DICTA.January 2017

Legal Update: Tennessee Adopts Nonmutual Collateral Estoppel . . . Page 11 Schooled in Ethics: Self-Reporting a Lawyer’s Professional Misconduct . . . Page 21

A Monthly Publication of the Knoxville Bar Association | January 2017

LESSONS FROM KNOXVILLE COURT REPORTERS

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DICTA

January 2017

In This Issue

Officers of the Knoxville Bar Association

Cover Story

January 2017

16 Lessons from

Knoxville Court Reporters

Critical Focus 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

Tennessee Adopts Nonmutual Collateral Estoppel

Wage Garnishments for Tennessee Employers Just Became More Complicated

Self-Reporting a Lawyer’s Professional Misconduct

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Lacey Dillon Programs Administrator

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

Tracy Chain LRIS Administrator

Brittany Headrick LRIS Assistant

Volume 44, Issue 1

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.

January 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

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

Practice Tips

Advice from Two Veteran Court Reporters

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Marsha S. Watson Executive Director

Around the Community

A Shot at Life: District Attorney

Announces Vivitrol-Based

Treatment for Incarcerated Opioid Addicts

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The Knoxville Bar Association Staff

President’s Message

2017—A Time for Gratitude and an Opportunity to Serve

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Legal Update

Management Counsel: Law Practice 101

Schooled in Ethics

Conventional Wisdom 6

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10

14

15

19

23

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Attorney Profile

2017 Barristers President Samantha Parris

Outside My Office Window

You’ve Got to Have Hope

Governors’ Award Profile

Mark E. Stephens – 2016 Recipient KBA Governors’ Award

Hello My Name Is

Luke Durham

Thankworthy

A Simple Invitation

Well Read

Almighty by Dan Zak

Long Winded

Annual Meeting Running Diary

Life Hacks

Life Hacks To Make Travel to Paradise Even More Heavenly

Legal Market

25 Bill & Phil’s Gadget of the Month Google Home Digital Assistant

27 Evolving Legal Services Marketplace Current and Future State of the

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Of Local Lore and Lawyers

Claude Galbreath Swafford:

Trailblazing Lawyer, Leader, & Educator

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Common Ground

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

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event

EVENT CALENDAR & SECTION NOTICES

Section Notices

calendar

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

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

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

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

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

January

n 10 Professionalism Committee n 11 Veterans Legal Clinic n 12 Lunch & Learn n 12 Judicial Committee n 16 Diversity in the Profession Committee n 18 Board of Governors Meeting n 24 Bar Leaders Planning Meeting n 31 CLE Committee Meeting

February n6

ADR Section CLE

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).

n 8 Barristers Access to Justice Committee

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

n 14 Professionalism Committee

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. The featured speaker with be Commissioner Kevin Triplett of 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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DICTA

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Barristers Executive Committee

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Judicial Committee

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Lunch & Learn

n 15 Board of Governors Meeting n 20 Diversity in the Profession Committee

Mark Your Calendar Law Practice Today Expo April 6 & 7 Lawyerpalooza @ Scruffy City Hall April 27 Law Day Luncheon & CLE May 3 Spring Memorial Service May 12 Chancery Court Bench Bar CLE May 19 Supreme Court Dinner September 6 Fall Memorial Service November 17 Ethics Bowl XI CLE December 1 Barristers Elections & Holiday Party December 6 Annual Meeting & Elections December 8

January 2017

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

2017—A TIME FOR GRATITUDE AND AN OPPORTUNITY TO SERVE

Thank you for this opportunity to serve as President of the Knoxville Bar Association. And, with heart felt and deepest gratitude, thank you for your continued commitment of service to this bar association and the people of this community in need of legal services.

So many of our KBA members are active in committees and sections of the KBA. I want to encourage those of you who are not currently an active member of a committee or section to become more involved in 2017. And, those of you who are currently serving as a committee or section member or as a chair or co-chair, I am thankful for your service to the KBA and want to encourage you to reach out to attorneys that you believe would benefit from becoming more involved in the KBA.

The KBA has over twenty-five (25) different committees and sections. These range from the Functions Committee that puts together great KBA social events like Lawyerpalooza II (a music festival featuring our local lawyer talent) which will be held on April 27th this year (mark your calendars!) to the KBA Professionalism Committee, Co-Chaired

by Garry Ferraris and Chancellor John Weaver. The Professionalism Committee reports to the KBA Board of Governors on ethics issues and is responsible for developing programs to maintain the highest legal professional standards and practices, including, reviewing and commenting on Tennessee Supreme Court rule changes such as changes to the Rules of Professional Conduct. If you have questions about what a particular committee or section does or how often they meet, you can look on the KBA website at www.knoxbar.org, call the KBA offices at (865)522-6522, or call or e-mail me and I will try to connect you with a particular committee or section that interests you. There is something here for everyone. “We Want You!” and we want you to get the most out of your bar association membership.

When I was a “baby” lawyer as an associate at Kramer Rayson LLP, it was a given that you should be a bar association member, national, state and local, but especially the local bar association. My first real involvement with the KBA was as a member of the KBA Continuing Legal Education Committee. My current law partner, Adrienne Anderson, was a Co-Chair of the CLE Committee when I started practicing law. She said: “You need to be on the CLE Committee with me. We meet at noon next Tuesday. I’ll come by your office and we can walk to the meeting together.” And, that started my journey of bar service with the KBA. I believe Adrienne’s simple gesture of asking me to be on the CLE Committee with her is directly related to why I now have the opportunity to serve as the KBA President. I have been a member of the CLE Committee for over 18 years now, beginning with my first year of practice in 1998 when Adrienne made that simple “ask.” My involvement on the CLE Committee has given me the chance to interact with lawyers and judges that I probably would not have encountered had I not been the CLE Committee member responsible for calling them and asking them to participate as a speaker in a CLE Program. Many of the lawyers that I met through my bar service are in different practice areas than I am in and many of the judges preside over courts both here and in surrounding counties that I may have never entered or only infrequently entered. Since coming on the KBA Board of Governors, I have been a member of many other KBA committees and have had similar experiences that have given me the opportunity to build professional relationships. I am sure many of you have had similar KBA experiences and have met life-long colleagues and friends through the KBA. January 2017

All you need to do is ask someone to get involved. Or, if you know someone that used to be more involved in KBA activities, but has taken some time away, ask them to join you for a KBA social event or meeting this year in hopes of getting them re-engaged. If you served on a committee a long time ago and have not been active with a committee or section for a while, re-join that committee or try something new.

I have found that the practice of law like so many other areas of life is about relationships. The KBA provides lawyers a perfect venue to build long-lasting professional relationships. Advice for new lawyers in particular – life will be better if you get to know other lawyers in a context outside of an adversarial proceeding. The KBA gives you this unique opportunity you really cannot get anywhere else. Recently, I have had the good fortune of attending several KBA functions that have introduced me to many newly admitted Knoxville attorneys as well as law students that are interested in making Knoxville their home after law school. One of those events was the Diversity in Knoxville Program & Reception this past October co-sponsored by the KBA’s Diversity in the Profession Committee, the University of Tennessee College of Law and the LMU-Duncan School of Law. Another event was a KBA Barristers social event in November held at Suttree’s on Gay Street. I met so many impressive young lawyers and aspiring lawyers that are interested in making a difference in this community. KBA members need to reach out to these new attorneys to welcome them to the practice of law and make sure they get engaged in our bar association.

We need to remember that these newly admitted attorneys and those coming after them are the future providers of legal services to this community. I believe we have a responsibility to forge professional relationships with them and introduce them to our bar association that stands ready to help make their law career successful. All you have to do is what Adrienne fortunately did for me – make that simple “ask.”

DICTA

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AT TO R N E Y P R O F I L E By: Elizabeth Maxey Shepherd & Associates

Long

2017 BARRISTERS PRESIDENT SAMANTHA PARRIS

Samantha Parris is not afraid of getting her hands dirty or working hard. While some of you may be aware that she opened her own practice, the Law Office of Samantha Parris, in December 2014, most of you probably don’t know that this isn’t her first business venture. In college, she ran her own senior assistance business and maintained a roster of regular clients in Fountain City. While this was hard work, Samantha preferred it to cleaning out the lines for the drink dispensers at Arby’s, where she worked during her senior year of high school (don’t worry, she still eats there from time to time!). Samantha also worked in the call center at Talbot’s, where she encountered more than her fair share of cranky callers. The patience Samantha cultivated while at the call center prepared her for working with the most difficult clients.

Her previous employment experiences taught her valuable lessons about running a business and the merits of hard work and persistence.

Those experiences, combined with a lifelong love of learning instilled in her by her mother, an educator, inspired her to go to college and eventually on to law school.

Samantha is a Knoxville native and graduated from Gibbs High School in 2000. She attended the University of Tennessee, where she graduated in 2004 with a Bachelor of Science in Business Administration. After college, she briefly considered becoming an accountant before she decided to inflict a different kind of torture on herself and enroll in law school. She attended the University of Tennessee College of Law and received her J.D. in 2007. While at UT Law, she was active in Phi Alpha Delta, Law Women, the Business and Tax Law Association, and other organizations.

After graduation, she joined the firm Burroughs, Collins & Newcomb, PLC as an associate and worked there for seven years before opening her own firm. Her practice areas include estate planning and probate, conservatorships, and business formations. With her office located on Central Avenue Pike, she enjoys being a part of the North Knoxville community and serving a wide variety of clients. One of her goals is to educate individuals in the community on the variety of ways in which they can benefit from estate planning and other legal services.

One of the highlights of running her own firm is the freedom and

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flexibility Samantha enjoys. She is devoted to her family and spends a lot of time with her sister, Alexa, and her nephews, Zane and Zach. Many weekends, you will find her on the sidelines of their soccer or baseball games, cheering them on. Another benefit of being her own boss is the ability to bring her two small dogs, Bonnie and Clyde, to work with her or to take off work early in order to pursue some of her hobbies. In her spare time, Samantha enjoys outdoor activities, like geocaching and hiking as well as going to movies and indulging her creative side by making wreaths and painting.

Samantha enjoys traveling with her family to the beach and to Fall Creek Falls each year. Her mother’s side of the family is Scottish, and she enjoys going to the Smoky Mountain Scottish Festival & Games each year.

Samantha is also a huge UT football fan. One of her highlights of 2016 was attending the Battle at Bristol with approximately 150,000 fellow fans. Finally, Samantha maintains an avid curiosity about the world. She loves reading about politics and current affairs and has been known to engage in a lively debate about politics on occasion.

As busy as she is running her practice, Samantha remains very involved in the Knoxville Bar and the community. As a member of Barristers, Samantha has been on the Volunteer Breakfast Committee and the Athletics Committee, has co-chaired the Hunger and Poverty Relief Committee, and has served as Treasurer and Vice-President.

She serves on the CLE Committee and the LRIS Committee of the Knoxville Bar Association. She has served as Secretary, President Elect, and President of the Knoxville Chapter of the Society of Financial Service Professionals. Samantha is a member of the Board of Directors for the Fountain City Business & Professional Association. Samantha is also a member of the Tennessee Bar Association, East Tennessee Lawyers Association for Women, and Knoxville Estate Planning Council.

Samantha speaks to numerous community groups on the topics of estate planning and administration and conservatorships.

As Barristers President, Samantha hopes to continue past President Rachel’s Hurt’s efforts in increasing the attendance at Barristers meetings and events. She also plans to establish a Barristers mentoring program which would enable the bar’s newest lawyers to receive advice from more experienced Barristers. Samantha looks forward to serving as the 2017 Barristers President and is ready to roll up her sleeves and get to work.

DICTA

January 2017

AROUND THE COMMUNITY By: Charme P. Allen Knox County District Attorney General

A SHOT AT LIFE: DISTRICT ATTORNEY ANNOUNCES VIVITROL-BASED TREATMENT FOR INCARCERATED OPIOID ADDICTS

The numbers are staggering. The Tennessee Department of Health reports that 1,451 Tennesseans died from drug overdoses in 2015. Of those 1,451 deaths, 153 occurred in Knox County. While the statewide rate for overdose deaths in 2015 was 22 per 100,000, Knox County’s rate was 34 deaths for every 100,000 citizens – the highest rate for any urban county in Tennessee. Sadly, that rate likely will rise in 2016. As of December 1, records maintained in my office indicate that there have been 210 suspected overdose deaths in Knox County in 2016.

The rising death count shows no signs of abating, as an endless supply of opioid medications and heroin is fueling this deadly epidemic.1 In 2015, health care professionals in Tennessee wrote over 7.8 million opioid prescriptions – 1.18 prescriptions for every man, woman, and child in the state.2 More adults nationwide use prescription painkillers than use tobacco.3 When prescription medication cannot be found, or when it is unaffordable, addicts turn to the cheaper and more deadly alternative of heroin.4

For law enforcement purposes, the players in this epidemic can be divided into two groups. The first group is comprised of the dealers and distributors who are illegally funneling these dangerous drugs into our neighborhoods. The second group is comprised of the opioid addicts who are creating the demand for this illicit trade. My plan for dealing with the first group is simple: We will aggressively prosecute those who deal drugs in our community. Drug dealers, especially those who ply their trade with guns and violence, can expect to receive the harshest sentences allowable by law for crimes committed in Knox County. We will continue to utilize the Second Degree Murder statute to prosecute drug dealers when a user overdoses on their product. The gravity of the problem calls for this type of response.

The second group – the opioid consumers who have turned to crime to pay for their habits – presents a much more complicated problem. Up until now, the only tool in our prosecutorial toolbox for dealing with these offenders has been the traditional approach of probation followed by increasing periods of incarceration. Unfortunately, opioid addicts almost assuredly relapse after detoxication,5 meaning that the user will soon be back in the same cycle of addiction/crime/incarceration. To stop this endless cycle of recidivism, we must take a new approach to attack the root of the problem.

This is why I have partnered with the Knox County Sheriff ’s Office, the Knoxville Police Department, and the Helen Ross McNabb Center to obtain grant funding through the Trinity Foundation for a Medication Assisted Treatment (“MAT”) program in Knox County. Our MAT pilot program will begin in early 2017 and will utilize monthly Vivitrol injections to treat persons who are currently incarcerated for committing low-level crimes to support their opioid habit. Vivitrol is an opioid antagonist, meaning that it blocks the brain’s ability to feel pleasure from opioid or alcohol abuse. Simply put, Vivitrol users are physically unable to get high from either opioids or alcohol. And, unlike opioid substitutes such as Methadone or Suboxone, Vivitrol is not itself addicting, nor does it have the potential for abuse or a value on the streets.

In July, I traveled to Barnstable County, Massachusetts, with other local officials to see firsthand the results of the Vivitrol program in that jurisdiction, the first of its kind in the nation. Since the Barnstable January 2017

County Sheriff introduced its Vivitrol program in 2012, 82% of program participants have avoided reincarceration at a Barnstable County facility.

This means that their total recidivism rate for MAT participants is an unheard-of 18%.

The possibility of trading an 85% opioid-relapse rate for an 18% recidivism rate is what we desperately need as we battle this scourge locally. If we could bring these results to Knox County, we could truly “flip the field” in the opioid battle, drastically cut the local demand for these drugs, and focus all of our efforts on prosecuting the gangs and criminals who push these drugs into our neighborhoods.

Our grant funds Vivitrol-based treatment for 30 participants for a period of one year. To be considered for the program, a candidate must be a Knox County resident, cannot have a prior conviction for a violent crime, must be facing a considerable jail sentence for a nonviolent offense, and must be suffering from an opioid addiction. Most importantly, the candidate must truly want to participate in the program and must have a support system outside of the jail that includes an acceptable residential plan.

Once a candidate is accepted into the program, he/she will be released to the care of the professionals at the Helen Ross McNabb Center, who will administer the Vivitrol injections, provide outpatient treatment, and conduct random drug screens. Once the participant completes the 12-month regimen, Helen Ross McNabb will provide an additional six months of aftercare. Importantly, MAT participants who fail to abide by the terms of the program will be reported to my office.

Their release will be revoked, and they will return to jail. Participation in the MAT program is a valuable opportunity, and we will work hard to ensure that is only available to criminal defendants who truly want to change their lives.

One of the best aspects of this program is that it comes as a complete windfall to the taxpayers of Knox County. The Trinity Foundation grant includes $150,000 for the services provided by the Helen Ross McNabb Center. Alkermes Incorporated, the manufacturer of Vivitrol, is donating 360 doses to the program, at $1,100 per dose.

The total value of the grant is well over $500,000.

The benefits, on the other hand, could be immeasurable. In the short term, the program will relieve the costs of housing 30 inmates in a crowded jail for 12 months and give those 30 inmates a better chance of living normal, productive lives. In the long term, this could be the beginning of an approach that turns the tide of the opioid epidemic in Knox County.

1 The Tennessee Department of Health estimates that nearly 72% of the 1,451 overdose deaths in 2015 involved opioids.

2 Holly Fletcher, There Are More Opioid Prescriptions than People in Tennessee, THE TENNESSEAN, Sept. 19, 2016.

3 Anita Wadhwani, Opioid Use Overtakes Tobacco, THE TENNESSEAN, Nov. 15, 2016.

4 According to CDC data, more Americans died in 2015 from heroin overdoses than from gun homicides. Christopher Ingraham, Heroin Deaths Surpass Gun Homicides for the First Time, CDC Data Shows, THE WASHINGTON POST, Dec. 8, 2016.

5 Most sources indicate that the relapse rate for opioid addiction is as high as 85%.

DICTA

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

Jr.

YOU’VE GOT TO HAVE HOPE

I once rolled my eyes at people who talked about their dogs like they were children. That was until I got Hope. Roll your eyes if you must.

Dog ownership is prevalent in our firm, especially Golden Retrievers. Just between the Priests and the Pryors, we have six Goldens.

Maybe there is something about the stress of our profession that requires a good dog. Two years into my marriage to Nancy and our new life with four kids we decided “why not add more chaos?!” We decided to get a dog. We had a couple of “trial runs,” trying both the puppy route and an older rescue dog. The most unforgettable was a Beagle mix named Peanut. She was the cutest puppy ever delivered upon this Earth but apparently was a mix of a Beagle and Satan. It became increasingly clear there was a strain of Great Dane and schizophrenia in the lineage. That dog tore up the house, the landscaping, and, finally, Nancy’s leg. Shortly after our baby, Andy, turned 5, I looked out the front window to see Peanut dragging him from the front yard into the shrubbery like a lion would an antelope. A “dog whisperer” left our home in tears, a broken woman. Nancy and I had given up Hope. Then she arrived.

Nancy found her online. We invited Hope for a visit. The people at the Golden Retriever Rescue don’t mess around. They make home visits.

There were many requirements. We were vetted and interviewed over the phone. We scurried around getting the house ready like we were getting a visit from the Queen. After some subtle and healable heartbreak with the previous attempts at a canine addition, we decided to lie to our children.

It is often the best policy. “A nice lady is coming to talk to Daddy about a case” Nancy said. “she might bring her dog with her.” We didn’t want them to think this dog was staying.

It was love at first sight…for all 6 of us. She answered to Hope and had recently been found with her litter mate, abandoned in a cold world. She changed our lives. She collapsed at the feet of my four kids, who proceeded to climb all over her. I don’t think the lady was there four minutes before I blew the cover and said, “We are keeping her!!!” Years of beautiful chaos ensued.

As my children came of age Hope pulled wagons, dressed up for Halloween and was a reindeer every Christmas. She was equal parts pet, confidante, friend and child. She played multiple roles in homemade stage presentations and plays. She healed broken hearts and warmed cold feet. As the red on her face turned white, Nancy decided we needed a puppy. I thought it was a terrible idea and argued my point with both logic and supporting facts. So, we got one. Sophie blew into our lives like a tornado. As docile as Hope was, Sophie was the opposite. Hope, first annoyed, began to mother her, train her if you will. The two of them

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provided constant entertainment. Hope was scared of the fireplace, Sophie wasn’t. Hope loved tennis balls, Sophie didn’t. Sophie slept in an old chair, Hope on the floor. Neither could swim and both thought they were humans. Every night we adhered to ritual - I came into the girl’s shared room with a guitar and the two dogs for a “Hope Prayer.” A play of sorts was performed where I spoke a prayer as though Hope was talking to God. The girls would giggle with their heads bowed and their eyes closed as Hope prayed for food to be dropped from the table and that Sophie would sleep more. Songs were made up and performed with my poor guitar accompaniment (two favorites were “I Have a Wet Nose, How bout You” and “I Love Cinnamon Rolls”). It was my favorite time of the day.

In the final year of her life, Hope threw caution to the wind. Never a beggar and ever obedient, she ate an entire hickory sausage log off the coffee table without permission. She began climbing into Sophie’s chair.

Sophie was okay with it. The two of them were inseparable - Sophie loving Hope, Hope tolerating Sophie - until that inevitable day came.“Something is wrong with Hope,” was the text. The little girls, who’d been smitten when the nice lady walked Hope into our lives, were Seniors in High School when the day came. They held vigil with Nancy and Sophie until I got home. The boys disappeared into their rooms while decisions were being made. Women are stronger than men.

I’ve always believed it. Nancy, Cori, Shelby, Sophie and I sat with her until Hope’s predicament made it obvious a trip to the vet was needed. We left Sophie with the boys, and in the middle of the night, in a room of a pet hospital, the four of us linked hands and sat on the floor surrounding our Hope. We laughed through tears as we shared our favorite stories and cried unrestrained tears in one last concert for our girl. It was a beautiful moment.

Sophie is now 8 and every bit the puppy she was when she came to us. We are convinced she kept Hope young. She mopes like a baby when the girls leave for college and rejoices when we are all together - In this way, she is just like me. She sits at my feet when I’m writing and working in my home office. She listens to closing arguments and opening statements. Hope opened a world to us we had not previously known, and the two of them together have brought so much joy and love into our family. My parents ended up getting one…and then two Golden Retrievers, all because of that day the woman brought Hope into our home. If anyone asks me my recommendation on dog ownership, my reply is always the same, “You’ve got to have Hope!”

DICTA

January 2017

PRACTICE TIPS By: Ken Gibson Gibson Court Reporting

Jimmie Jane McConnell

Miller & Miller Court Reporting (photo unavailable)

ADVICE FROM TWO VETERAN COURT REPORTERS

This issue we hear from two seasoned court reporters who have seen lawyers practicing in this area for decades. They both have some words of advice for making the record. Making the record is the one skill all of the court reporters I interviewed felt was the most important to emphasize to lawyers. Ken Gibson provides us with specific tips for entering and marking exhibits. Jimmie Jane McConnell offers a list of Do’s and Don’ts. This is a great refresher for all lawyers regardless of your years of experience.

Ken Gibson: Tips of Entering and Marking Exhibits

Entering and marking exhibits in an organized manner will create a record that is easy for attorneys and support staff to follow and understand. The court reporter is the custodian of the record, and that includes the exhibits. Here are some rules to observe, not necessarily in any order of importance. They are all important!

mess. Sometimes the exhibits that were pre-marked don’t even get introduced, so you skip numbers. That’s very confusing for your paralegals and secretaries that have to work with a sloppy record.

Jimmie Jane McConnell – D0’s and DON’TS 1. Don’t talk on top each other. Be respectful. It makes it easier for the court reporter to take down the record. The court reporter only has two hands or one voice, and can only report what one person says at a time.

2. Don’t walk away or turn your back. The court reporter is the one that needs to hear and understand clearly what is being said by not only you, but also what is being said by the witness. If a clarification needs to be made, it is the attorney’s responsibility to do so.

3. Instruct the witness to answer “yes” or “no.”

Tip No. 1. Don’t take the exhibit stickers away from the court reporter so you can mark the exhibits yourself. If speed is an issue, speak to the court reporter about that so he/she can accommodate you.

Tip No. 2. Before discussing an exhibit on the record, hand it to the court reporter to be marked. That way everyone in the room has a frame of reference for what is being discussed. Later, when the transcript is reviewed by others, they will know that the discussion concerning the exhibit begins at this spot in the transcript. It’s a time saver in the long run.

Tip No. 3. When possible, bring copies of exhibits you expect to introduce for opposing counsel. That will prevent opposing counsel from having to rifle through the stack of original exhibits to find something. There is always the possibility that the original exhibit will get misplaced in an attorney’s file folder if they forget to return it to the court reporter.

Tip No. 4. Court Reporters despise late filed exhibits. The record is never complete when a late filed exhibit is asked for. We don’t go back and change the record from “Late Filed Exhibit” to “Exhibit” when an exhibit is produced. So people who read the transcript (sometimes years later) don’t know the status of the exhibit. There will be no record of it being produced. There is no time limit for production of late filed exhibits like there is when you file a request for production of documents.

You can file a motion to compel production of late filed exhibits in Blount County, but in most jurisdictions, they have no idea what a late filed exhibit is. Your paralegal/secretary won’t know who is supposed to provide late filed exhibits so they call the court reporter. The court reporter should not be the one responsible for obtaining records from witnesses, experts, parties or others. Late filed documents should be reviewed by attorneys before they are produced to the court reporter because there might be privileged information on that document. A court reporter has no authority to make someone produce anything and a court reporter’s request for an exhibit carries little weight.

4. On the record and off the record requests must be by agreement of all counsel. Sometimes the court reporter will ask, if it isn’t clear. Do not get upset with the court reporter. Chitchatting can turn into an actual question.

5. Don’t touch the court reporter’s hands, machine or arms.

6. Don’t ask the court reporter to offer an opinion after a deposition or court proceeding. We are not lawyers and we cannot make legal assumptions.

7. Don’t ask us to insert or remove items from the record. If there is a pause, we cannot insert that into the record. However, there are proper parentheticals that we can insert. For example, when a break is requested. (A break is requested.)

8. Don’t ask us to remove a cuss word you have used in the heat of a debate. You can request us to “strike that,” which may or may not be in the deposition. Only a Judge can instruct us to “strike that” in a court proceeding. We must report verbatim what is said.

9. Don’t ask us to provide you a copy of a transcript and not advise the opposing counsel. The statute says “. . . all parties to the deposition, including the deponent, are entitled to a transcript upon payment of same.” We are ethically bound to notify all parties when one side or the other orders a transcript.

10. Don’t provide copies of our transcripts to other counsel. This is how we make a living and pay our bills. If an attorney wants a copy, that attorney should order a “certified” copy from the court reporter.

11. Allow the court reporter to take a break. Some attorneys get up and go out of the room and don’t allow the court reporter to take a break also. We need to take a break and give our hands a rest.

Tip No. 5. Pre-marking exhibits is usually a bad idea. They are never introduced in the order you intended, so you wind up with a jumbled January 2017

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GOVERNORS’ AWARD PROFILE By: William Vines III Butler, Vines & Babb, PLLC

MARK E. STEPHENS – 2016 RECIPIENT KBA GOVERNORS’ AWARD

Each year, the Knoxville Bar Association bestows its highest honor – The Governors’ Award – upon an attorney who has distinguished himself/ herself as a role model within the legal community. This award serves as recognition of the distinction and honor an attorney has brought to the legal profession by way of enduring, faithful, and distinguished service. At this years’ annual meeting on December 9th, the KBA presented this award to Mark Stephens, Knox County Public Defender.

A 1979 graduate of the University of Tennessee College of Law, Mark began his legal career in private practice before serving as an assistant district attorney. He was elected Public Defender in 1990 and is the only elected Public Defender Knox County has ever had! Under Mark’s direction, the Public Defender’s Office has achieved national acclaim for its innovative approach to criminal representation and efforts to reduce recidivism.

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After representing indigent defendants for a number of years, Mark grew concerned with the many repeat offenders who continually utilize indigent legal services. Recognizing that more could be done for deserving clients than simply addressing their criminal charges, he worked with legal experts at Harvard’s Kennedy School of Government to develop a new, more holistic approach to representation that might help individuals avoid committing future crimes.

In 2003, he founded the Community Law Office, a program that has seen tremendous success and brings special pride to our legal community. The Community Law Office aims to help clients break the cycle of criminal behavior by addressing not only their legal issues, but the social issues underlying their behavior.

For those willing to receive help, the program provides access to social workers who assist clients with vocational and employment needs, addiction, and health related issues. These social workers help to develop a “life plan” for each participant. Over forty volunteers assist in administering the program, as well as numerous organizations that have formed Community Law Office partnerships, including the Helen Ross McNabb Center, the Boys and Girls Club, and Cherokee Mental Health. The program now serves as a model for public defender offices throughout the country, with public defenders, criminal defense attorneys, and legal scholars often studying the program. This program truly makes our profession proud.

Not surprisingly, Mark’s work has brought numerous awards.

In 2001, he was presented with the Stephen B. Bright Award by the organization Gideon’s Promise. He has twice earned the Robert Richie Award from the Tennessee Association of Criminal Defense Lawyers, once in 2000 and again in 2007. He also received the KBA Law and Liberty Award in 1995 and the University of Tennessee Pro Bono Award in 2001.

He has been active in legal associations. He is presently the chairman of the National Association for Public Defenders and a Board Member of Gideon’s Promise, a public defender training center named for the landmark Supreme Court case requiring states to provide counsel for indigent criminal defendants. Mark has also served as President of the Tennessee Public Defenders Conference and presently serves as adjunct faculty member at the University of Tennessee College of Law.

Mark and his wife, Lynette, have three children, Jessica, Elizabeth and Madeline. The presenter stated the Knoxville Bar Association was proud of Mark’s work and expressed appreciation on behalf of the Association. Mark is an outstanding member of the Knoxville bar and is deserving of our Association’s highest honor.

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January 2017

L E G A L U P DAT E By: Matthew R. Lyon LMU Duncan School of Law

TENNESSEE ADOPTS NONMUTUAL COLLATERAL ESTOPPEL

The Tennessee Supreme Court has had an active year, overturning established Tennessee precedent in areas as varied as summary judgment,1 error coram nobis,2 and search and seizure.3 The court continued its “modernization” of Tennessee law in Bowen ex rel. Doe v. Arnold.4 This unanimous opinion abolishes the mutuality requirement for both defensive and offensive use of collateral estoppel in Tennessee.5 The Mutuality Requirement for Collateral Estoppel

The common law doctrine of collateral estoppel precludes the relitigation of an issue that: (1) is identical to an issue that was raised in a prior suit that resulted in a valid final judgment; (2) was actually litigated and determined in the prior litigation; and (3) was necessary to the judgment in the first action.6 Historically, the collateral estoppel doctrine also required that the subsequent action involve the same parties or their privies. This “mutuality” requirement rested on due process ideals; namely, the notion that one should not benefit from collateral estoppel unless one also was bound by the prior judgment. The mutuality requirement has eroded over time, however, thereby expanding the circumstances in which collateral estoppel can be applied.

Opinions adopting the principal of nonmutual collateral estoppel have distinguished between “defensive” and “offensive” use of collateral estoppel. “Defensive collateral estoppel refers to a defendant seeking to prevent a plaintiff from relitigating an issue that the plaintiff has previously litigated and lost.”7 “Offensive collateral estoppel refers to a plaintiff attempting to prevent a defendant from relitigating an issue that the defendant has previously litigated and lost.”8 Defensive collateral estoppel has traditionally been more favored than offensive collateral estoppel,9 again for due process reasons.

An early, influential opinion rejecting the mutuality requirement was Bernhard v. Bank of America National Trust and Savings Association.10 In Bernhard, the California Supreme Court held that there is “no compelling reason” for the party asserting collateral estoppel to “have been a party, or in privity with a party, to the earlier litigation.”11 In Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation,12 the U.S. Supreme Court abandoned mutuality as an element of the federal common law of collateral estoppel by permitting defensive collateral estoppel. The Court strongly suggested it was no “longer tenable to afford a litigant more than one full and fair opportunity for judicial resolution of the same issue.”13

Subsequently, in Parklane Hosiery Co. v. Shore,14 the U.S. Supreme Court allowed for limited use of offensive collateral estoppel. The Court observed that defensive and offensive collateral estoppel are treated differently because “offensive use of collateral estoppel does not promote judicial economy in the same manner as defensive use does” and may, in certain circumstances, be unfair to the defendant.15 These reasons should not prevent a trial court from using its discretion to allow offensive collateral estoppel, however, so long as the plaintiff could not easily have joined in the earlier action or the application of collateral estoppel would not be unfair to the defendant.16

The Bowen Opinion

Despite the modern trend in many jurisdictions to jettison the mutuality requirement, Tennessee continued to hold firm to it. As recently as 2009, the Tennessee Supreme Court confirmed that one of the requirements for collateral estoppel was “that the party against whom collateral estoppel is asserted was a party or is in privity with a party to the earlier proceeding.”17 Bowen, however, departs from the mutuality requirement.

Bowen arises from tragic circumstances: a boy was molested and raped by his mentor in a program offered by the Boys and Girls Clubs of Middle Tennessee and Big Brothers Big Sisters of Tennessee.18 The State charged the defendant, William E. Arnold, Jr., with aggravated sexual battery and rape of a child, and the boy’s mother, Ms. Bowen, filed a civil suit on his behalf against Mr. Arnold and the entities involved with the mentorship program.19 After the defendant was convicted, Ms. Bowen argued “that he was collaterally estopped from relitigating in the civil lawsuit the issue of ‘whether he raped and sexually battered’” her son.20 The trial court granted Ms. Bowen’s motion, holding that the mutuality requirement was met because the boy was in privity with the State from the criminal case.21 The Court of Appeals declined to hear the defendant’s interlocutory appeal,22 but the Supreme Court granted it.

Justice Clark’s opinion neatly summarizes the history of the mutuality requirement for collateral estoppel, highlighting that only three years after Parklane Hosiery, the Restatement (Second) of Judgments was published. Section 29 of that Restatement does not require mutuality for the application of collateral estoppel, instead focusing on whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the first suit.23 Courts have wide discretion in making this determination, and a set of enumerated factors in section 29 is designed to assist them. Section 85 states specifically that “[a] judgment in favor of the prosecuting authority is preclusive in favor of a third person in a civil action . . . [a]gainst the defendant in the criminal prosecution[.]”24 Since the U.S. Supreme Court’s opinions in Blonder-Tongue and Parklane Hosiery and the publication of the Restatement (Second) of Judgments, “an overwhelming majority of jurisdictions have . . . abrogated the traditional mutuality requirement” for both defensive and offensive collateral estoppel.25

With its decision in Bowen, Tennessee joins that majority.

Noting that the relitigation of issues previously decided “carries a considerable price tag in both money and time,”26 the court determined that Tennessee’s courts should be guided by section 29 with regard to defensive and offensive collateral estoppel generally, and section 85 with regard to the collateral estoppel effect of a criminal judgment in a subsequent civil case brought by or on behalf of the victim.27

Applying the new standard, the court held that the defendant was precluded from relitigating whether the rape and sexual battery occurred.

As in Parklane Hosiery, which also involved a prior government action, “Ms. Bowen could not have joined the criminal prosecution against Mr. Arnold, even if she had tried.”28 Moreover, the defendant had substantial procedural safeguards in his criminal case, such that precluding (Continued on Page 12)

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TENNESSEE ADOPTS NONMUTUAL COLLATERAL ESTOPPEL (Continued from Page 11) relitigation of this issue of fact would not be unfair to him.29 Indeed, Bowen may have been the perfect case for the court to adopt this new standard, because given the protections available to criminal defendants, “there is a stronger rationale for applying collateral estoppel against a former criminal defendant than for applying it against a party to a prior civil case.”30 Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235 (Tenn. 2015).

Frazier v. State, 495 S.W.3d 246 (Tenn. 2016).

3 State v. McCormick, 494 S.W.3d 673 (Tenn. 2016) (adopting community caretaking as an exception to the warrant requirement); State v. Reynolds, __ S.W.3d __, No. E2013-02309-SC-R11-CD, 2016 WL 6525856 (Tenn. Nov. 3, 2016) (adopting a good-faith exception to the exclusionary rule).

4 ___ S.W.3d ___, No. M2015-00762-SC-R11-CV, 2016 WL 5491022 (Tenn. Sept. 29, 2016).

5 Id. at *11. While the modern trend is to refer to the traditional doctrines of res judicata and collateral estoppel as “claim preclusion” and “issue preclusion,” respectively, the Bowen opinion uses the term “collateral estoppel” exclusively. Therefore, this article will use the same terminology.

6 See Mullins v. State, 294 S.W.3d 528, 534-35 (Tenn. 2009).

7 Bowen, 2016 WL 5491022, at *4.

1 2

12

Id. Id. 10 122 P.2d 892 (Cal. 1942).

11 Id. at 894.

12 402 U.S. 313 (1971).

13 Id. at 328.

14 439 U.S. 322 (1979).

15 Id. at 329.

16 Id. at 331.

17 Mullins, 294 S.W.3d at 535.

18 Bowen, 2016 WL 5491022, at *1.

19 Id. at *1-2.

20 Id. at *2.

21 Id. 22 See TENN. R. APP. P. 9.

23 Restatement (Second) of Judgments § 29 (1982).

24 Id. at § 85(2)(a).

25 Bowen, 2016 WL 5491022, at *8.

26 Id. at *9 (quoting Aetna Cas. & Sur. Co. v. Jones, 596 A.2d 414, 424 (Conn. 1991)).

27 Id. at *10.

28 Id. at *11.

29 Id. 30 Id. (citing Hopps v. Utica Mut. Ins. Co., 506 A.2d 294, 297 (N.H. 1985)).

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January 2017

MANAGEMENT COUNSEL: LAW OFFICE 101 By: John M. Lawhorn1 Frantz, McConnell & Seymour LLP

WAGE GARNISHMENTS FOR TENNESSEE EMPLOYERS JUST BECAME MORE COMPLICATED

In April 2016 Governor Haslam signed a bill that became effective September 1, 2016,2 which will likely increase the number of wage garnishments with which many Tennessee employers must contend. This is particularly true for employers that make regular use of independent contractor workers, because the bill appears to make independent contractors subject to wage garnishments.

A wage garnishment is a debt collection process set out within Tennessee’s garnishment statute.3 Generally speaking, a wage garnishment requires an employer to withhold a portion of a worker’s wages until a judgment against the worker is satisfied. Once a judgment is obtained, the judgment creditor can ask the court that entered the judgment to issue a summons to that person’s employer to answer the garnishment.4 After the garnishment summons is received, the employer must respond to the garnishment in writing5 and if wages are owed the garnished employee, the employer must withhold a specified amount of wages due the worker.6 The withheld income must be held subject to any court order, but ultimately forwarded to the court that issued the garnishment.7 Wage garnishments are ongoing in nature. Under the garnishment statute, the underlying judgment is a lien both on earnings due at the time of service of the garnishment summons, and on future earnings.8 The obligation to withhold future wages and pay them to the court continues either until the judgment is satisfied, or the expiration of six months.9 After six months, a new garnishment can be issued and the process continued. Most Tennessee employers who have even a moderate size work force will receive wage garnishments relating to judgments for past due child support, unpaid credit card debt, etc. Responding to wage garnishments can be time consuming, particularly when having to deal with a large payroll and a number of ongoing wage garnishments.

Before September 1, 2016 wage garnishments were limited to employees. This conclusion was inferential because the previous version of the statute applied only to “salaries, wages or other compensation due from the employer garnishee....” (italics added). This interpretation prevailed in 2015 in SunTrust Bank v Burke, where the Tennessee Court of Appeals was asked whether payments due an independent contractor for work performed are subject to the wage garnishment process.10 The Court determined that since the statute specifically used the term “employer,” which has a recognized legal meaning, it could not be applied to allow garnishment of payments due an independent contractor.11

The recent amendment to Tennessee’s wage garnishment statute appears intended to counter the Court’s decision. While that no doubt is the safe construction, the General Assembly could have said as much, but did not. Instead, the new version of Tenn. Code Ann. §26-2-214 attempts to achieve the desired result by implication, because it no longer references “salaries, wages or other compensation due from the employer garnishee.” It now more broadly applies to “earnings due from a garnishee.” In fact, the term “employer” is no longer defined in the statute. Moreover, while the amendment of §26-2-214 deleted all references to “employer garnishee,” that term remains in §26-2-215, which provides “[t]he employer garnishee shall remit to the court all moneys withheld as provided under §26-2-214 not less than one (1) time each calendar thirty (30) days.”

Despite the less than direct amendatory language and internal inconsistency between §26-2-214 and 215, it is difficult to escape the conclusion that the General Assembly intended to subject payments due independent contractors to the same wage garnishment process as wages due employees. Evidence of this is perhaps best found in a newly-added subsection (c), which provides “[n]othing in this section with respect to the relationship between the judgment debtor and the garnishee shall be construed to affect the underlying relationship of the parties, including, but not limited to, the relationship of employer-employee or the independent contractor relationship as otherwise provided by law.”12

Tennessee employers making regular use of independent contractor labor need to be aware that their potential exposure to wage garnishments has increased. Payroll managers should be prepared to appropriately respond to garnishment summons for payments owed to independent contractors, not just traditional employees. Tennessee’s wage garnishment statute imposes very substantial consequences on garnishees that fail to appropriately respond to garnishments. Ultimately, failure to respond can result in the garnishee’s liability for all of the underlying judgment.13

It is important to understand that this recent change to Tennessee’s wage garnishment statute did not occur in a vacuum. It instead coincides with ever-increasing efforts by several federal government agencies and many states to crack down on misclassification of workers as independent contractors. Several of the states joining in this effort include some of the more business friendly “red” states. These states are recognizing that when employers fail to properly classify workers as employees, the state is deprived of payroll tax revenue, unemployment tax contributions, and may be left with the responsibility of providing medical and subsistence benefits to persons who were injured while working, but who received no workers compensation benefits on account of being classified as an independent contractor. Tennessee has yet to formally announce it is joining that movement. The recent change to the wage garnishment statute does signal, however, that the General Assembly recognizes the potential abuses associated with employee misclassification and is willing to address that issue, at least in piecemeal fashion.

1 John Lawhorn is the author of the East Tennessee Employment Law Adviser blog, available at www.fmsllp.com.

2 Pub. Ch. 851, codified at Tenn. Code Ann. § 26-2-202 and -214.

3 Tenn. Code Ann. §26-2-101 et seq.

4 Tenn. Code Ann. §26-2-203.

5 Tenn. Code Ann. §26-2-204 and §26-2-214.

6 The portion of the worker’s “disposable earnings” that may be withheld pursuant to the garnishment is determined according to a calculation set out in Tenn. Code Ann. §26-2106. The term “disposable earnings is defined at Tenn. Code Ann. §26-2-102(2).

7 Tenn. Code Ann. §26-2-214(b)(1).

8 Tenn. Code Ann. §26-2-214(b)(1) 9 Id. 10 SunTrust Bank v Burke, 491 S.W.3d 693 (Tenn. App. 2015); perm. for appeal denied, 2015 Tenn. LEXIS 537 (Tenn. 2015).

11 Id. 12 Tenn. Code Ann. §26-2-214(c).

13 Tenn. Code Ann. §26-2-209.

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

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HELLO MY NAME IS

. . .

LUKE DURHAM

By: Katie Ogle McDonald, Levy & Taylor

Nashville native Luke Durham has been working since 2012 to leave his mark on the Knoxville legal community, and as a young attorney, he is certainly succeeding. Luke is employed at Tarpy, Cox, Fleishman & Leveille, and primarily practices general civil litigation, although he is well-versed in many other areas of civil practice. I first met Luke when he and I had been collectively practicing for about two months. I was the Guardian ad litem for four young children in Knox County Juvenile Court, and Luke was counsel for the father of these children. As the case continued on for quite some time, I had the opportunity to get to know Luke, and was always impressed at his ability to keep this particular client calm, even in difficult situations.

Prior to his career as an attorney, Luke earned a tennis scholarship to Division I Western Kentucky University after graduating from Father Ryan High School in Nashville. During his time at WKU, Luke was active in the Lamda Chi Alpha fraternity and transferred his membership when he came to the University of Tennessee his sophomore year. After graduating college with a degree in Business, Luke moved to Charleston, South Carolina and began law school at Charleston School of Law. Luke also left his mark on Charleston School of Law, as he was involved in numerous organizations and clubs. During his law school tenure, Luke was the Executive Articles Director of the MALABU Law Review, which focuses solely on maritime and admiralty law. In addition to law journal, he was also preparing for a career in civil litigation, and was on both the mock trial and moot court teams.

Luke has also been politically active in his community and served as the President of Charleston Law Republicans during his time in law school. After returning to Knoxville in 2012, he was involved in Mitt Romney’s presidential campaign as the Executive Director for Knox County Polling.

Presently, Luke represents more than 100 Homeowner’s Associations, which is more than any other attorney in Knox County.

While litigation and client-control are areas in which Luke excels, he also knows the importance of contributing to your community outside the courtroom. He currently serves on the Board of Directors for the Boys and Girls Clubs of the Tennessee Valley and is a Knight in the local Knights of Columbus chapter.

Luke also continues to play tennis, and his team not only won the state USTA tournament last year, but then competed at the sectionals tournament in Mobile, Alabama. He is an avid follower of UT football and basketball and rarely misses any games. In fact, Luke hasn’t missed a home football game since he moved back to Knoxville in 2012. As a further note to his loyalty, Luke is a Tennessee Titans fan and never misses a Sunday, despite the recent performances of his hometown team.

This year, Luke had the honor of being sworn in to practice before the U.S. Supreme Court. Luke, Jed McKeehan, and Seth Oakes, who are also attorneys at Tarpy, Cox, Fleishman & Leville, were introduced to the Court by Congressman Jimmy Duncan, who then moved the Court to admit the three young attorneys.

When asked about plans for future practice, Luke comments that he loves what he’s doing, and the firm where he’s doing it. And as an attorney who’s been in court with him, I’m certain that he’ll continue to make an even larger mark in Knoxville in the years to come.

Jed McKeehan, Seth Oakes, and Luke Durham pose for a picture following their admittance to practice before the U.S. Supreme Court.

The trio of young attorneys were accompanied by Congressman Jimmy Duncan, who also introduced them before the Court.

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January 2017

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

A SIMPLE INVITATION

Since 1863, the U.S. has dedicated one day in November each year for giving thanks.1 For most, the list of reasons to be grateful has similar categories: family, friends, health, a place to call home, a good meal, a job that pays the bills. For some, there are special events: welcoming a service member home, surviving a natural disaster, the birth of the first grandbaby.

Then, there are the people who make the list: the person who sat with you when you got the bad news; the person who covered for you when you were overwhelmed; the person who kept you from doing something really stupid; the person who helped you pick up the pieces after you did something hese are the people who are stupid. These are “thankworthy.” They are the the people who people who, in the ordinary are “thankworthy.” course of life, have done something They are the people who, in the ordinary specific that changes a life. course of life, have done something specific that changes a life.

More than any other profession, lawyers ought to keep a “thankworthy” list. Our list goes beyond the typical group of relatives, companions, and friends. After all, that is how we got here.

Not too long ago, you couldn’t be a lawyer until after you spent years working side by side with a practicing attorney “reading the law” and more importantly, learning the practice of law.2 Although at some point, it was decided attending classes and taking a really hard test would suffice, the legal profession continues to recognize that lawyers investing time and resources into other lawyers is vital to the development of the law, the development of good lawyers, and most importantly, the provision of quality legal services to our clients.

That is why we have bar associations. In 1893, Nashville attorney G.N. Tillman captured this idea in his presentation to the Twelfth Annual Meeting of the TBA:

were worth a second look?

Since it was my idea, I will start with one of the people who is on my thankworthy list. In the Spring of 2007, I had been a stay-at-home mom, out of the workforce and the classroom for eight (8) years. I was considering law school and had already taken the LSAT, but there was still the question of whether that is what I wanted to do – or could do for that matter. I did not know any lawyers; no legal blood was in my genes.

I certainly was no Atticus Finch or Lt. Daniel Kaffee, and if Vincent Gambini was supposed to be aspirational, I would look for another career.

That is when I received an invitation from a Circuit Court Judge in Farmville, Virginia. He invited me to come spend a day in court to see what it was like. I made the drive, sat in the back of the courtroom, and got my first taste of what good lawyering looks like: regular people just standing up and saying what the law is and how it works for their clients.

After that, we went to lunch. He let me ask questions. I went home that day and accepted an offer to attend the University of Tennessee College of Law. Two months later, I had moved my family to Knoxville, and here we are.

There are still mysteries in this story. To this day, I still don’t know how the judge knew to send me an invitation. Someone gave him the idea; I just don’t know who. I don’t know why a busy circuit judge would take the time to send me a handwritten invitation and then not be terribly bothered when I said, “yes.” I do not know the answers to these questions, but I am grateful.

Somewhere over the past nine years, three houses, and two moves, I have lost that handwritten invitation, and with it, the name of the judge.

But, he is one of those thankworthy lawyers who took the time to nudge me in the direction in which I am now going.

That is part of my story. Now, it is your turn. What lawyer do you consider “thankworthy?” What lawyer had impacted you and your practice? Send me an e-mail or give me a call so that the rest of us can get to know them too.

In this respect, the [legal] profession is far superior to the ministry. It is seldom you hear among the upper class, the nobility of the law, one lawyer speak evil of another. If some brother lawyer has a weakness or eccentricity, you will often hear humor made of it, good natured comment, and healthgiving laughter over it; but he who leads the fun does so with full realization that, as soon as his back is turned, he will himself be the next to point a moral or adorn a tale. By reason of this freedom and range of the law, this liberal-mindedness of its disciples, the severe mental activity necessary in its practice, and the variety of learning it draws along with it, lawyers are best qualified to guard, preserve, and perpetuate all that is best in our institutions and laws.3

1 Abraham Lincoln, Proclamation Oct. 3, 1863, http://www.abrahamlincolnonline.org/ lincoln/speeches/thanks.htm.

See Ralph Michael Stein, The Path of Legal Education from Edward I to Langdell: A History of Insular Reaction, 57 CHI. -KENT L. REV. 439-40 (1981); see also Lewis R. Hagood, A Brief History of the Tennessee Board of Law Examiners & the Standards for Bar Admissions in Tennessee, 71 TENN. L. Rev. 571, 575-76 (2004).

G.N. Tillman, Co-operation Among Lawyers, in PROCEEDINGS OF THE TWELFTH ANNUAL MEETING OF THE TENN. BAR ASSOC., pp. 133-136 (Marshall & Bruce Co. 1894).

T

It is a rare lawyer who can truly say that she or he made it on their own without the influence of any other lawyer. I certainly can’t. So, this year’s column is dedicated to telling the stories of the lawyers who you, the members of the KBA, have identified as “thankworthy.” Who got you started in your practice? Who stayed late to help you get a brief filed? Who nominated you for something when you didn’t think you January 2017

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LESSONS FROM KNOXVILLE COURT REPORTERS

Court Reporters are an indispensable part of the legal profession. They are also often the most overlooked part of the legal profession.

What many lawyers don’t realize is that like the legal profession, the population of court reporters is aging. According to the National Association of Court Reporters, there are only 32,000 court reporters working in the United States and 70 percent of those are 46 years of age or older. The association estimates that by 2018 there will be a shortage of 5,000 court reporters. Without skilled competent court reporters, lawyers will not be able to preserve the record in their cases or represent their clients effectively. We are losing the skill and expertise of these professionals.

We sat down with four court reporters in our area and asked them some questions about their profession and what they have observed during their practice. Their advice and experience inform our profession. The court reporters who contributed to this article are Ken Gibson, Jolene Owens, Debbie West and Peggy Giles.

What advice would you give new lawyers?

KG: Make sure you know what your charges for court reporting services will be before you take a deposition. Some nationwide reporting services charge you for things you don’t order or overcharge for one reason or another. You might say, “Well, I’m not paying that.” However, you won’t get your transcript until you pay for it.

JO: Remember that it is garbage in and garbage out. It is your record. The record is not improved by acting like Perry Mason. Be prepared. Handle and control your witnesses.

Slow down.

PG: I have so many things to say, I don’t know where to start. It is really important to talk clearly and slowly. Lawyers are getting the gist of what the witness is saying. Court

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reporters have to take down every word. A lot of times court reporters are seen as a piece of furniture.

These days lawyers use a long introduction in their depositions. When they admonish the witness to say “yes” or “no” instead of nodding their heads, they add that this is for the court reporter’s benefit. This is not for the court reporter’s benefit. It is for the record. It is about making the record.

I heard one good lawyer explain a deposition this way: “pretend it is a ping pong match.”

Wait until the ball comes your way. Don’t let witnesses talk over themselves. At times in court and in depositions, I have to interject and ask the lawyers not to talk over each other.

If a witness can’t spell a name, jump in and help.

Finally, if lawyers would hand me a list of cases that they are going to quote in oral argument, I would really appreciate the assistance.

DW: It is all about making a record. New lawyers need to know how to mark exhibits and not take an exhibit and wave it in the court reporter’s face while the court reporter is writing the record. The court reporter needs to stop and mark the exhibit. The recorder can’t type the testimony and mark the exhibit.

Lawyers should also know the medical words before they get to the deposition. If the reporter says “what did you say?” Listen to the court reporter. There is a reason she is asking that question.

Always be aware of who is going to read the transcript and what are they going to say about the transcript.

What is the most effective thing that you have seen a lawyer do in the courtroom.

KG: There are so many great lawyers in Knoxville, and I have seen so much, it’s hard to name one thing that was the most

DICTA

effective. One that comes to mind is Jim London’s closing argument in a malpractice case. It was very good. He connected with the jury and his side prevailed. I overheard opposing counsel complimenting him as well. That was just good lawyering. If you are relying on a video to connect with the jury, syncing the audio with transcript text is more effective than just audio. People are used to seeing closed captioning on TV. The jury can follow along and possibly catch a word they didn’t understand when they heard it. The jury can then have an interactive experience to keep them engaged. Now, that assumes, of course, that the jurors can read, so you might want to include that question in your jury voir dire if you have spent a lot of money on video syncing.

JO: Come in and present your case in a professional, logical way. Be quick and don’t drag it out. Move on.

PG: Identify by the lawyer’s spoken word what the exhibit is before you mark it. “Mark this as exhibit 1” is not a good description.

Attorneys who are building that record do a better job. Rather say this is the history and physical from May 2016.

DW: The most effective thing I have seen a lawyer do is introduce everyone at the table and introduce the court reporter. The jury is curious about what the court reporter does.

It makes the jury feel part of the party. The lawyer included everybody and the jury was receptive to everybody.

What is the least effective?

KG: In the late 1980s, we participated in a nine-month trial in the matter of FDIC v Ernst & Whinney (an accounting firm).

The case was one of the remnants of the Butcher bank litigation. The challenge for the attorneys was making accounting sexy enough that the jury would pay attention for January 2017

COVER STORY By:

nine months. Many of the witnesses were presented by videotape with the lights turned out. I can’t remember seeing a juror fall asleep but I can’t imagine that the jury was following any of it. In fact, I think they looked forward to the lights being turned out in the hope they could go unconscious for even a few seconds without getting caught. One of the out-of-state big city lawyers fell asleep during a morning matinee and was removed from the trial by Federal Judge Leon Jordan. So I would say expecting the jury to sit day after day watching boring videos while you sleep is ineffective. You will get kicked out of court one way or the other.

JO: I have seen jurors mimic lawyers.

Lawyers should realize that jurors are not stupid and they watch everything.

PG: The least effective thing I have seen a lawyer do is talk over the other lawyer and even sometimes the Judge. That lawyer loses sight of the fact that they are supposed to be building a record.

DW: Lawyers are least effective when they badger the witness. It draws an objection and make the lawyer look ineffective. Keeping exhibits in order is really important.

What is the funniest thing?

KG: The City-County Building and Butcher bank cases were all wonderful cases to work on. I particularly enjoyed travelling to take depositions all over the country JO: The deputy marshals sit behind the defendants. There was one deputy marshal who liked to make faces at the court reporter.

When the court reporter smiled at the marshal’s antics, it looked like she was smiling at the defendant.

PG: I once remember a lawyer throwing a telephone book at me. It was an accident.

He meant to throw it in front of the witness. I jumped out of my seat.

DW: When we were doing the deposition of a psychologist, he asked everyone to sit quietly and mediate. I had one eye open and the lawyer had another eye open. What are we going to do? An older lawyer may not have participated. What would you have done?

What is the most memorable case for which you were the court reporter KG: The FDIC v. Ernst & Whinney. It January 2017

was a nine month trial and the last of all of the Butcher cases. . In one of those cases Robert Campbell was a local lawyer in the case. The FDIC was represented by Sandy Sharp and others. One of the jurors came to court with bright orange hair. I remember her to this day.

We took a month break and some of the jurors went on vacation together.

JO: a. The first lawsuit against the tobacco companies. Three court reporters were used. They would prepare the transcripts and fed ex them out every night all over the country to lawyers involved in the other lawsuits. (Dismissed at close of plaintiff ’s proof.) b. All of the preliminary Butcher motions. c. Steppenwolf was a defendant. Their bus with Born to Be Wild on the front was involved in a wreck on I-75. The band came to the trial. d. Kernell case where there was hacking into Sarah Palin’s email account. e. Florida Boys drug conspiracy.

Heidi A. Barcus London & Amburn

PG: A baby that had a stretch injury in her neck who was born on Christmas Day. She was paralyzed from the neck down. A large plaintiff ’s verdict was returned. Jim Justice tried the case for the family.

The frozen embryo case in Blount County. When the French geneticist testified, I was grateful for my college French, and that Margaret Klein was fluent in French.

DW: A criminal trial in Virginia. It was a child abuse case. The older children were prosecuting their father. The jury was in the jury room deliberating and the defendant took an overdose. The jury thought they had been locked up and left them. No one opened the door. The jury didn’t know what to do. The courtroom deputies didn’t know what to do.

We were worried the events in the courtroom would impact the jury.

When asked what they would like to see lawyers do more, 50 court reporters said: 1 2.

3.

4.

5.

Slow down when asking questions.

Work as a team Take regular breaks Treat the reporter as a professional Remember that it is your record that is being generated by the reporter.

Garbage in, garbage out.

6. Don’t expect the reporter to work through lunch while the attorneys call out for sandwiches and eats while on the record. That’s just rude.

7. Don’t mouth objections or raise a finger. We’re not at an auction.

8. Enunciate your contractions.

9. Reporters find it very difficult to take down cross-talk. Do you really want a transcript with a bunch of dashes?

10. If a reporter asks for the witness to speak up, please don’t say things to the witness like “That’s okay, you’re doing a great job.” We know you’re trying to make the witness feel more comfortable, but if the reporter can’t hear or understand the witness, then nobody is doing a great job.

11. When reading from a document, read slower.

12. If the job is a technical case, try and provide reporter with spellings.

13. If you think you want an expedite, let the office know when you schedule the deposition.

14. Bring business cards.

15. When having exhibits marked, give the reporter time to mark them before asking your next question.

Courtesy of Debbie West, court reporter

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

“The bully pulpit”

The history of the word “bully” is rather odd. We think of the mean kid at the end of the block who forced us to surrender our lunch money, or else. That meaning is apparent in the late 1600s in terms like bully-huff (a boaster, ruffian), bully-roister (a swaggering reveler) and bully-ruffian. Oddly, in the mid-1500s, “bully” was a term of endearment offered to men and women alike, the equivalent of “sweetheart” or “darling.” It was often used in this way by Shakespeare

It is interesting that Theodore Roosevelt used it to describe the presidency, calling it the “bully pulpit.” Well, Roosevelt was of Dutch descent and was the former Governor of New York (formerly “New Amsterdam”). Many of the areas of New York have Dutch names, such as Harlem and Flushing. Well, the Dutch word boel, meaning lover or brother. Roosevelt used “bully pulpit” to describe the presidency’s power and prestige. I would venture to guess that he picked up that sense of the word from his older family members closer to his Dutch roots.

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DICTA

January 2017

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

ALMIGHTY BY DAN ZAK

In 2012, Michael Walli, Megan Rice, and Greg Boertje-Obed broke into the nuclear weapons site Y-12 National Security Complex in Oak Ridge, Tennessee. Almighty tracks the activists’ childhoods, inspirations, and literal steps as they successfully breached the walls of the “Fort Knox” of the nuclear industry.

Author Dan Zak is a reporter for the Washington Post. In his professional blog, Zak describes Almighty, his first book, as being “about nuclear weapons, the activists who resist them, and the bureaucracy that maintains them.” In Almighty, Zak literally walks the reader through the steps taken by the three activists as they accomplish their break-in.

To avoid this book being just a few pages in length, the story of the break-in is interrupted by lengthy descriptions of the activists’ lives and inspirations. The remainder of the book details the federal criminal trial and recent activities of the activists, including those of the group Transform Now Plowshares (a nod to Isaiah 2:3-4). The full title of the book is Almighty: Courage, Resistance, and Existential Peril in the Nuclear Age, which hints at the book’s incisive look at the nuclear industry through the lens of faith.

Sister Megan, Michael, and Greg (as Zak endearingly refers to them) made short work of their security breach at Y-12 in the middle of a 2012 summer night. It isn’t much of a surprise or spoiler to tell you that all three were caught and arrested for their actions (especially since I’ve already told you they had a trial). Although deadly force was warranted in the breach, they were physically unharmed in the ordeal. Given current events, one wonders whether we would have the same outcome in 2017.

Although the book is by no means intended for legal readers, some details in Almighty will make the legal reader wince. For example, Zak interchangeably refers to the prosecuting attorneys as being from a district attorney’s office, rather than the U.S. Attorney’s office. From a broader angle, the activists themselves may not evoke much legal sympathy because they used morality as a central argument or defense in their hearings and trials. Understandably, the federal judge presiding over the case congratulated the activists on their “good works,” albeit having just sentenced them following the guilty verdicts.

January 2017

Even still, the value of Almighty lies in its depth of coverage. The book is clearly non-fiction, but it features amazing and extraordinary detail, including quotations from the conversations of the activists (all such quotes, Zak notes at the end of the book, were either overheard by him personally or confirmed by multiple witnesses) as they ascend the ridge and breach the security fences at Y-12. A detailed history of these events is important to record, especially when those events affect shifts in national security. What’s more, the activists’ connections to the nuclear buildup are fascinating. For example, Sister Megan grew up in Manhattan next door to Professor Selig Hecht, one of the physicists and mathematicians who, at an early stage, helped develop an understanding of atomic energy. She recalls his secretive work as an inspiration to her life as an activist.

Zak categorizes this book as “part historical adventure, part courtroom drama, [and] part moral thriller.” Although I certainly recommend the book, I would describe it as merely historical, courtroom, and moral, rather than an adventure, a drama, and a thriller. Don’t get me wrong: Zak is clearly a talented writer. Far more talented than me.

But the book covers a very niche-within-a-niche subject. Most of its description concerns the lives of the three activists, and it is clearly told from a friend’s perspective. Much of the book reads more like a Sunday newspaper feature, and there is a great audience for that. As a reader unfamiliar with these three lives, I frankly found the historical descriptions of the development of the Manhattan Project, Y-12, and Oak Ridge in general to be far more enticing. The connections with Tennessee kept me reading.

For East Tennesseans in particular, the book is an addicting read because of its descriptions of the landscape, city, and people of Oak Ridge and surrounding areas. For example, the activists were jailed in Blount County. They were tried in Knoxville. Our own Magistrate Judge Clifford Shirley presided over early hearings. There is a lot to love about the book for Tennessee and KBA readers. I highly recommend Almighty to any well-read lawyer.

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barrister bullets 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.

DIVERSITY COMMITTEE The Barristers Diversity Committee will be organizing a team for the YWCA’s Race against Racism to be held January 14, 2017. The Committee will cover the registration fee for anyone who wants to join the team, just let us know BEFORE the end of the year! Contact Zack Gardner or Amanda Morse at zgardner@kmfpc.com or amanda. morse@knoxcounty.org for more information!

VOLUNTEER BREAKFAST The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. The Barristers Volunteer Breakfast Committee always need volunteers to serve food or sponsor. The cost is $150 for sponsoring, and we need 4-5 volunteers. If you are unable to fund the breakfast, the Barristers will subsidize the cost of the breakfast. We meet at 6:15 a.m. and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30 a.m. It’s a great way to serve the community! Please contact Lacey Dillon at ldillon@knoxbar.org for more information.

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

VETERANS LEGAL CLINIC The Veterans’ Legal Advice Clinic is a joint project of the Knoxville Barristers, the Young Lawyers Division of the Knoxville Bar Association (KBA), KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, Knox County Public Defender’s Community Law Office, the University of Tennessee College of Law, and the local VA office.

This is a general advice and referral clinic which will require attorney volunteers for its operation, and it is anticipated to serve between 20 and 30 veterans in the community each month with a wide variety of legal issues, including family law, landlord/tenant, bankruptcy, criminal defense, consumer protection, contract disputes, child support, and personal injury, among other issues. We need volunteers for the next two clinics on January 11 and February 8 from 12:00 p.m. to 2:00 p.m. at the Knox County Public Defender’s Community Law Office at 1101 Liberty Street, Knoxville TN 37912. Register by clicking on January 11 or February 8 in the Event Calendar at www.knoxbar.org.

BARRISTERS ANNUAL ELECTIONS AND HOLIDAY PARTY More than sixty Barristers attended the Elections and Holiday Party held on December 7, 2016. Samantha Parris, Law Office of Samantha Parris, will serve as the President of the Knoxville Barristers in 2017.

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DICTA

January 2017

SCHOOLED IN ETHICS By:

Paula Schaefer U.T. College of Law

SELF-REPORTING A LAWYER’S PROFESSIONAL MISCONDUCT

Leslie, a Knoxville attorney, and her client were recently sanctioned for spoliation of evidence in a case pending in U.S. District Court in the Eastern District of Tennessee. The judge determined that Leslie had assisted her client in intentionally destroying relevant documents after the litigation had been filed.

Leslie’s conduct also violates Tennessee RPC 3.4(a) – a rule that prohibits an attorney from unlawfully destroying documents with potential evidentiary value or counseling or assisting another person in destroying such information.1 Based on some of the judge’s comments at the hearing, Leslie is concerned that the judge may refer her for discipline.

Leslie also wonders if she has a duty to report her own misconduct to disciplinary authorities. She comes to you for advice about whether she is required to self-report, or if not, if there may be some advantage of selfreporting her misconduct.

Tennessee RPC 8.3 does not provide that an attorney must selfreport misconduct. The rule states that a lawyer who knows that “another lawyer” violated a professional conduct rule that raises a substantial question of the lawyer’s honesty, trustworthiness, or fitness as a lawyer shall report the misconduct to disciplinary authorities.

The predecessor reporting rule in the ABA’s 1970 Model Code of Professional Conduct was written more broadly and was understood to require self-reporting. See Model Code of Professional Responsibility DR 1-103A. With the adoption of the Model Rules of Professional Responsibility 1983, the reporting rule was changed to eliminate the self-reporting obligation. States like Tennessee adopted this limitation, while other states opted to require self-reporting. See, e.g., Ohio RPC 8.3 (commentary following the rule explains that the Ohio rule, unlike Model Rule 8.3, requires self-reporting).

Nonetheless, there are circumstances when a Tennessee attorney has a duty to self report information to disciplinary authorities.

Attorneys found guilty of a serious crime (or who enter a guilty plea) are obligated to inform Disciplinary Counsel of the Board of Professional Responsibility within ten days. Tenn. Sup. Ct. R. 9, § 22.1(b). A Tennessee attorney is also required to inform Disciplinary Counsel when the attorney has been subjected to professional discipline in another jurisdiction (such as a federal court where the attorney is admitted or another state where the attorney is licensed). Tenn. Sup. Ct. R. 9, § 25.1. Likewise, federal courts where the attorney is admitted may also require the attorney to inform the court of discipline proceedings initiated against the attorney elsewhere. See, e.g., E.D. Tenn. L.R. 83.5(c) (requiring attorneys to self-report within seven days when discipline has been initiated against the attorney in another jurisdiction).

Even when there is no obligation to self-report misconduct to disciplinary authorities, an attorney may nonetheless conclude there is reason to do so. Attorneys should seek the advice of another lawyer on the issue of whether to self-report. See Nathan M. Crystal, Ethics Watch: The Duty to Report Professional Misconduct, S.C. LAWYER, July 2016, at 14 (encouraging attorneys to seek independent advice prior to selfreporting because self-reported misconduct “does not necessarily result in more favorable disciplinary treatment”). The Tennessee Supreme Court has suggested that an attorney’s self-report of professional misconduct may be viewed as a mitigating factor when imposing discipline. See Lockett v. Bd. of Prof ’l Responsibility, 380 S.W.3d 19, 28, n. 6 (Tenn.

2012) (listing “full and free disclosure to disciplinary board” as a mitigating factor).

1 Even though Leslie’s case is pending in U.S. District Court in the Eastern District of Tennessee, Tennessee Rules of Professional Conduct are the governing authority because they have been adopted by the court. E.D. Tenn. L.R. 83.6.

From the Archives (printed in DICTA March 2011)

My First Experience as a Court Reporter F. H. Broome was KBA member Robert W. Godwin’s maternal grandfather. Mr. Broome was born in 1876 in Knoxville and he wrote the essay below in 1899.

About three years ago, a certain damage suit was brought in the United States Circuit Court at Knoxville against the Southern Railway Company. As the case involved a very “nice” question of fact and would probably, therefore, be appealed, I was employed to “take” the testimony.

When on the morning of the trial the Marshall proclaimed Court in session, I was seated, pen in hand, at a long table opposite the counsel for the contending parties. Directly behind me sat the Judge, to the left were the twelve jurors; and disinterested lawyers occupied the space to my right. Outside the bar, a crowd of spectators looked lazily at the scene within. All eyes, I thought, were turned on me; and naturally, as this was my first experience at court reporting, I grew uneasy under the supposed gaze.

A little while later, I was almost oblivious to everything except my notebook and the “hieroglyphical scrawl” with which I was mechanically filling its pages; for after the Plaintiff s declaration and the answer of the Defendant had been read, the furious examination and cross-examination of witnesses began. Among those who testified were, a preacher, a lawyer, a pedagogue, a railroad conductor, four colored brakemen, and eight or ten foreigners and native ignoramuses who did not know the difference between the English and the American language. To “get” all that this conglomeration of humanity said was a Herculean task; but by blowing and sweating, and slinging ink for five hours, I accomplished the feat. When Court adjourned, the Judge smilingly said to me, “I’d rather have my job than yours.”

F. H. Broome 1899 January 2017

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21

ASK MCLAWYER

Question Presented:

probably want to follow going forward.

Dear Mr. McLawyer,

As you probably already know, Tenn. Code Ann. § 35-5-101 provides that you must mail the notice to the debtor and any co-debtor.

Tenn. Code Ann. § 35-5-104 requires the published notice to identify all “parties interested,” which includes other secured parties. However, Tenn. Code Ann. § 35-5-104 does not require that the notice be mailed directly to those other interested parties.

HOWEVER, it is my practice (and I believe a good practice) to also mail a copy of the notice to all interested parties as well even though this step is not technically required by the statutes. First, this additional notice is a “belt and suspenders” step to attempt to ensure that all necessary people and entities are given notice of the foreclosure. Second, the hope of any foreclosure is to encourage bidders to obtain the best possible sale price for your client. Sending notice to people or entities that may want to bid on the property could only further this goal. Third, many title attorneys require evidence of notice to interested parties prior to issuing a title policy.

In sum, it does not sound like you have missed anything, but you may want to follow the advice from your old (wise) colleague. I hope this helps assuage your concerns.

I am relatively new to practicing law in this area, and have done several non-judicial deed of trust foreclosures lately. I THOUGHT I have been properly giving notice to those who should receive it, but I was recently informed that I should also be sending notice to additional parties. I am now worried that I may have missed something, and I am hoping that you can point me in the right direction.

More specifically, I have been including in the advertisement or notice a list of all interested parties. However, I have been directly sending notice only to those people or entities that are actually debtors or co-debtors. A grizzled veteran attorney recently told me that I should also be mailing a notice to all of the interested parties, but I do not see that requirement anywhere. What am I missing?

Answer:

Dear worried foreclosure lawyer,

It does not sound like you are missing anything. Rather, the “grizzled veteran attorney” has just provided some sound advice that you

“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.

Photo Ops

2016 Governors’ Award Recipients Luncheon

Back row: Robert E. Pryor, William D. Vines III, W. Thomas Dillard, Mark Stephens, Bernard E. Bernstein, Randall E. Nichols, Thomas M. Hale Front row: George W. Morton Jr., Sarah Y. Sheppeard

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DICTA

January 2017

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

ANNUAL MEETING RUNNING DIARY

Another year, another annual meeting of the KBA, another running diary from yours truly. Let’s get right to it: 8:33 a.m. President Wayne Kramer calls the annual meeting to order.

He seems a bit anxious that people are still milling about and we are not starting precisely at 8:30 a.m. Either Wayne is a strict “type A” personality or he just wants to get this show on the road so he can more quickly get to his new office as past president. I assume the latter.

8:35 a.m. Dispense with the reading of the minutes and approval of the same. Wayne is working with ruthless efficiency here. I didn’t even hear anybody making an actual motion, but our leader won’t be deterred by the niceties of Robert’s Rules of Order. He has bigger fish to fry.

8:45 a.m. Keith Burroughs delivers the standard treasurer’s report (i.e. we have money). Then, with little fanfare, the entire bar approves a dues increase for ourselves. Not a single objection. Either Keith did an excellent job of persuading a roomful of lawyers that a dues increase was warranted or we were all just willing to pay an extra $10.00 per year so he would stop talking about finances. Either way, “bravo” on the effective advocacy Mr. Burroughs.

8:52 a.m. We vote on new board of governors members. The normal process is to fill out slips of paper and hand them down the aisle where they will be collected by a staff member and taken for tabulation. I was sitting on the end of the aisle and somehow Magistrate Shirley came over to collect my ballots. I think even he was surprised to be pressed into duty.

9:07 a.m. Chris McCarty drones on about DICTA, making it the third year in a row he has made direct reference to me in his remarks. I’m getting a weird stalking vibe. My law school roommate, Nic Arning, retires from the DICTA editorial board, which is a significant loss (he couldn’t explain to me what the Rule Against Perpetuities meant when we were in school, but he pushes a noun against a verb as well as anyone I know) and Nick McCall is rightfully honored with the DICTA Award for his column The Last Word.

9:15 a.m. Against improbable odds, Keith Stewart wins the Ethics Bowl Championship, along with his teammates Leslie Beale and Ron Mills.

This was billed as an “All Star” competition, pitting past winners against one another. Keith is, to my knowledge, the only back-to-back winner of the Ethics Bowl. Forget the Trump election, forget Brexit, no one saw this coming. As a side note, Keith confidently strolled up onto the stage to accept the trophy even before his name was called. Say what you want to about Keith Stewart, and a lot has been said, but the guy has panache and apparently he knows the Rules of Professional Conduct.

for her extraordinary service. I don’t have enough space to write all that should be said about Marsha. Perhaps I will have to devote a separate article to her. Needless to say, she is worthy of the recognition, and we all appreciate her many years of outstanding service.

9:25 a.m. Rachel Hurt makes her last appearance as the Barrister’s President and passes the reigns over to Samantha Parris. I am always amazed at the breadth and depth of programs the Barristers put on each year, but with leadership and energy from people like Rachel, it really should be no surprise. Her remarks were good, but the highlight came when Samantha reached for the outgoing president’s plaque and Rachel, in her uniquely energetic yet awkward way, managed to half lunge for the plaque and then exit stage left. I like to think Rachel was eager to get off the stage to give Samantha the spotlight, but it may be that Rachel just really wanted that plaque. Hard to tell.

9:32 a.m. Kathryn Ellis hobbles up to deliver the Pro Bono Project update. Terry Woods did an outstanding job over the years making this report and apparently Kathryn thought the only way to up her game and play on our sympathy for the needy was to physically injure herself.

What kind of encore are we in store for? Prayers for a speedy recovery, Kathryn.

9:40 a.m. Ruth Ellis delivers the report from the Memorials Committee.

We lost too many good lawyers this year.

9:42 a.m. Wayne announces the results of the election. Congratulations to Stephen Johnson, Kathryn Ellis and Mary Miller. I know you will lead us well. Lost in the shuffle of the elections is the fact that Hanson Tipton was elected Secretary of the Association and has now entered the chain of leadership for our Association. Let that sink in for a moment.

For a Webb graduate (I remain a Catholic High loyalist at heart), Hanson is a pretty good guy.

9:50 a.m. Wayne gives concluding remarks. He has been an outstanding president and a good man. Honestly, I’m not sure I recall anyone more eloquent than Wayne in speaking on behalf of the Association. Don’t get me wrong, he is still a curmudgeon, but he wears that as a badge of honor. Excellent job this year, Wayne. I was proud to have you as our president.

9:55 a.m. Amanda Busby installed as new KBA president. Her remarks are pithy (I think she wants to make sure we all get out of here and that court opens on time) and encouraging. We should all feel optimistic both about where we have been and where we are going as a bar. I wish Amanda the best of luck, although I am sure she does not need it.

9:58 a.m. Meeting adjourned.

9:20 a.m. The dulcet tones of Bill Vines fill the room as he announces Mark Stephens the recipient of the 2016 Governor’s Award. Our highest honor to a truly worthy recipient. There really isn’t much I can say here except that this was a touching moment and you can add Mark to the long list of Knoxville lawyers who make me proud that I chose the profession I did. As an added bonus, Marsha is recognized by the bar January 2017

Another good year, another good meeting. With all due respect to the other metro bars in this state, and my friends who practice elsewhere, Knoxville is, by far, the best community of lawyers in Tennessee. Thank you to our leaders and mentors who have made it so.

DICTA

23

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

MELE KALIKIMAKA AND MELE VACATION: LIFE HACKS TO MAKE TRAVEL TO PARADISE EVEN MORE HEAVENLY

My mind is still in Hawaii… even if my body (and laundry) are in East Tennessee. Last night, our family returned to Knoxville from what I can only describe as the “trip of a lifetime.” We have been fortunate enough to visit some incredible places and meet some fabulous people, but nothing quite compares to Oahu.

Last year, Hugh and I decided that we would travel to Oahu for the 75th anniversary remembrance of the attack on Pearl Harbor. After booking our airline reservation and a room at Aulani (Disney’s resort in Ko’ Olina), we decided that, other than the Pearl Harbor remembrance, we would travel without an agenda. While that is a pretty daunting task for a type-A planner like me, it made the trip much more enjoyable.

It is still hard to wrap my mind around such a grand adventure, but I wanted to share a few things I learned on this trip.

1. Luggage scales are your friend. Several years ago, I invested in a hand-held luggage scale (think scale attached to the top of a coat hanger) at AAA. Since then, I have always weighed my luggage before leaving home to make sure that I did not get an unwelcome surprise (overweight luggage fee) at the airport. For some reason, I decided to take the luggage scale with me to Hawaii. It is about palm-sized and fit in my purse. This was a very smart move.

2. If you are on a very long flight, be sure that there are some “new release” movies that you have not seen. I enjoy watching movies while I do paperwork and work around the house. Prior to our trip, I was able to catch up on all of my work from the office and home, plus decorate the house for Christmas. When we got on the plane for the 11+ hour flight from Atlanta to Honolulu, the new movie selection included most of the movies that I had just paid to rent. Very bad move on my part.

3. Although you can purchase tickets on your own through the Park Service, use a tour guide when visiting Pearl Harbor. Hugh booked our initial visit to Pearl Harbor through a tour operator, who picked us up at the hotel and drove us to the Visitor Center. Along the way, he gave us interesting tidbits about the area surrounding Pearl Harbor, Hickam and Schoffield. He also gave us the history and took us to the Cemetery of the Pacific (a/k/a Punchbowl…because it is in the crater of a volcano).

He had our tickets to the Arizona Memorial (which are for a specific viewing time) and to the USS Missouri. While we ditched the tour at the end to stay longer at Pearl Harbor, the time with the tour operator was money well-spent.

4. If your hotel offers cabanas for rent, do it. Aulani is notorious for being crowded at the pool and on the beach and even has signs posted that you must remain with your belongings, lest the pool police will remove them. Friends who had recently returned recommended renting a cabana. While Aulani was not crowded during our visit, I convinced Hugh to rent a cabana anyway. We had covered chairs (great for a redhead like Hugh), a cabinet to lock our belongings, and food service. It made a really great day at the beach even more enjoyable because we didn’t have to worry about sunburn or leaving our belongings unattended. It was a little bit of luxury that has helped face the mountain of laundry that now greets me.

5. Waikiki = Miami. We spent two days of our vacation in Waikiki for the Pearl Harbor remembrance events. My preconceived notion of Waikiki was that it would be much like Myrtle Beach, with lots of tourists and souvenir shops. I could not have been more wrong. Although crowded, Waikiki’s streets were lined with high-end shops like Gucci and Prada, and locals are glad to meet Tennesseans because Elvis is still revered there.

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6. If you get the chance to go to an event that celebrates our nation’s veterans, do it. We were fortunate to be able to attend a Gala that was hosted by Hawaii’s governor to honor the Pearl Harbor survivors. The survivors received a “hero’s welcome” and were treated like rock stars.

Garth Brooks and Trisha Yearwood were in attendance, and they were lining up like the rest of us to be photographed with heroes from our nation’s Greatest Generation. My “proud mom” moment came when Trace declined being photographed with Garth Brooks (one of his favorite country artists) in order to speak with more veterans.

7. The remembrance ceremony on December 7 is something I will never forget. We left our hotel at 3:00 a.m. to get in line for the parking lot, which opened at 4:00 a.m. Along the way, we stopped the car twice for Trace to throw up (too much rich food and too little sleep). We got in line for the bus, which took the first 500 people there to see the ceremony live at Kilo Pier. Trace threw up again. I offered to take him back to the hotel so that Hugh could go to the ceremony. Hugh told Trace to “man up” and push through. I am so glad he did. The remembrance, which began at 7:30 and had a fly-over at the exact moment that the first bombs fell in the Harbor, was spectacular. The keynote was delivered by Admiral Harry Harris, Commander of the Pacific, who grew up in Morristown, TN. It was, without a doubt, the most eloquent and inspiring speech I have ever heard. We are in good hands with Admiral Harris in the Pacific. To quote the Hawaiians, I had “chicken skin” from the start to the end.

8. Sometimes, the best discoveries are not planned.

During our trip, we drove to Oahu’s North Shore to see Waimea Bay. When we got there, we learned that the Pipe Master’s Triple Crown of Professional Surfing had just started. We were able to watch the pros practice with 8-10 ft waves, and we even met Patrick Parker, the artist who did the artwork for the promotional materials. We also happened upon the Waimea Valley Botanical Gardens, where we hiked to see the waterfall (and where large portions of the Hunger Games movies were filmed).

9. The locals recommend the best food. While in Haleiwa on the North Shore, one of the locals we met suggested that we try Opal’s Thai for dinner. He said that the owner would recognize us as “non-locals” and would suggest dinner options for us. The restaurant seated about 15 people and didn’t even have a restroom. It was, hands down, the best meal we had in Hawaii. The owner sent out five dishes, and each one was better than the last. And the total cost, including tip, was $80.

10. Luggage scales are your friend. When it came time to leave, we definitely had more than we had when the trip began. In the end, I was able to distribute clothing and souvenirs so that each of our 3 bags weighed exactly 49 lbs (including one that contained nothing but our dirty laundry). The rest of our purchases should be arriving back in Knoxville via UPS later this week.

We are tired and a little more than jet-lagged, and a mountain of laundry awaits. But our trip to Hawaii was indeed the “trip of a lifetime.”

I was worried that we would run out of things to do; but, in the end, we didn’t do half the things we wanted to do. Along the way, I learned a few things that will make our next trip (hint, hint, Hugh) even better. Until then, Mele Kalikimaka!

DICTA

January 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

GOOGLE HOME DIGITAL ASSISTANT

Over a year ago Amazon introduced the Amazon Echo. It was a surprise hit. We quickly bought it and drug it around with us to demonstrate at all of our Bill & Phil Show presentations. The feedback we got from all quarters was that this little digital assistant/music player/ babysitter/etc. was incredibly popular both at home and in the office.

Google (and others) must have heard the same rave reviews that we did because it quickly went to work on a competitor. Then in the fall of 2016 as Google was unveiling its first branded smartphone, the Pixel, Google also introduced its own digital assistant device, Google Home. Of course, we snatched one up (actually two) immediately.

So what distinguishes Google Home from Amazon Echo? For starters, it’s less expensive ($129 compared to $179). It is a little more compact and comes in different color combinations which might make it blend in more aesthetically in a home setting. But the functionality is basically the same as Echo with some added twists. What Home (and Echo) does is sit on your counter at home or on your desk in the office, connect to your Wi-Fi network, and wait for you to tell it what to do.

Home will “wake up” when you say “Ok Google.” Then, it will respond to your voice command. While we couldn’t get it to attend a seminar for us or write a brief, it certainly does perform many entertaining tasks – things like playing music from our Spotify account, giving news briefs, answering trivia questions, giving stock quotes, etc. The device itself is a speaker through which it communicates back with you. The speaker is of decent quality; but it’s not going to take the place of high quality Bluetooth or Wi-Fi speakers, like you might find in a Sonos system.

The real evolution of these digital assistant devices is their integration with other internet-connected devices, such as smart home devices. For example, via voice command we can tell Google Home to set our thermostat at a certain level, turn on the lights, dim the lights, turn on a sprinkler, even brew a pot of coffee. And unlike some human assistants, Google Home follows through without a peep of protest.

They should have named this device Nirvana.

The Google connection is what really sets the Home device apart.

Because of Google’s vast database of general knowledge (from their universally popular search engine), we are able to ask, or “google,” just about anything on any subject and Google Home will have an answer.

It’s sort of like having a digital encyclopedia that you can quiz with oral questions.

Another distinguishing characteristic of Home is its connectivity with video and audio devices that have Google’s Chromecast installed.

For example, without touching a keyboard or remote, we can vocally instruct Home to play a YouTube video on a big TV screen that has Chromecast installed on it; and, like magic, it happens. Similarly, we can instruct Home to play a specific song or playlist on our Chromecast-enabled audio speakers in the next room. We love to use this functionality to amaze visitors to the office and persuade them we do indeed have magical powers. But the magic is in the Google Home technology.

Supposedly the artificial intelligence technology behind the Home’s speech recognition and response system, dubbed Google Assistant, is superior to other systems. The only real evidence that we could discern is that in certain circumstances you can ask Home follow-up questions January 2017

and it will answer in context of the original question. For example, we can ask Home “Ok Google, how late is Martin’s BBQ open” and Home will respond with the hours of operation for that day. We then follow up with “Ok Google, where is it located?” Home responds with the correct address for the restaurant without renaming the restaurant.

This contextual awareness is unique to the Google Home system; but, honestly, we’re not sure how much we would use it.

Conversely, Amazon Echo has some tricks that Home cannot perform. For example, as of this writing, when you ask Google Home to add an appointment to your calendar, she responds that she “can’t add appointments to your calendar yet.” So apparently this feature will be added to Home in the future; but we are able to add calendar events just fine using Echo. Also, since Echo has been on the market longer than Home, there are quite a bit more integrations (or “skills” as Amazon calls them) that Echo has over Home. We expect Home will quickly catch up, particularly as sales of the cheaper Home device climb.

Clearly the market for these digital assistants is hot. Other companies are rumored to be coming up with their own versions. Of course, these are just new iterations of technology that most of us have been using for a while in Apple’s Siri, Microsoft’s Cortana, or Android’s Google Now. But Echo and Home have expanded the functionality of these voice recognition systems to be more “conversational” and to provide connection to more objects used in our everyday lives. We believe these virtual digital assistants will continue to evolve beyond primarily entertainment devices and become more integrated with how we work in and out of the office. We don’t care if you call our assistant Alexa, Google, or Helga; we are just thrilled that this assistant will listen to us hours on end and never complain, not yet at least.

In January, we’re off to the 2017 Consumer Electronics Show where we’ll see a lot of new gadgets that we can’t wait to tell you about.

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

It’s that time of year. Again. Time for New Year’s resolutions, starting fresh, and trying (again) to lose those ten pounds you vowed to lose last year. (As well as the additional five that found their way to your waist, hips, what have you, over the past twelve months. Or maybe that’s just me.). In an effort to assist you on your new health journey, let me offer you this bit of sage wisdom and advice. If you’re considering trying out the Krispy Kreme fruit doughnut diet, don’t. Sad newsflash, the fruit isn’t real. Consequently, Krispy Kreme’s “fruit” doughnuts are actually not healthy for you.

But seriously, Jason Saidan recently filed a $5 million suit against Krispy Kreme alleging that it has violated California’s False Advertising Law. Saidan is specifically taking aim at Krispy Kreme’s Glazed Raspberry Filled doughnut, the Glazed Blueberry Cake, and the Maple Iced Glazed doughnut, among others.

Saidon claims that the names of these particular doughnuts mistakenly lead customers to believe that they’re made with real raspberries, blueberries, and maple syrup. Saidon reasons that these doughnuts are labeled as being made with “Premium Ingredients” and are “uniformly priced higher than the Original Glazed Donut.”

Following Saidon’s logic, he believes that customers would not have bought these particular doughnuts if they knew they included artificial ingredients or, at least, would not have paid the higher price.

Even better, Saidon claims that by misleading customers about the presence of these ingredients, Krispy Kreme has robbed the customers of certain health benefits that they may have expected from the presence of, say, raspberries in their glazed, “fruit” filled, fried doughnut. Saidon argues that raspberries “are a rich source of Vitamin C, Vitamin K, Potassium, and dietary fiber,” and they “help fight against cancer, heart disease, and age-related decline.” Similarly, blueberries “have the potential to limit the development and severity of certain cancers and vascular diseases” and may be “one of the richest sources of antioxidane phytonutrients.” Benefits that Krispy Kreme has now taken from its customers by using artificial fruit and flavorings, instead of REAL raspberries and blueberries, in its doughy, deep fried, glazed goodness. Not surprisingly, Krispy Kreme has declined to comment on the idiocy of Saidon’s claims.

Despite the preposterous premise, I’m not going to lie, I may just take Saidon’s logic to heart. Just add real fruit and, voila, you now have a food offering immense health benefits. Waffles? Just add some strawberries! Pancakes? Throw some blueberries in the mix! Chocolate cake? Some raspberries will health that right up! This, my friends, totally changes the New Years’ game. You’re welcome.

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DICTA

January 2017

E V O LV I N G L E G A L S E R V I C E S M A R K E T P L A C E By: Lisa J. Hall Hodges, Doughty & Carson

CURRENT AND FUTURE STATE OF THE LEGAL MARKET

For many of us, the evolution of our legal practice has historically meant the evolution of the lawyer. As our experience and skill-set is built, we are able to tackle larger, more complex matters, and we are better equipped to handle a wider range of matters for a variety of clients. As technology makes its way over to the practice of law, we slowly incorporate it into our work. The legal profession, as a whole, has remained unchanged for centuries. More recently, the profession has experienced changes that have caused lawyers and bar associations to evaluate the future of our profession and how we can evolve to meet the needs of clients and the community.

In the book Glass Half Full: The Decline and Rebirth of the Legal Profession, U. T. College of Law Professor Ben Barton describes the changes to the legal profession as four different “deaths”: death from above, death from below, death from the state, and death from the side.

“Death from above” is attributed to the failure of “Big Law,” as many corporate clients have employed cost-cutting measures that has resulted in “Big Law” losing substantial clients and profits. “Death from below” has resulted from technological and personnel changes that have replaced some of the work traditionally performed by lawyers. “Death from the state” includes governmental policies that decrease lawyers’ work, e.g. tort reform and transitioning certain matters into administrative proceedings.

Finally, “death from the side” refers to the increase in number of lawyers when compared to the legal work available.

Professor Barton writes about the bright side of these changes, in that legal services will decrease in cost, lawyers will have the incentive to employ alternative billing methods, the work that lawyers continue to perform will be complex and interesting, and law school graduates will be better prepared for the new legal market.

In 2015, the Tennessee Bar Association formed a Special Committee on the Evolving Legal Services Market (“ELM”), which includes Knoxville lawyers Doug Blaze and Andy Roskind, along with ten other lawyers from across the state. The ELM committee’s purpose is “to better understand what is really happening in the lives, work, and practice of Tennessee lawyers in the dynamic environment, and to better understand the current legal services market in Tennessee and how it is changing and whether the ways that it is changing should be embraced and/or promoted or should legitimately be attacked, consistent with the appropriate goals and objectives of self-regulation.”

The American Bar Association Commission on the Future of Legal Services recently published a Report on the Future of Legal Services in the United States, which largely focused on delivering legal services to a larger percentage of the population than is currently being served. The American Bar Foundation’s “Documenting the Justice Gap in America” survey suggests that even though we seem to have an excess amount of lawyers, 79% of Americans with a justiciable problem do not seek legal help. The ELM focused on this issue in their first meeting and discussed a video presentation from the ABA’s William Hornsby titled “MultiPathing the Delivery of Legal Services for the 79 Percent.” Hornsby suggests that cost is not the obstacle for these people, but the ELM felt this was understated. To help bridge the connection between lawyers who need work and clients who need representation, innovative solutions are needed to market and deliver legal services. Some solutions already in place include standardized legal forms services like LegalZoom, pay-perJanuary 2017

lead services for attorneys, Q&A and ratings websites including Avvo, and court and government self-help centers. The ELM recognized the need to educate a hopeless public that legal solutions do exist.

The ELM also studied online dispute resolution (“ODR”), which is the use of communication and information technology to help resolve or prevent disputes online. It is technology-accelerated alternative dispute resolution. Modria is one of the world’s leading ODR platforms and is used to settle small e-commerce issues, as well as car insurance disputes in New York and property tax disputes across the country, including Davidson County. The co-founder of Modria also showed the committee the Canadian website MyLawBC, which is a government-run website that uses the Modria platform to resolve separation, divorce and family orders, abuse and family violence, missed mortgage payments and wills and personal planning.

Artificial intelligence has also made its way into the legal world.

ROSS Intelligence has introduced a “digital legal expert,” which allows users to ask questions in natural language and answers with passages of law, growing “smarter” with each use. ROSS is advertised as providing insight, unlike other research tools like LexisNexis or Westlaw, which only provide data.

The ELM will continue their studies and discussions and has evolved itself into a Standing Committee instead of a Special Committee, with goals to educate Tennessee lawyers about the current and future state of the legal market, commissioning a study to gather data about the evolving legal market in Tennessee.

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OF LOCAL LORE & LAWYERS By: Joe Jarret University of Tennessee, Department of Political Science

Claude Galbreath Swafford: Trailblazing Lawyer, Leader, & Educator

For those of us who have argued a case before the Tennessee Supreme Court, we might use adjectives such as “challenging,” “stressful,” or “nerve-wracking.” Now, picture successfully doing so while pregnant with your first child and with your husband overseas in the middle of the Korean War. Such was the stuff of which Claude Galbreath Swafford was made. This trailblazing mother, grand-mother, wife, lawyer and educator was born in Greeneville, Tennessee on December 07, 1925 to the late James Whitfield Galbreath and Pearl Smith Galbreath. She was barely 18 when she was called upon to take over the family business that was failing due to a combination of the ravages of WWII, a dishonest manager, and a dying father.1 Not content to merely save the failing business (which she single-handedly did), she contemporaneously enrolled in Tusculum College. At the age of 20, she caught a ride to Knoxville and enrolled (over her mother Pearl Smith Galbreath’s objections), in law school at the University of Tennessee. Women were a rarity in law schools in the forties. In fact, Claude was one of only two women in her law school class. That class, however, included fellow luminaries such as the future U.S. Senator Howard Baker, United States District Judge Tommy Hull, and a dashing young Naval Aviator, Howard Graham Swafford, the love of her life for almost 70 years.2 In 1948 Howard and Claude married, returning to Howard’s hometown of South Pittsburg where they would practice law and raise a family together. Howard and Claude would have two children, Claudia and Graham, both of whom would follow in their parent’s footsteps, by enjoying successful legal careers in their own right.

Claude was among the first 100 women lawyers in Tennessee, and had a burning passion for the education of the state’s children, so much so, that she spent 20 years as a member of the Marion County School Board, during which time she served as chair for 10 of those years. During her tenure on the school board, she oversaw construction of several new schools going so far as to hand-pick the architects to insure integrity. During those years she also served as President of the Tennessee School Board Association. Needless to say, Claude had a fundamental, core belief that every child, regardless of circumstance, had a right to a quality education. Never taking lightly the doors her UT law degree opened for her, she devoted her life to holding that door open for others.

Active in politics, Claude was appointed by President Ronald Reagan to serve on the Board of the National Legal Services Corporation. Following 2 terms in that capacity, she was appointed by then Secretary of Defense Dick Cheney to serve on the Defense Advisory Committee on Women in the Services (DACOWITS).

DACOWITS was established in 1951 by then Secretary of Defense, George C. Marshall. The Committee is composed of civilian women and men who are appointed by the Secretary of Defense to provide advice and recommendations on matters and policies relating to the recruitment and retention, treatment, employment, integration, and well-being of highly qualified professional women in the Armed Forces. Claude also served as an alternate delegate to two Republican National Conventions and was honored as the 1999 Tennessee Statesman of the Year. The

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latter award is described by GOP leaders as “a chance to recognize our dedicated Republican activists here at home and listen to some of the brightest minds in the conservative movement from across the country.”3

According to family members, Claude was “the high sheriff for her family,” and a woman who “offered opinions often and openly, never censored and totally unedited.” It is said that she instructed her children that she expected to be buried with her active law license in her hand.

A Vol through and through, Claude often reminded her children and grandchildren that the University of Tennessee was the greatest land grant university the world has ever known. Upon her death in 2016, Claude’s family requested, in lieu of flowers, that contributions be made to the Claude Galbreath Swafford and Howard Graham Swafford Scholarship Endowment at the University of Tennessee College of Law. Claude passed from this life with an active license to practice law in her beloved Tennessee, and left behind a legacy of leadership, the ethical practice of law, and love of family and country that will inspire generations to come.4 Claude Galbreath Swafford obituary, www.legacy.com/swafford http://torchbearer.utk.edu/2016/03/claude-galbreath-swafford-1949/ 3 Montell, William. Tales from Tennessee Lawyers. University Press of Kentucky, 2005.

4 Claude Galbreath Swafford obituary, www.legacy.com/swafford 1 2

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January 2017

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.

KNOXVILLE LAWYER NAMED TOP 100 LAW BLOGGER Knoxville family lawyer K.O. Herston has been named a top 100 blogger by the ABA Journal for the second year in a row. Herston, the author of “Herston on Tennessee Family Law,” practices with the Herston Law Group and focuses the blog on legal developments in Tennessee family law. The ABA Journal has been identifying the best blogs for lawyers for the past 10 years through its ABA Blawg 100.

PARALEGAL ASSOCIATION MEETING The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, January 12, 2017, at 12:00 pm. In the U.S. Attorney’s Office, Knoxville, Tennessee. Judge Lisa Lowe Knott and Kimberly D. Weaver with the Tennessee Department of Labor will be presenting a one-hour program on the topic of the New Workers Compensation Reform Act. 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.

OFFICE SPACE AVAILABLE: •

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

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

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

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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.

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

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

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

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

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

Elliott S. Anders Sarah Magdalen Booher Ogle, Elrod & Baril, PLLC Stephen Cobb U.S. District Court Brady C. Cody Lewis, Thomason, King, Krieg & Waldrop, P.C. Meagan Elise Davis London Amburn, P.C. Eric B. Foust Law Offices of Eric Foust Heather Good Ritchie, Dillard, Davies & Johnson, P.C. William D. Hall Molly J. Hardin Jeana K. Horton Lincoln Memorial University - Duncan School of Law Kaitlyn E. Hutcherson Woolf, McClane, Bright, Allen & Carpenter, PLLC Julie Kuykendall Christina C. Lawson Thomas A. McCauley 4th Judicial District Office of the Public Defender Chelsea C. Moore Joshua R. Nunnally Ashley L. Roberts Breeding & Henry, LLC Elliott Schuchardt Schuchardt Law Firm Matthew Sipf Steven N. Stewart Betsy G. Stibler Richard Charles Stooksbury

Carmen L. Tant Zachary R. Walden Eldridge & Blakney, P.C. David A. Waller

Address Changes

John S. Walsh

Please note the following changes in your KBA Attorneys’ Directory and other office records: Daniel L. Bell BPR # 029047 The Bell Law Office P.O. Box 10908 Knoxville, TN 37939 Ph. (865) 356-9495 danielbelllawoffice@gmail.com

January 2017

Jennifer D. Evans BPR # 026290 Patricia Nash Designs 1132 N. 6th Avenue Knoxville, TN 37917 Ph. (865) 2281032 jennifer927@gmail.com

Troy B. Jones BPR # 033064 The Law Office of J.D. Lee P.O. Box 2308 Knoxville, TN 37901 Ph. (865) 456-5901 Fax: (865) 262-8855

DICTA

New Law Student Members Megan S. Austin Mia C. Barber Monique Brown Campbell D. Cox Sarah E. Guthrie Elizabeth C. Harwood Clara Johnson Sharon Kumi Ryan M. Lamb Joseph K. Larkin Wilson D. Luther Jr.

Michael E. Matuson Ashley D. McGhee Samuel Millard Grant Mitchell Keaton W. Murphy Andrew B. Schrack Mycol E. Scott Matthew Sharp Avery C. Sharp Ariane Sowa Brian D. Wilson

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

PRO BONO PROJECT By: Kathryn Director

Ellis

First, let me thank all of you for electing me to serve on the KBA Board of Governors. I am honored to have been selected to serve an organization that does so much to serve others.

It seems as though 2016 has continually brought us new reasons for helping those around us and new opportunities to serve. With the fires that rushed through Gatlinburg and Sevier County at the end of November, unfortunately another opportunity has arisen. And, just like with every other opportunity, members of the KBA have stepped up to the plate, in addition to many other attorneys from throughout East Tennessee and the entire state.

Upcoming Volunteer Opportunities January 11 – Veterans Advice Clinic * Location: Public Defenders’ Office * Time: 12:00 to 2:00 January 21 – Blount County Saturday Bar * Location: LAET Blount County Office * Time: 9:00 to 12:00 January 23 – Sevier County Fire Victim Clinic * Location: TBD * Time: 1:00 to 5:00

Right now, LAET, the TBA, and TALS, as wells as other groups and agencies are working together to respond to the tragedy that hit Sevier County and to help the victims in as many ways as possible.

The important thing for us to remember is that the need for help in Gatlinburg and Sevier County will not disappear with the new year, and the regular need of clients served by LAET will continue to exists. This means that there will be even more opportunities to help as 2017 starts.

On December 9 and December 19, volunteer attorneys from Knoxville, Sevierville, Gatlinburg, Kingsport, Johnson City, and other areas, as well as law students got together in Sevierville and then in Gatlinburg to assist victims of the recent fires with their emerging legal issues. Among the Knoxville attorneys who joined in to help were Jason Lambert, Russ Swafford, Meagan Collver, and Daniel Ellis.

February 4 – Knox County Saturday Bar * Location: LAET Knox County Office * Time: 9:00 to 12:00 February 8 – Veterans Advice Clinic * Location: Public Defenders’ Office * Time: 12:00 to 2:00 February 11 – Blount County Saturday Bar * Location: LAET Blount County Office * Time: 9:00 to 12:00

Thank you again for all of your service in 2016! I look forward to working with all of you in 2017!

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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DICTA

January 2017

Q: A:

THE LAST WORD By:

Jack H. (Nick) McCall

Greg: in honor of the 82nd birthday of “The King,” tell us about your life and times as an Elvis Presley impersonator.

GREGORY F. COLEMAN Greg Coleman Law PC

My mom was a huge Elvis fan. Growing up, almost every day after school, I’d put on those old vinyl records (many millennials and Gen X’ers may not know or remember what those are!), and I memorized the words and lyrics. It became pretty apparent after awhile that I was a pretty good Elvis imitator. I did it by myself for some years and then I eventually got with a band – as good a group of musicians as one could possibly have; more on them in a bit – and things took off from there.

I went to college at Jacksonville State in Alabama on a music scholarship. I played the trombone in the school’s jazz band, and I was also a jazz vocalist. I still loved Elvis, though, and the first time I did Elvis officially was at a gig in Knoxville in 1986 while I was in law school.

I’d played around with my Elvis impersonations before then, but that really launched my Elvis impersonation career. Since then, I have done Elvis all around the world. I have two full costumes: Elvis’s Las Vegas whites, and the 1968 “Comeback Concert” black leather suit, plus the gold glasses and the scarves that he’d hand out during his shows.

I’ve done several Elvis shows locally. A few years ago, for a couple of years in a row, we put on a full show for the Knoxville branch of the American Cancer Society. It was billed as the “Viva Knox-Vegas!” event: it was in the main ballroom of the Convention Center, and charitable gaming tables were set up to enhance the Las Vegas effects, plus I brought my full band for that show.

Also, when President Bush and the Japanese Prime Minister were together in America, in honor of the Prime Minister and his love for Elvis, WBIR had me come in to sing an Elvis song. The last big gig I played in Knoxville was for Christmas 2014, for the Knoxville Academy of Medicine at the NV night club.

Our band is just second to none. Our drummer, Tim Paul, has a master’s from UT, and so does our bass player. The piano player used to play for the Lee Greenwood Theater, and our two guitar players are both seasoned session players in Nashville. For some shows, to add to the level of realism, I have my two “usual bodyguards” standing by my side!

When I get on stage: yes, I do feel like Elvis, and I go all-out to be Elvis: the voice, the looks, the moves, the songs. (The pelvis still works, although it is maybe not as young as it used to be.) We try to set it up like a real Elvis concert: the band plays the theme from “2001: A Space Odyssey,” I come out at the big moment and break into “CC Ryder,” and we’re off. It’s a long show.

I played Elvis in Beijing before the 2008 Summer Olympics; besides that, I have also played Elvis overseas in Bangkok, Thailand, Malaga, Spain and Istanbul, Turkey. It’s very cool to do a gig in a place like Istanbul and while singing, look out to see women in full burkas dancing like mad to “Hound Dog.” (That was kind of a “Harum Scarum” moment!)

In some places overseas, the audiences are really something: they act like Elvis isn’t dead. In China, just before I got onstage, I recall my interpreter saying: “When I tell you when, you get onto the stage.” It was a hoot. The interpreter said the words, and I was in full Las Vegas whites, ready to go--and it took forever to get onstage: every person standing by the stage stopped me to take a picture of “Elvis.” When I finally got up on the stage, it felt like an eternity since I had started moving. It was crazy to see the audience dancing to “Heartbreak Hotel” and “All Shook Up.”

That’s what I love about doing this: Elvis Presley and his memories can still bring joy to so many, all across the world, no matter what language or culture. It’s a cool and fun thing to be able to honor Elvis in this fashion.

“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 .

January 2017

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KBA President Wayne R. Kramer presided over the Annual Meeting of the Knoxville Bar Association on Friday, December 9, 2016. More than 250 lawyers and judges were in attendance. Mr. Kramer announced that the following KBA members were elected as officers for 2017: Keith Burroughs – President-Elect; Wynne Caffey-Knight – Treasurer; and Hanson Tipton - Secretary. The membership elected the following KBA members to the four open positions on the Board of Governors: Dwight L. Aarons, Kathryn St. Clair Ellis, Stephen Ross Johnson and Mary D. Miller. Amanda M. Busby assumed the presidency of the Knoxville Bar Association at the close of the meeting.

Mark Stephens was presented the highest award of the Knoxville Bar Association, the prestigious Governor’s Award. The Governors’ Award is given each year to a lawyer whose peers believe has brought distinction and honor to the legal profession. Mr. Stephens is a worthy recipient of the Knoxville Bar Association’s Governors’ Award for his enduring, faithful and distinguished service to the community. The Presidents’ Awards for 2016 were presented to Chancellor John Weaver and Garry Ferraris for their outstanding service as Chairs of the Professionalism Committee. Nick McCall was recognized with the DICTA Award for Outstanding Writing for his Last Word column in the Association’s monthly magazine.

Samantha Parris was introduced as President of the Knoxville Barristers, the Young Lawyers Division of the Knoxville Bar Association and it was announced that Mikel Towe and Elizabeth Towe were presented the Barristers’ Presidents’ Awards.