funds” after the term “property” in Rule 1.15, just to make it perfectly clear that the rule applies to money.

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(Continued from Page 21)

The opinion concludes that, for purposes of Rule 1.15(a) only, a lawyer with whom a fee is being divided is a “third person.” Thus, the lawyer who actually receives the fee must comply with Rule 1.15 with respect to the other lawyer by (1) placing the fee in “an account (typically a trust account) separate from the lawyer’s own property”; (2) notifying the other lawyer of the receipt of the fee; and (3) “ promptly deliver to the other lawyer the agreed upon portion of the fee”; and (4) “if requested by the other lawyer, provide a full accounting.” The opinion also holds that, if a dispute arises concerning the fee, “the receiving lawyer [must] keep the disputed funds separate from the lawyer’s own property until the dispute is resolved.”

Although neither opinion is binding in Tennessee, both are helpful in harmonizing potentially conflicting rules. Both opinions closely parse the applicable rules and give concrete guidance to lawyers about how to comply. Both opinions make common sense, although both may contradict to some extent the way things have been done locally in the past.

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February 2017

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

TO BE A KNOXVILLE LAWYER

I have been fortunate to do a good bit of traveling this year and to meet a lot of attorneys from other areas. I say fortunate because I have learned more about the practice of law in the past year than in the nineteen that preceded it. I would not change the experience for the world and I appreciate the many good friendships I have made and the new perspectives I have gained. While it has been a wonderful learning experience, perhaps the best part is that with every lawyer I meet, I come to appreciate being a Knoxville lawyer more and more. This is not because I don’t like the people I am meeting or think that their community or practice is in any way inferior. It is simply that seeing other legal communities highlights for me those unique aspects of the legal practice in Knoxville that define us and bring us pride.

To be a Knoxville lawyer means being smart enough to know when and where to use the terms “sir” and “ma’am.” Most of us raised in the South were taught from a very early age to address not only our elders, but even our peers, with a respectful “ma’am” or “sir.” It is a formal greeting and almost reflexive in nature. So much so that even those who have moved here from other places to practice law have adopted the practice or at least understand it. However, lawyers in Knoxville have never had carte blanche to use the terms indiscriminately as most southerners do. We must be judicious in its use. Anyone who had the pleasure of appearing before Chancellor Bell back in the day knows that a poorly placed “yes ma’am” would earn you a rebuke and instruction that “your honor” was the appropriate appellation.

To be a Knoxville lawyer means owning at least one piece of appropriately sanctioned orange court apparel. Look, I get it if you are not a fan of the Volunteers. Perhaps you hail from other areas and your allegiances lie elsewhere. Perhaps you just get tired of the constant refrains of Rocky Top during the fall. Perhaps you are a contrarian, as many lawyers are apt to be, and simply wish to swim against the grain. Maybe you just think the color orange is ugly and garish. That’s fine and I don’t begrudge you your opinions at all. All I’m saying is that sometimes you need to blend in and I’ve never seen a Knoxville lawyer get in trouble for sporting the colors.

To be a Knoxville lawyer means that you probably knew Don Paine personally. Likely, he bought you a beer at some point in your life, or let you sample one of his home brews. You may have been one of his students, or you attended one of his CLEs. You served in a legal clinic with him, or read one of his many columns in the Bar Journal. Whatever the connection, you take pride in the knowledge that you are a member of the same bar Don loved so well.

To be a Knoxville lawyer means understanding that the Bistro is the unofficial gathering place to mediate disputes and resolve differences.

Whether it is over lunch with flash fried Brussel sprouts or during happy hour with libations, more than one sticky matter has been resolved because Knoxville lawyers understand that charging into court or drawing an inflexible line in the sand is not always the best solution.

To be a Knoxville lawyer means wearing the badge of a volunteer February 2017

with pride and honor. We live in the heart of volunteer country, and it is a defining part of who we are. Look no further than the outpouring of support after the Gatlinburg wildfires. Knoxvillians take special pride in serving others and Knoxville lawyers know that we are in a unique position to serve in ways that most cannot. At the same time, our altruism is a private matter. We don’t need mandatory reporting of pro bono and generally do not seek recognition for our service. Knoxville lawyers volunteer because it’s the right thing to do.

To be a Knoxville lawyer, at least of a certain age, means you probably earned your “bones” (in Godfather parlance) off the collapse of the Butcher Empire. It’s amazing to me how many lawyers in this town were at least tangentially involved in the many proceedings that flowed from the banking litigation of the eighties. I was just a small kid when the World’s Fair came to town and did not really understand its impact or that of the subsequent fall of Jake Butcher. I do know that not much positive can be said about the experience, except that there seems to have been plenty of legal work to go around.

To be a Knoxville lawyer means that you have a bar association second to none. This may seem like pandering, given that this article is being published in DICTA, but I challenge anyone reading this to find a bar association more professional and responsive than ours. Much has been said about Marsha Watson, the KBA staff and the wonderful job they do. I don’t have the space here to elaborate, except to say that if you are a Knoxville lawyer and you can’t find value in the work our association does for your practice, then you simply aren’t trying.

To be a Knoxville lawyer means that, whether you leave work at 5:30 or 6:00 p.m., you will probably get home around the same time. For some reason, approximately 80% of us have decided to settle in the Cedar Bluff area and our city leaders decided a long time ago that they would only have three routes going east to west across this city.

To be a Knoxville lawyer means respecting your opponent. At the end of the day, we still live and work in a relatively small community.

It is still possible, although getting more and more difficult, to know everyone who practices law in this town. We remain a family of lawyers and our bar is strong because we treat one another with respect and we are genuinely supportive of one another. The practice of law is not easy and there is comfort in knowing that we can be adversaries during the day and friends after hours.

To be a Knoxville lawyer means that Market Square, one way streets, game day, the Dogwood Arts Festival, Cas Walker, Jack Neely, Peyton Manning, Big Jim Haslam, Judge Taylor, limited parking, “scruffy little city,” pollen and hayfever, TVA, ORNL, HGTV, outdated courtrooms, a man drowning in a rowboat, Pat Summitt, the Sunsphere, Calhoun’s on the River, pig burgers, moonshine, Neyland Drive, school closings at the hint of snow, the Supreme Court Dinner, Barristers, Dollywood, Whittle Communications, and the Great Smoky Mountains all have meaning to you.

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LIFE HACKS By: Angelia Nystrom University of Tennessee Institute of Agriculture

GETTING FIT AND EATING HEALTHY IN 2017

Despite the devastating fires in the Smokies, the civil unrest in our country and around the world, and despite the deaths of many iconic figures from my childhood (Prince, George Michael, David Bowie, Carrie Fisher… and even Debbie Reynolds--- I was a fan of the VHS exercise tape “Do It Debbie’s Way”), 2016 was a great year in the Nystrom house. Trace excelled in school and swimming. He was elected to Student Council. He even acquired some measure of acclaim with the Facebook videos, “The Trace Nystrom Show,” which got over 30,000 views. Hugh continued to do great things at Childhelp and was elected to Knox County Commission after running a fantastic campaign. And I continued in a job that I love at the UT Institute of Agriculture, which Hugh describes as “the best lawyer job in all of Tennessee.”

We were able to spend a week on a sailboat in the Bahamas with friends during the early summer, and we took the trip of a lifetime to Hawaii for the 75th anniversary of the attack on Pearl Harbor. We were blessed with good health and great happiness. It was an incredible year for our family. And it shows. It shows on my face, as I smile and laugh a lot. Unfortunately, it also shows on my waist, hips, and thighs.

While blessings were plentiful last year, so was good food. When the calendar rolled to January 1, I realized that I had gained a whopping 20 lbs in 2016! I knew that I needed to take action. My motto for 2017 is “The Year of Living Lean.” To jumpstart my program, I decided to rid the house of the food that I deemed “bad.” Cleaning the refrigerator was easy, as most of the “bad” food was well past its expiration date. The Christmas candy dishes were a bit harder. I made Trace eat the remaining chocolate covered cherries so that I would not be tempted, and I resisted the urge to eat the five remaining Lindor chocolate truffles that were in another one.

It’s been a little more difficult, though, to find motivation to eat healthful foods and to exercise. It seems that I can always come up with the “I don’t have time” or “we don’t have any good food” excuses. Hugh says his favorite of my excuses is “It’s a good tv night.”

I’m trying to make healthy living a habit again, and I needed some “life hacks” to combat the excuses that always seem to get in my way. I sought out some advice from others who are much better at this than me.

Annette Winston makes good health a priority. Says Annette, “There are two rules by which I must abide to stick to healthy eating and adequate movement. For the food: Don’t buy it. Leave it at the grocery store. Feel smug as you leave said grocery store without the junk food. For the exercise: Book it. I put every workout for the week on my calendar on Sunday afternoon. Then I do them. If someone wants that time for something else, I just reply, ‘I’m sorry; I have a conflict at that hour.’ It works like a charm.”

Stephanie Daniel also has two great rules. “First, I try to eat the same things during the day every day and pack all of my breakfast and snack food for the week on Sunday nights. Second, I keep a packed workout bag in my car, so I can go out for a lunch or end of day workout if my schedule allows.”

Rick Carl offered this advice. “My wife Joanna and I like (read: try when it’s not 9 degrees) to get up in the morning and walk down to the lake and back, about 2 miles. When I get home at night, Jo and I like to eat healthy and cook together – even on weeknights. Consequently,

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we tend to eat late, but with music on the stereo, wine in healthy moderation, me on the grill and Jo on the Sautee, dance moves when we pass in the kitchen (we’re active, right?). We like to think this keeps us from just getting pizza or tacos and watching “That 70’s Show” re-runs.

We also try to hike/bike, etc., most weekends even if it’s just a short trip.

Disclaimer: our kids are college age and older so we’ve thrown plenty of pizza and tacos down the basement staircase to the Zombie youth that used to invade our house every weekend, and we no longer have to attend sports, theatre, scouts, concerts, meetings, etc. 10 times a week. And, yes, we miss it terribly. Well, except for maybe Camp Buck Toms with the Scouts.”

Alyssa Minge offers this advice. “For eating: I like to grab juice on my way out the door in the morning to avoid stopping for a sugar-filled coffee and/or snacks at Starbucks on the way in to work (so easy to allow yourself this indulgence, and so tempting… mmmm… Starbucks). It’s all about convenience for me – grabbing an apple, orange or banana so it’s handy is so much easier than attempting to avoid candy jars around the office without a healthy alternative to put in its place.”

She also says, “For stress, I have to get up and walk periodically.

Getting ice water and moving even a little helps break up the day and tension. Even if I don’t take lunch, leaving the office for a few minutes can do a great deal to re-energize me! I also have a great group of friends who I don’t see often enough, who I am trying to remind myself to meet for lunch or a drink periodically so as to allow time to take care of myself and my friendships. “

Finally, per Alyssa, “For health and sanity: Especially with billable hour requirements, very few people feel they can afford to stay HOME when sick. So, hand sanitizer (!!) stays near my desk, along with Lysol wipes and disinfectant. I tend to organize my desk at least once a week and wipe everything down at the same time – I get an idea of what is on my desk, create and update my “to do” list, and scrub everything down at the same time. (A bit OCD, yes, but it works for me.) I try to take the same approach at home… With two little ones, I don’t have much time to tackle what seem like big projects. This weekend, I cleaned out a few drawers in my kitchen. A little each day does a lot in the long run!”

Sherri Alley has found a way to make working out easier. “I found a gym close to my house that allows members to let themselves in between 5am and 11pm (Koko Fit Club). Its workouts take the hassle and guesswork out of training. An MP3 guides you through 15 minutes of interval cardio on a treadmill or elliptical machine. It’s low impact but the interval feature makes it as intense as a much longer session. Then, their SmartTrainer weight machines guide you through the workout program you choose by showing you what exercises to do, how to do it, keeping count of reps and keeping you on pace to complete the weightlifting portion in 30 minutes. I love it! I can easily make it in before the kids get up or after they go to bed and be back in my car headed home within the hour. (Sorry I sound like a commercial, but I really love this gym.)”

I’ve already incorporated some of these into my routine. These “life hacks” are helping me to get back on track. Here’s to a healthy and happy 2017!

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February 2017

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

TECH TRENDS FROM CES 2017

Every year, just after we pack our New Year’s party hats, we print our boarding passes for Las Vegas to attend the Consumer Electronics Show (CES). 2017 marked the 50th anniversary of the annual geek fest; and this year’s show did not disappoint, with a record attendance of over 175,000 and over 2.5 million (yes million) square feet of exhibit space.

We attend every year, of course, to see the latest and coolest gadgets that may or may not be coming to the market; but, perhaps even more importantly, we attend to get a sense of trends in the tech world that ultimately will impact the way our colleagues and we will work, play, and live in the near future. So, here is what we observed from CES 2017.

Not surprisingly we saw many robots at CES 2017, as we are poised to plunge headlong into the intelligent machine age. There were robots that would interact with you, clean your house, take your order, assist you in a retail environment, mow your lawn, fold your laundry, and the list goes on. Last year we introduced many of our readers and presentation attendees to Amazon’s incredibly popular and engaging Echo (Alexa).

Alexa is just the tip of the iceberg in the emerging procession of digital assistant devices. We saw robots that could move throughout your home and respond to voice commands just as Alexa does, but could actually perform manual tasks at your command as well. We really wanted to take one of these home on the flight with us, but security was really tight and those robots are really smart. So, we didn’t try to snatch one.

Another popular theme at this year’s show was health and wellness tech. Business leaders have learned that a healthy and motivated workforce is a productive workforce. So there were many exhibitors at CES with technology to help consumers stay active, track health metrics, and work in a more ergonomically-friendly environment. Fitness trackers have become very popular, so gadget makers are seeking even more clever ways to get these sensors on our bodies. One of the newest wearables that caught our attention was a fitness ring called Motiv. We saw a demo of Intel’s new sensory feedback sunglasses that can track your vital stats while exercising and provide personalized coaching feedback at the same time. There were also smart bike helmets, smart scooters, and even smart chairs. A new movable chair concept from Honda was one of our favorites. At a more mundane level, sit-stand desks seem to be the default option for new office furniture, and, of course, you can supplement these units with treadmill bases or even stationary bikes along with monitor arms that can levitate multiple computer monitors without taking up more desk space. Eye tracking software has been around for a while, but has improved considerably since we first saw demos a few years ago. This software along with vastly improved voice recognition systems promises to expand computing options to users who have disabilities.

We went to this year’s show expecting to see a raft of new virtual reality (VR) applications, but after touring the incredibly crowded VR section of the exhibit hall, we were a little disappointed. Everyone has probably seen the television ads for VR goggles from companies such as Samsung and Google, and many, like us, have purchased one or two (or more) of these VR contraptions to try out. Yes we enjoy/endure the virtual ride on a roller coaster or watching a movie in VR; and February 2017

many gamers (not us) really are into the many VR gaming applications.

But outside these niche applications, we did not see a lot of new uses for virtual or augmented reality, much to our disappointment. This technology is still new, and we do expect to see applications of this technology in the workplace; but it still may be a few years out.

The automotive industry is investing heavily in exciting new technologies that promise to fundamentally change the way we think about travel. The huge auto technology-centric exhibits at CES made us think perhaps we had stepped out of Vegas into Detroit. Yes, self-driving cars are coming; but we were disappointed that we could not find any exhibit where we could actually get a test ride. We saw plenty of concept cars: electric-powered, self-driving, and even interactive; and we saw plenty of video demos of how these new automobiles will work. But we do believe the appearance of these new age vehicles en masse on our city streets is probably being delayed by considerations of security, safety, and liability. Nonetheless, we really can’t wait for the day when our car notices that we are beginning to get tired behind the wheel on a long trip (as we saw in the Toyota demo) and proactively tells us that it (the car) is taking over driving for us. Prius, take the wheel.

Finally, one of our favorite “gadgets” this year was the EHANG184, an Autonomous Aerial Vehicle (AAV –because everything in the tech world has to have an acronym). This vehicle is essentially a drone capable of carrying a person, sort of like an aerial taxi. The vision for this device is to taxi people over short distances through the air, without a pilot. So when you need to be in federal court in 30 minutes and the downtown corridor is gridlocked, you would simply call for the EHANG drone to pick you up and fly you through the air to your precise destination, land and deliver you to the courthouse. Oh man, we can’t wait for this one to become mainstream. Bring on the future. Bring on the tech.

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L E G A L LY W E I R D By: Melissa B. Carrasco, Egerton, McAfee, Armistead & Davis, P.C.

Au Revoir Mon Amour

Valentine’s Day is way too much pressure. It forces people to stake their hope of finding “wuv, true wuv”1 on the proper selection of chocolate, cheesy cards, jewelry, or the Loch Ness monster of all gifts: the one that says, “I am creative and attentive but not creepy or desperate.”

If you don’t get it right, you may as well buy a one-way ticket to South Dakota. Even if you already have that special someone, you now have to find yet another “perfect” gift barely a month after you had to find that “perfect” gift during the holidays.

And how do you even know that person is “the one”? Before you spend another moment worrying over what to do for Valentine’s Day, here are a few true stories about people and how they figured out that the magic was over.

Marianna, figured it out after only one month – actually it only took a couple of hours. You see, as the couple were waiting at the airport to leave on their honeymoon, who should appear but . . . her new mother-in-law. That’s right, folks, new hubby Stefano had booked a flight and a room for his mother at the five-star hotel in Paris where he and Marianna were spending their honeymoon. His rationale? He just couldn’t leave mom at home. Marianna filed the divorce papers a month into the marriage.2

Another woman gave her marriage a full two months, but she too realized it was not meant to be.

How did she know? Her husband failed to change his relationship status to “married” on Facebook. That’s how you know you can’t trust someone. He said he was too busy at work to update Facebook, but she wasn’t buying it. Facebook never lies.3

But, at least these two women gave their marriages a try. An Algerian man filed his divorce papers the day after the wedding. Apparently, he had never seen her without makeup, and well, what he saw after she washed her face wasn’t quite the same. In fact, he said he was frightened and didn’t recognize her at all.4 No one should have to live in fear.

Lastly, there is Antonio. At the age of 99, and after 77 years of marriage, he discovered a letter from his wife to another man – dated 60 years earlier. Rosa’s apology fell on deaf ears, and Antonio headed straight for divorce court.5

So, tweasure your wuv6 at least until Facebook tells you otherwise.

The Princess Bride (1987).

Nick Pisa, Fed-up Bride Files for Divorce after One month Marriage after Groom Brought his Mother on Honeymoon, Daily Mail.com (Jan. 27, 2011), http://www.dailymail.co.uk/news/ article-1351045/Fed-bride-files-divorce-month-marriage-groom-brought-mother-honeymoon.html.

3 Facebook Divorce: Woman Divorces Husband over Facebook Dispute, The Huffington Post (May 17, 2012), http://www.huffingtonpost.com/2012/05/17/facebook-divorce-womandi_n_1525138.html.

4 Groom Sues Bride for not Looking Pretty Without Make-Up, Emirates 24/7 (Aug. 3, 2015), http://www.emirates247.com/offbeat/crazy-world/groom-sues-bride-for-not-looking-prettywithout-make-up-2015-08-03-1.598962.

5 Rich Schapiro, 99-Year-Old Italian Man Divorces his 96-Year-Old Wife After Finding her Secret Love Letters from the 1940’s (NY Daily News, Dec. 29, 2011), http://www.nydailynews. com/news/world/99-year-old-italian-man-divorces-96-year-old-wife-finding-secret-love-letters-1940s-article-1.998455.

6 The Princess Bride (1987).

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ASK MCLAWYER

Question Presented:

or prospective juror after the jury has been discharged. The lawyer may do so unless the communication is prohibited by law or a court order entered in the case or by a federal court rule, but must respect the desire of the juror not to talk with the lawyer. The lawyer may not engage in improper conduct during the communication. As the Court stated in State v. Thomas, 813 S.W. 2d. 395 (Tenn. 1991): “After the trial, communication by a lawyer with jurors is permitted so long as he [or she] refrains from asking questions or making comments that tend to harass or embarrass the juror or to influence actions of the juror in future cases. Were a lawyer to be prohibited from communicating after trial with a juror, he [or she] could not ascertain if the verdict might be subject to legal challenge, in which event the invalidity of a verdict might go undetected.” Id. (quoting Tenn. Sup. Ct. R. 8, EC 7-29). The Court went on to state in Thomas that “Rule 8 therefore allows post-trial interviews by Counsel with jurors on these matters without the prior approval of the trial court.”

Id. at 396. Although the Court’s analysis in Thomas was based on an earlier version of Rule 8 (i.e., the Code of Professional Responsibility), the foregoing principles quoted from Thomas remain valid in the context of RPC 3.5.

Hello McLawyer, I completed my first civil jury trial recently……. I lost. Anyway, it was a valuable experience and I learned plenty. In hopes of getting more out of that learning experience, I was hoping to speak with the jurors and get their feedback. Is that allowed?

Answer:

Dear Learning Lawyer,

First, it is great that you have completed your first jury trial. You have gained more experience than many civil lawyers can claim these days. I am sorry that you lost, but you are right to gather as much valuable knowledge from the experience as possible. If you want to interview your jurors, first BE SURE to check your local rules and ask your judge (I assume you are in state court) if it is okay to interview them.

Most state court judges are accommodating, but many require that the jury panel complete their service to the Court before being interviewed.

Note Rule of Professional Responsibility 3.5, which provides that “[a] lawyer shall not . . . communicate with a juror or prospective juror after discharge of the jury if: (1) the communication is prohibited by law or court order; (2) the juror has made known to the lawyer a desire not to communicate; or (3) the communication involves misrepresentation, coercion, duress, or harassment.” In addition, Comment 4 to Rule 3.5 provides the following: A lawyer may on occasion want to communicate with a juror

There are obviously other rules of professional conduct to keep in mind, including Rules 4.1 and 8.4. Importantly, I recommend that you meet with a senior attorney (and maybe bribe him or her with lunch or a cup of coffee) to hopefully solicit helpful insight and ways to go about conducting juror interviews. Good luck!

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

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

PLEADING STRICT PROOF

Joe files an automobile accident (excuse me, “collision” if you’re a plaintiff ’s attorney) Complaint alleging a number of factual allegations based on negligence. Jim files an Answer that states, for example, “The allegations of Paragraph 10 are denied and strict proof is demanded.”

Well…ok…what’s the problem?

I have filed Answers with the “strict proof is demanded” in the past. I was taught to do it that way. It seems safe, a veritable fortress of verbiage from which the defense attorney may pour scalding oil or water, throw rocks or leash arrows against the enemy below. The problem is, however, “strict proof ” does not exist in the typical negligence case. Yet, the phrase appears in court cases. It appears in journals, and even practice manuals. There are archaic cases dealing with issues like estoppel that seem to suggest a “strict” burden of proof, sometimes seemingly used interchangeably with “clear and convincing,” “clear” or…whatever.

The phrase seems to suggest that the defendant (usually) can change the burden of proof by simply wishing it so. I suppose that would be nice, i.e., to be able to plead “strict proof ” and thereby change the burden from preponderance of the evidence to a more…well…”strict” standard. You know, like a procedural game of “heads and tails” where you throw it in the air and I call it. “Strict proof! I win!”

Other than providing for the pleading of defenses and affirmative defenses, Tennessee Rule of Civil Procedure 8.02 (“TRCP”) allows basically three types of responses to the allegations of a complaint:

Insurance Company,3 the Panel noted, “[t]he defendant filed a brief answer neither denying nor admitting the allegations but demanding ‘strict proof of same’, an inefficacious and meaningless response.”4 I would surmise that a Panel Justice in July 1995 decided to bring the issue to the Court in August 1995, where it was made an “observation in passing”, or perhaps more like a drive-by shooting at that point. What the Court did not do, however, was say, “don’t do this again and here’s why…” Perhaps some of them had filed prior Answers demanding strict proof in their past lawyers’ lives? Hey, I’m not being critical in the least. Like I said I’ve done it myself…old habits die hard.

Leave it to Pivnick, that bastion of all things “circuit and civil” to put it bluntly: “[t]he practice of demanding strict proof is archaic and useless.”5 There may be special issues, such as estoppel, where strict proof, or some other form of heightened burden of proof is required.

However, in the standard civil case, the use of the phrase is a little like trying to make gold with an alchemy set.

Strictly speaking, of course….

1995 WL 572192 (Tenn., August 7, 1995).

Id., at *1.

3 1995 WL 605608 (Tenn. Worker’s Comp. Panel, July 5, 1995), 4 Id., at *1.

5 Lawrence A. Pivnick, Tennessee Circuit Court Practice, sec. 12:3. Form of answer (2014-2015 Edition).

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(1) admitting it; (2) denying it; or (3) averring one is without knowledge or information sufficient to form a belief as to the truth of an averment, which operates as a denial.

In other words, Rule 8 allows “yes”, “no” or “I don’t know” (basically a procedural “Mulligan”). Rule 8 does not address the ability of a party to change the burden of proof. Rule 8 requires that the person preparing the Answer only deny the parts of an allegation that should be denied and admit the parts that should be admitted. The Rule allows for qualified responses to allegations by specification of which part of an allegation the pleader admits and which part she does not admit. As an aside, one should be careful with simply making blanket denials.

Never let it be said, however, that the TRCP requires absolute precision; TRCP 8.05(1) does throw the less precise among us “a bone” of sorts in stating “[n]o technical forms of pleading or motions are required.” Yet, TRCP 8.02, and indeed nothing else in the TRCP discusses “changing” the burden of proof in a responsive pleading.

The Tennessee Supreme Court has taken “passing stabs” at this sacred cow of the defense bar, but it has not ever really shot the beast and put it out of its misery. In Breeding v. Calsonic Yorozu Corporation,1 the Court noted the practice in a worker’s compensation case of pleading “strict proof.” Although entirely unrelated to the holding, the Court commented, “[w]e observe in passing that the latter phrase is inefficacious and meaningless.”2 Webster’s, by the way, defines the word “inefficacious” as “lacking the power to produce a desired effect.”

Hmmm…like being able to change the burden of proof simply by averring that one has done so?

Not very critical perhaps, unless one reads another case a month earlier in which part of the Court said the same thing. In Reed v. CNA

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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.

OFFICE SPACE AVAILABLE: •

PARALEGAL ASSOCIATION MEETING The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, • February 9, 2017, at 12:00 pm. in the Blount Mansion Visitors Center, Knoxville, Tennessee.

Attorney Garry W. Ferraris of the Law Office of Garry Ferraris will be presenting the one-hour program on the topic of Tennessee Retaliatory Discharge Law. A lunch buffet is available at the cost of $12/person with reservations. Please contact Kati Wheatley, ACP at president@ smparalegal.org or (865) 546-7190 for additional information and/or lunch reservations.

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

WILL SEARCH The family of Ray Ellis Hill is looking for the attorney who prepared his will.

Name: Ray Ellis Hill; DOB: 5-30-1924; DOD: 12-8-2016 Address: 372 Little Fawn Lane, La Follette, TN 37766 Will prepared in 1997 by attorney John Walker Jr. who passed away in 2016.

Contact: KBA member Katie Waldrop (865-541-6883) who is with Home Federal Bank as they are Co-Executor on Ray Hill’s will.

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

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

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

•

•

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

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

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

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

Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records: Dustin S. Crouse BPR # 029950 Monica Franklin & Associates, LLC 4931 Homberg Drive Knoxville, TN 37919 Ph. (865) 588-3700 Fax: (865) 584-8300 dscrousejd@gmail.com Hillary E. Dewhirst BPR # 022760 P.O. Box 11352 Knoxville, TN 37939 Ph. (865) 246-0673 Fax: (865) 330-9876 hillary@attorneydewhirst.com Julie D. Eisenhower BPR # 027777 P.O. Box 23785 Knoxville, TN 37933 Ph. (865) 247-2321 j.eisenhower@hotmail.com Molly J. Hardin BPR # 035170 P.O. Box 11568 Knoxville, TN 37939 Ph. (865) 368-4627 mollyhardinlaw@gmail.com Courtney R. Houpt 5455 Lance Drive Knoxville, TN 37909 crhoupt@gmail.com Timothy C. Houser BPR # 013562 7307 Windtree Oaks Way Knoxville, TN 37920 Ph. (865) 609-0270 timhouser@comcast.net Troy B. Jones BPR # 033064 The Law Office of Troy B. Jones 418 S. Gay Street, Suite 204 Knoxville, TN 37902 Ph. (865) 546-5901 Fax: (865) 262-8855 troy@troybjones.com Julie Kuykendall BPR # 035219 Valliant, Harrison & Schwartz, P.A. 800 S. Gay Street, Suite 1650 Knoxville, TN 37929 Ph. (865) 637-0134 Fax: (865) 522-3525 jkuykendall.vhs@gmail.com

The family of Linda Gayle Allen is looking for the attorney who prepared her will.

Name: Linda Gayle Allen; DOB: 9-7-1950; DOD: 12-27-16 Address: 2400 Fine Avenue Knoxville, TN 37917 Contact: Tammy Bennett (Niece-in-law of the deceased) at 865-973-4682.

Sarah E.C. Maila BPR # 025535 P.O. Box 12395 Knoxville, TN 37912 Ph. (865) 544-8754 sarahecmalia@gmail.com J. Gregory O’Connor 1214 Lakeland Drive Knoxville, TN 37919 gregoconnor1214@gmail.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

Since November 18, 2016, I have been “temporarily disabled.” My disability wasn’t caused by a workplace injury or even by anything with a cool story to tell. My disability was caused by the subluxation of my right foot peroneal tendon.

I underwent surgery for a superior peroneal retinaculum & peroneal tendon repair. If you already knows what this means, I’m impressed! If you don’t, basically it means I had an ankle tendon that had stretched and kept wanting to go where it didn’t belong. The surgery has, hopefully, fixed that painful problem.

I’m telling you all this because it has been an eye-opening experience in ways I didn’t think my eyes needed to be opened any wider.

For those of you who don’t know me well, in addition to being the Pro Bono Director for Legal Aid of East Tennessee’s (LAET) coverage of Knox, Blount, Loudon, and Sevier Counties, I am Co-Chair of the KBA Barristers Access to Justice Committee and a member of the KBA Access to Justice Committee. I am also a member of the TBA Access to Justice Committee and participate with the Tennessee Supreme Court’s Access to Justice Commission as a representative of LAET. And, I represent low income victims of domestic violence in court.

I live for Access to Justice!

When my surgeon told me I would be non-weight bearing for 6-8 weeks (apparently that was the low estimate), I said that would be no problem. When she told me I couldn’t *drive* for 6-8 weeks, I instantly became concerned about how I would get to court, get to meetings, and get to upcoming LAET legal advice clinics.

I had no idea what I was really in for . . .

In addition to my husband driving me all over Tennessee and Virginia, I have (so far) gotten rides from LAET paralegal extraordinaire A’Leshia Browning and LAET attorneys Christina Magrans, Lee Ann Swarm, Jane Morris, and Zach Arnold, as well as private bar attorneys Daniel Ellis and Alicia Teubert (with additional assistance from Samantha Parris). Many others have offered rides.

On one day, I had four different people transport from home to my office, to a meeting in Maryville, to a meeting in Knoxville, to another meeting in Knoxville, to a restaurant, and home again.

Even with all that help, I have been late to work a few times, had other attorneys cover court for me a couple times, and had to ask for other accommodations.

And, I noticed that I really don’t like asking for help.

I have noticed a lot I never actually “saw” before. There is one courthouse I regularly practice in that has a handicap ramp into the building – you have to know to go to the side of the building, down the ramp near a loading dock, into the building, and then down a long hallway to the elevator to get to the floor where the courtroom I appear in is located. I scoped that out before my surgery.

If I was a non-attorney who was nervous about a court date and showed up at the building unaware of the perpetual parking lot overcrowding, there is a good chance I would not know where to go to avoid having to climb the very visible and numerous stairs on all sides of the building. I’m not going to lie, I might have given up once it was 9:10 and I still wasn’t in the courthouse.

Once I am in this particular courthouse, the courtroom where I usually appear has stairs to get into the well. There are three ways into the actual well -- all three have stairs. Not a lot of stairs, but stairs nonetheless.

For a nervous party to a case who may have to testify, there is no way for them to get to the well and to the stand without negotiating stairs.

I have been practicing in that courtroom for nearly five years and never *really* noticed the stairs.

As challenging as my temporary disability has been, I know that it could have been much worse.

I didn’t have to worry that I would lose my job because of being late a few times. I didn’t have to worry that a judge or an attorney would not “work with me” during these long weeks.

Fortunately, my friends and colleagues have the time, money, and flexibility to drive me to multiple locations; so, I didn’t have to rely on public transportation. If I had, I likely could not have made it to and from work, let alone to a court date for a ticket or some other “minor” issue. And, if I had a minimum wage job, I very likely would have lost it.

I have realized since November 18 that “access to justice” is sometimes much more basic than providing pro se forms, scheduling legal advice clinics, or placing cases with attorneys through the Pro Bono Project. Even now in the 21st century, whether or not someone has access to justice is sometimes just that, an issue of physical access.

Mark Your Calendars: * February 4 (9:00-12:00) – Knox County Saturday Bar at the NEW LAET Knoxville office (607 W. Summit Hill Drive) * February 8 (12:00-2:00) – Barristers Veterans Legal Advice Clinic at the Public Defender’s CLO * February 18 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County office * February 27 (1:00-5:00) – Sevier County Fire Victims Advice Clinic (Location TBD) ________________________________________________ * March 4 (9:00-12:00) – Knox County Saturday Bar at LAET’s Knoxville office (607 W. Summit Hill Drive) * March 8 (12:00-2:00) – Barristers Veterans Legal Advice Clinic at the Public Defender’s CLO * March 18 (9:00-12:00) – Blount County Saturday Bar at LATE’s Blount County office * March 27 (1:00-5:00) – Sevier County Fire Victims Advice Clinic (Location TBD)

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

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

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THE LAST WORD

Q: A:

By:

Jack H. (Nick) McCall

What exactly is “Collaborative Divorce,” and is it available in Knoxville?

HEIDI PLEHN WEGRYN, JD, AND WILLIAM M. MORRIS, SR., CDFA, FINANCIAL ADVISOR

Heidi:

As many of us are aware, January is the most popular month to file for divorce. In fact, our local media recently reported on the January surge in divorces and speculated that the “new year, new me” approach often applies to couples who have been contemplating a divorce and resolve to initiate the process at the first of the new year. What many couples in Knoxville don’t know is that they now have the option to consider a Collaborative Divorce.

The East Tennessee Collaborative Alliance is a newly formed organization of lawyers, coaches/facilitators, child specialists and financial professionals who serve divorcing couples, and others involved in family law disputes, in Knoxville and throughout East Tennessee.

While Collaborative Divorce is recognized as a legitimate and effective way for people to reorganize their families without the damage and cost of litigation, and while also being endorsed by professional bodies such as the American Bar Association, there are many who are still unfamiliar with the process.

Collaborative Practice is a client-centered approach to divorce and other family law matters that relies on respectful problem solving to reach a mutually beneficial agreement. The composition of the team is tailored to the individual needs of the family, but the end result is the same…you make the important decisions, rather than having a judge make them for you.

If you are looking for an alternative dispute resolution process wherein you can protect your assets and safeguard your children from the potentially harmful effects of protracted court proceeding, then we would like to welcome you to learn more about Collaborative Divorce and the East Tennessee Collaborative Alliance.

East Tennessee Collaborative Alliance (ETCA) is Knoxville and East Tennessee’s practice group for the Collaborative Divorce process.

Collaborative Divorce offers separating couples a team-based, holistic way of dealing with divorce. We are an interdisciplinary group of professionals committed to helping families navigate the often stressful, confusing, and emotional waters associated with obtaining a divorce. Our practice group consists of practitioners who are required to regularly obtain continuing education so as to offer the highest quality of services to our clients.

Each case is different, so depending on the circumstances of each individual family the parties work with collaborative attorneys, mental health divorce coaches, financial professionals, and child specialists to assist them through the transition to becoming a divorced family. The cornerstone to any Collaborative Divorce is a written agreement that is signed by both parties and their attorneys, at the onset of the case, where everyone agrees to work together to resolve the parties’ issues without going to court.

The next question often asked by attorneys and other interdisciplinary professionals is “how do I become trained and involved in the Knoxville area as a Collaborative Professional?” The good news is that due to the enthusiasm surrounding Collaborative Divorce, and the outpouring of interest in our community, we have already offered several Collaborative Divorce trainings in Knoxville, and we have another training scheduled for March 9-10, 2017.

The ETCA is excited to include and invite our local attorneys, mental health professionals and financial specialists to join us at our monthly meetings and/or participate in the upcoming training. Please visit www.easttennessecollaborative.com for more information.

Bill:

As a Certified Divorce Financial Analyst working with our collaborative team, I have developed a great appreciation for the many facets of divorce law and the emotions that often run wild. After all...determining the marital assets and dividing them down the middle is pretty simple and straightforward. Right?

One of the advantages of collaborative divorce is total disclosure of assets by all parties. After all, 2 plus 2 equals 4. Right?

Wrong! Maybe? What if it’s really 5 or 5.25 and it makes more sense for Mary to receive 3.25 while Sam keeps 2.0? Who determines the value of the asset and how much is marital? Is there a more tax advantageous method than a 50/50 split on the day of the divorce? If all assets are not split on the final court date, what guarantees are there that the agreement will be completed on time. Same for alimony. How is it paid? What protects the cash flow? What if the payor is disabled or killed?

For example, a recent case involved a stockbroker and his young wife. He just wanted to write a check for $1,000,000 and be done with the process. Under no condition did he want to pay alimony. Because of the disparity in income tax brackets, he was better off paying her alimony of $1,300,000 over nine years. The alimony was tax deductible and he would have needed to earn over $1,500,000 to have enough after tax cash to settle the divorce his way. Uncle Sam kicked in the extra $300,000 for her. Don’t hold me to these exact numbers. Sometimes a deep dive into assets, income, and attitudes can yield surprising options.

I know from personal experience that the thrill of leaving the courthouse a “free” man was tempered with all the tasks ahead to complete my divorce and begin my single life. I certainly did not want to hang myself on the loose ends.

The collaborative process is a great strategy for a low conflict result, even though the process is not without financial challenges. The financial neutral’s responsibility includes discovery of assets, financial modeling of each parties’ needs, and then presenting various models to meet the future needs of both parties and their children. Rather than a legal determination of asset distribution, our responsibility is to develop the most financially feasible solution for all parties. Sometimes less is more, even when parties feel more is not enough.

Editor’s Note: We would like to thank Nick McCall for coordinating the Last Word column for DICTA since 2008. This marks his 100th column featuring fun and interesting stories about bar members.

“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 2017

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