DICTA.June 2018

Legal Update: Remote Sellers and State Use and Sales Taxes: Will SCOTUS overturn Quill or lob the hot potato back to Congress? . . . Page 11 Schooled in Ethics: Supreme Court Rejects Proposed Ethics Rule Forbidding Discriminatory Conduct . . . Page 21

A Monthly Publication of the Knoxville Bar Association | June 2018

DECRIMINALIZING MEDICAL MARIJUANA IN TENNESSEE

AROUND THE COMMUNITY By: Ian Hennessey London & Amburn

FAITH-BASED ACCESS TO JUSTICE

Five years ago, the Tennessee Access to Justice Commission launched a faith-based initiative called the Tennessee Faith and Justice Alliance (“TFJA”). At the time, it would have been hard to imagine the impact the project has had – not only in terms of its impact on the community but also on its volunteer attorneys.

The goal of TFJA is simple: support and encourage faith-based groups in Tennessee who commit to providing legal resources to their congregations and communities. “Faith communities are a natural fit with our efforts to help those in need find access to legal advice,” said Tennessee Supreme Court Justice Cornelia A. Clark at the time. “And with our goal of helping more lawyers find more occasions to provide pro bono services, this is the ideal opportunity for attorneys to put faith in action in their own worship communities.”1 Not long after the TFJA was launched, the Knoxville Bar Association (“KBA”) Board of Governors granted approval to the KBA Access to Justice Committee (“ATJ Committee”) to adopt the project at the local level in partnership with the Tennessee Access to Justice Commission, Legal Aid of East Tennessee, and the University of Tennessee College of Law.

O

ver the past two years, KBA attorneys have served over 250 people in eight faith communities all across the Knoxville area.

In each instance, we have worked alongside the faith community to serve their congregants, those the faith community serves, and anyone else who finds their way to the clinic that day. Last year, a man walked over five miles from the Volunteer Ministry Center to Colonial Heights United Methodist Church to receive legal assistance. On several occasions, there have been long lines forming at church doors even before the first attorney volunteer arrives. The faith leaders we have partnered with have repeatedly expressed deep appreciation to our volunteers, KBA, and Legal Aid of East Tennessee.

But the impact of the TFJA clinics can also be measured by the effect it’s had on its volunteer attorneys. Attorney Adam Moore read a previous article in DICTA about TFJA clinics and was inspired to host one at his own congregation, Grace Lutheran Church. Moore recently reflected on the experience, stating: “It was an inspiring and amazing sight to see so many attorneys and law students fill the worship hall, graciously ready and willing to help others in need. The turnout was better than I anticipated, and no one seeking advice was turned away. I genuinely got a sense that participants left feeling heard, validated, and cared about. I took great pride in the partnership of the bar association I am a part of and the church I attend, coming together in a meaningful way, to serve and love others in our community.” A KBA attorney who wished to remain anonymous stated: “I like these types of clinics because I feel like I can make an immediate impact. Our cases drag on for years and therefore seeing an actual positive result is few and far between.

But, with the [TFJA] clinic, I feel like I can help a person that day; make a difference that day – that is the goal, at least.” Another KBA attorney who wished to remain anonymous said, “It’s rare in my practice to really get to be the ‘hands and feet,’ so this is just a wonderful opportunity to serve.”

2

Some attorneys have also shared how the TFJA clinics have opened them to participating more in pro bono activities. One KBA attorney commented: “I didn’t have much in the way of experience at pro bono clinics before I volunteered at a TFJA clinic. Since my practice tends to be more concentrated on corporate matters, I felt like I would be doing a disservice to those seeking legal advice on things like landlord-tenant, estate planning, and family law matters. Once I showed up, however, I quickly learned that many of the questions are pretty basic. When there was an issue I didn’t have much experience with or where I didn’t know the answer, there was plenty of help from the other volunteers and the Legal Aid folks who see these issues all the time. Now, I try to volunteer whenever I can!”

To date, TFJA clinics have been held at First Baptist Church, First Apostolic Church, Colonial Heights United Methodist Church, Beacon of Hope Ministries/Vestal United Methodist Church, St. Luke’s Episcopal Church, Grace Lutheran Church, Ball Camp Baptist Church, and most recently, Second United Methodist Church. As of the date this article went to press, there are additional clinics scheduled at CrossWalk Community Church ( June 2) and Annoor Academy of Knoxville (September 8), as well as at least one remaining open date through the end of 2018.

The KBA Access to Justice Committee would like the thank the following volunteers who have helped at one or more TFJA clinics: Sarah Abel Richard Austin Joshua Ball Jonathan Blanchard Wade Boswell Keith Burroughs Amanda Busby Tracy Chain J. William Coley Jason Collver Meagan Collver Jonathan Cooper Savannah Darnall Erica Davis Robert Downs John Eldridge Kathryn Ellis Daniel Ellis Don Ferguson James Fogelsong Paul Forsyth Katherine Goodner Gerald Gulley Janet Gurwitch Lisa Hall Mike Hammond Mary Beth Hendershot Ian Hennessey Constance Herinkova

Amy Hess Rachel Hurt Rachel Jenson Donovan Justice Katherine Kane Adelina Keenan Soojin Kim Jason Lambert George “Buck” Lewis Amy Lighter Jason Long Christina Magrans-Tillery Phebe McLin Adam Moore Jane Morris Joanna O’Hagan James Parker Samantha Parris Elizabeth Peterson Shawn Ross Thomas Shank C. Clifford Shirley Keith Stewart Lee Ann Swarm Jennifer Pearson Taylor Marsha Watson Terry Woods Bart Williams David Yoder

1 https://www.tncourts.gov/press/2013/02/05/faith-based-initiative-seeks-align-probono-attorneys-their-worship-communities

DICTA

June 2018

In This Issue

Officers of the Knoxville Bar Association

COVER STORY

16

June 2018

Decriminalizing Medicinal Marijuana in Tennessee

CRITICAL FOCUS

5 President Keith H. Burroughs

President Elect Wynne du Mariau Caffey-Knight

Treasurer Hanson R. Tipton

Immediate Past President Amanda M. Busby

Secretary Cheryl G. Rice

KBA Board of Governors Charme P. Allen Maha Ayesh Jamie Ballinger-Holden E. Michael Brezina III Kathryn St. Clair Ellis

Stephen Ross Johnson Elizabeth K.B. Meadows Mary D. Miller Carrie S. O’Rear T. Mitchell Panter

M. Samantha Parris Robert E. Pryor Jr. Mikel A. Towe

The Importance of Planning for your Family and your Law Practice in the Event of an Untimely Death

Magistrate Judge Debra C. Poplin A Career of Public Service to the People of East Tennessee

The Best in Trial Preparation: Testing Your Case Through the Mock Trial

7

9

11

The Knoxville Bar Association Staff

Jonathan Guess Database Administrator

Lacey Dillon Programs Administrator

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

Tracy Chain LRIS Administrator

Volume 46, Issue 6

Dicta

All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment).

Exceptions to this policy must be cleared

by KBA Executive Director Marsha Watson (522-6522).

Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Elizabeth B. Ford Joseph G. Jarret F. Regina Koho David E. Long

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

Managing Editor Marsha Watson

KBA Executive Director

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

June 2018

Legal Update

Management Counsel: Law Practice 101

Save Yourself Some Money – Avoid Guaranteed Payments

Supreme Court Rejects Proposed Ethics Rule Forbidding Discriminatory Conduct Conventional Wisdom

Schooled in Ethics

WISDOM

2

Around The Community

Faith-Based Access To Justice

She Shines

Cody Farmer

8 10

Outside My Office Window Walking the Walk

15 Hello My Name Is

Molly Simbeck 18 Of Local Lore & Lawyers “Madam Sheriff, Arrest Those Men!”

Adelyn Bryson LRIS & Membership Assistant

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.

Practice Tips

20 Tammy Sharpe CLE & Sections Coordinator

Judicial News

Remote Sellers and State Use and

Sales Taxes: Will SCOTUS overturn

Quill or lob the hot potato back to Congress?

13

Marsha S. Watson Executive Director

President’s Message

DICTA

19 Of Thermometers and Thermostats

Dangerous Unselfishness 24 Life & Law in Harmony

How Do You Feel About Being Busy?

25

Well Read

The New Jim Crow: Mass

Incarceration in the Age

of Colorblindness by Michelle Alexander

26

Your Monthly Constitutional

Immigration and that Pesky Fourteenth Amendment

Parlez-vous Français?

27 28

Long Winded

Hidden Treasures

Love Shack, Baby!

COMMON GROUND

4 6 23 29 30 31

Section Notices/Event Calendar Bar Hopping Barrister Bullets Bench & Bar In the News Pro Bono Project Last Word

3

event

EVENT CALENDAR & SECTION NOTICES

Section Notices

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

Alternative Dispute Resolution Section The ADR Section will be planning regular CLE throughout the year. Save the date for the Annual ADR extended CLE program on September 14, 2018. If you have a program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Bob Stivers (386-1630).

Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. To have your name added to the section list, please contact the KBA office at 522-6522.

If you have program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000).

Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. Save the date for the Annual Corporate Counsel Update CLE on August 23, 2018. 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. Join the Criminal Justice section for a CLE entitled “Criminal Law Practice: How to Avoid Ethics Complaints to the BPR” on July 16. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Headrick (524-8106) and Sarah Keith (215-2515).

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

Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs LeAnn Mynatt (549-7000) or Jimmy Wright (637-3531).

Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040) Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies.

If you would like further information on the section, please contact Leah McClanahan (545-4260) or Ron Mills (215-2050).

Juvenile Court & Child Justice Section Members of the KBA are invited to join the KBA’s Juvenile Court & Child Justice Section, formerly the Unmet Legal Needs of Children Committee. Join the Section for a CLE entitled “Tennessee Juvenile Court Practice for Beginners Part Deux” on August 24. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440).

New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2016 will automatically be opted-in to the section. Join us for a CLE entitled “Tips for Avoiding Deposition Disasters” on June 25 at Abridged Beer Company. For information about the Section, please contact Section Chairs Liz Anne Bowden (637-1980) or Sam Louderback (546-0500) Senior Section The KBA Senior Section will meet next on Wednesday, June 13, 2018 at Calhoun’s on the River.

The program title is “The Skinny on Knox County Politics” and will feature Bill Swann, retired Circuit Court, Division IV Judge. The luncheon will be held from 11:30 a.m. to 1:00 p.m. The price includes an entree, vegetable, salad and beverage. Please indicate your choice of grilled baked scrod or monterey chicken. Register online by clicking June 13 in the Event Calendar at www. knoxbar.org. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307).

Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. Join the Solo Practitioners & Small Firms section for a CLE entitled “Expungement Law for the Non-Criminal Lawyer” on August 30. To have your name added to the section list, please contact Section Chairs Tripp White (712-0963) or Patrick Slaughter (637-6258).

4

DICTA

June

calendar

n 2.

TN Faith & Justice Legal Advice Clinic

n 6

Rooftop Party

n 12 Professionalism Committee Meeting n 13 Veterans Legal Advice Clinic n 13 Barristers Meeting n 13 Senior Section Luncheon n 13 Publications Committee n 14 Lunch & Learn n 14 Judicial Committee n 15 Fireflies in the Smokies n 18 Diversity in the Profession Committee Meeting n 20 Board of Governors Meeting n 25 New Lawyers Section CLE n 28 Volunteer Breakfast

July n 3

Law Office Tech Committee Meeting

n 10 Professionalism Committee Meeting n 11 Veterans Legal Advice Clinic n 11 Barristers Meeting n 12 Lunch & Learn n 12 Judicial Committee n 16 Criminal Justice Section CKE n 16 Diversity in the Profession Committee Meeting n 27 Summer Video Replay CLE Series

Mark Your Calendar Supreme Court Dinner September 5, 2018 June 2018

PRESIDENT’S MESSAGE By: Keith H. Burroughs Egerton, McAfee, Armistead & Davis. P.C.

THE IMPORTANCE OF PLANNING FOR YOUR FAMILY AND YOUR LAW PRACTICE IN THE EVENT OF AN UNTIMELY DEATH

For those of you that may not know, my primary practice area is estate and trust planning and administration. On a daily basis, I discuss with clients the various options they have available for passing along their property through appropriately prepared estate planning documents. It appears that the greatest service I may be able to provide my colleagues at the Bar is to discuss with you some planning considerations and pitfalls to avoid. With the recent tragic death of my friend and fellow law partner, Rocky McClamroch, it occurs to me that now is the right time to share that message.

Many lawyers have no estate plan in place at all and others have at best a piecemeal and disjointed plan. Every lawyer should have at a minimum a Will, Durable General Power of Attorney for Business Affairs and Healthcare, Living Will, and possibly other advanced directives. Your Will should identify an Executor to be in charge of the administration of your Estate. A lawyer’s Executor should probably be someone with familiarity with the practice of law and be sufficiently sophisticated to deal with the issues that arise after the death of a lawyer.

In the last several years, I have seen several Wills drawn by lawyers that do not regularly practice in this area. One recurring error I see is the inclusion of specific bequests and devises of personal and real property to named individuals without the condition of survivorship of the named beneficiary. Pursuant to TCA § 32-3-105, a bequest or devise to an individual who does not survive the testator but has issue living at the testator’s death will pass to the issue of the deceased beneficiary unless the Will requires a different disposition. If you are going to include specific bequests or devises in a Will and you want that property to pass to the designated beneficiary’s issue if the beneficiary fails to survive you, you should consider incorporating a trust in your Will to hold that property interest until certain ages or other criteria are met in case the issue of the designated beneficiary is under the age of majority. This recommendation is especially true for devises of real property as real property can be vested in a minor, but it may not be easily divested from the minor since a minor is incompetent to convey title to real property.

By utilization of a trust, the Trustee can be granted fiduciary powers to control trust real property, including powers of liquidation, exchange or other disposition that is deemed necessary or appropriate by the Trustee.

For lawyers with minor children to whom the lawyer desires to pass property at death, a trust should be utilized as part of the plan to hold those assets intended for the benefit of the lawyer’s minor children. The assets can be made available to the Trustee to use for the benefit of the beneficiaries prior to their reaching the age at which time the property in trust will vest pursuant to the terms of the trust.

Another consideration is TCA § 31-2-103, referred to as the “vesting statute.” Real property vests automatically at death in the testamentary heirs of a Decedent unless the Will specifically makes the real property part of the Probate Estate and gives the Executor custody and control with power of sell of the real property. If a beneficiary is a minor, the property will vest in the minor and a guardian (and probably a guardian ad litem) will have to be appointed to evaluate a subsequent liquidation or other disposition of the property subject to court approval.

Estate planning by payable or transfer on death designations also presents similar problems if a beneficiary is a minor. To avoid the need for an appointment of a guardian for the minor child’s property, a trust under Will or intervivos trust for the benefit of the beneficiary can be designated as the death beneficiary of the payable on death account. For retirement plan assets with minor beneficiaries, I recommend that you seek qualified counsel to complete the designation of beneficiary to a trust for the benefit of the minor that will satisfy the Internal Revenue Service Rules to treat the distribution as an inherited IRA for the minor June 2018

beneficiary to realize maximum income tax deferral. Internal Revenue Service Rules controlling these types of assets are very specific and can be easily violated, resulting in unnecessary or unintended income tax consequences.

Lawyers also have a heightened responsibility to make sure we have contingency plans in place for our practices in the event of an untimely death or disability of a lawyer. This heightened responsibility is even more important for small law firms and solo practitioners. It is recommended that in anticipation of such instance, the lawyer specifically include in the lawyer’s estate plan a designated successor attorney(s) to take over the lawyer’s practice or specific concentration areas of the practice. The designated successor attorney(s) should also be consulted during the planning process to make sure the designated successor attorney(s) is willing to take on that responsibility.

Most lawyers are dutiful in retaining a tickler system or calendar diary system that monitors and reminds the practitioner of upcoming deadlines, statutes of limitation, and similar time limitations that are critical to client representation. However, not knowing what needs to be done and what has been done on a file leaves the designated successor attorney(s) in a difficult situation. My legal assistant and I keep a docket of every active case that lists the nature of the case, the court in which it is filed, documents that are required to be prepared and filed, the deadlines for filings, documents and other activities that have been completed on the file and any other information regarding a client’s file that would be helpful upon quick review to determine what needs to happen on the file and when. We maintain this docket in one single electronic file and it is updated daily.

Passwords that are not documented on paper can present impenetrable barriers to information. Whether using a software like Lastpass or other encrypted electronic format in which to retain all passwords, it is recommended to retain a hard copy paper list of all user names and passwords for all personal and business electronic access information maintained in a safe and secure location but that at least one or more trusted individuals have access to in the event of an untimely death or disability of the lawyer. As passwords are updated or changed, this list needs to be updated, reprinted, and substituted for the most recent prior list. For smaller firms, someone in addition to the principal attorney should be added as an authorized signatory to the firm’s operating and trust accounts.

It is also recommended to retain the following information in an easily accessible place, with contact and account information where applicable: clients; vendors; post office box or other mail service; bookkeeper or accountant; landlord; firm entity documentation and filing deadlines; office property; general and professional liability insurance carriers; health insurance, disability and life insurance providers; worker’s compensation insurance provider, safe deposit box(es) and keys to each box; leases for office space and equipment and the term remaining on each; operating and trust accounts; individual trust account ledger access information and trust account activity information; business credit card; location of all paper files, including retired files, and access codes and indexes for active and retired files; identity of designated successor attorney(s); and location of your Wills, Trusts, and other estate planning devises. This is just a summary of the information that should be maintained by lawyers to assist with the transition of a practice upon death or disability to the designated successor attorney(s).

By taking these actions and planning ahead, we can all provide for our loved ones and clients in death as professionally as we did during lifetime. Failing to plan can leave an absolute disaster for your family and your law practice.

DICTA

5

BAR HOPPING By: Brady Cody Lewis Thomason

DICTA DICTA is a monthly publication of the Knoxville Bar Association. DICTA is offered to all members of the Knoxville Bar Association as one of the many benefits of membership. This issue represents one of our “super circulation issues” and is sent not only to all members of the Knoxville Bar Association but to all lawyers licensed to practice law in Knox County and all of its contiguous counties, Blount, Loudon, Anderson, Union, and Sevier.

DICTA is an important publication to the Knoxville Bar Association and it provides news regarding members and events of the Knoxville Bar Association as well as information on upcoming CLE seminars. It also provides news and notices from the Knoxville Bar Association president, the Barristers, and the Knoxville Bar Association's nineteen different committees and eleven different sections. If you are interested in becoming a member of the Knoxville Bar Association, please contact KBA Executive Director Marsha Watson at 505 Main Avenue, Suite 50, P.O. Box 2027, Knoxville, Tennessee 37901-2027, (865) 522-6522 or access our award-winning website at www.knoxbar.org.

IR S C UP IS UL E S AT R U E IO

Think you can name this courthouse? Email me at bcody@lewisthomason.com with your answer. Correct answers will receive a shout-out in the next issue of DICTA. Check the August issue for the reveal and a list of the big winners.

N

EDITORS’ NOTE:

New for 2018, Bar Hopping will highlight one of the many beautiful courthouses around the State. The trick? It is up to you to figure out where. We had a single winner last month. Congratulations to James Parker for correctly identifying the Old County Courthouse in Knox County.

C

Have a photo that you would like to submit? Send me an email and have it featured in an upcoming issue.

C L I N I C A L LY S P E A K I N G

We know that Tennessee is the Volunteer State, and Knoxville attorneys are doing just that, making a difference, one client at a time, at local legal clinics. Clinics coordinated by KBA committees and sections may be found at www.knoxbar.org under “CLE & Events” and “Upcoming Legal Clinics” along with online signup forms.

6

Upcoming clinics include: • June 6 - Faith and Justice Legal Advice Clinic at CrossWalk Community Church, 2131 Gov. John Sevier Highway, 9 a.m. - 12 p.m. (sign up at www.knoxbar.org) • June 13 - Barristers’ Access to Justice Veterans’ Legal Clinic at the Knox County Public Defender’s Community Law Office, noon - 2 p.m. (sign up at www.knoxbar.org) • June 16 - Blount County Saturday Bar at the Blount County office of Legal Aid of East Tennessee, 9 a.m. - 12 p.m.

• July 7 - Knox County Saturday Bar at the Knoxville office of Legal Aid of East Tennessee, 9 a.m. - 12 p.m.

• July 11 - Barristers’ Access to Justice Veterans’ Legal Clinic at the Knox County Public Defender’s Community Law Office, noon - 2 p.m. (sign up at www.knoxbar.org) • July 21 - Blount County Saturday Bar at the Blount County office of Legal Aid of East Tennessee, 9 a.m. - 12 p.m.

• August 4 - Knox County Saturday Bar at the Knoxville office of Legal Aid of East Tennessee, 9 a.m. - 12 p.m.

• August 8 - Barristers’ Access to Justice Veterans’ Legal Clinic at the Knox County Public Defender’s Community Law Office, noon - 2 p.m. (sign up at www.knoxbar.org) • August 11 – Pro Bono Debt Relief Clinic – 9:30 a.m. – 12 p.m., Knox County Public Defender’s Community Law office. (sign up at www.knoxbar.org) • August 18 - Blount County Saturday Bar at the Blount County office of Legal Aid of East Tennessee, 9 a.m. - 12 p.m.

To volunteer for ANY Saturday Bar, contact Kathryn Ellis, LAET Pro Bono Project Director, by phone at (865)637-0484, by email at kellis@laet.org, or visit http://bit.ly/2PBPvol to sign up online.

If you’ve been on the fence about volunteering or wondering if you’re needed, we can reassure you that YES, you are needed, and you’ll have a great time. Remember that every attorney has something that no other profession has: the ability to provide legal information which can reassure someone, provide them with a direction to go, or just offer some certainty in the face of legal questions. Clinics are collaborative, with attorneys of many backgrounds and levels of experience. Volunteers have commented that clinics remind them of the reasons they wanted to practice law in the first place.

DICTA

June 2018

JUDICIAL NEWS By: Paul E. Wehmeier Arnett, Draper & Hagood, LLP

MAGISTRATE JUDGE DEBRA C. POPLIN: A CAREER OF PUBLIC SERVICE TO THE PEOPLE OF EAST TENNESSEE

For more than 27 years, Magistrate Judge Debra Poplin has dedicated her career to the people of East Tennessee. Her route to the position of Magistrate Judge has uniquely prepared her to serve the Bench and Bar of the United States District Court for Eastern District of Tennessee.

Magistrate Judge Poplin’s interest in government and public service dates back to her time in middle school. From a young age she showed an interest in government and wanted to serve her community in some governmental capacity. Her interests in government remained through her time at the University of Tennessee where she studied political science and business to prepare her for a career in public administration.

After her first year of law school at the University of Tennessee, Magistrate Judge Poplin’s husband was transferred by his employer to Southwestern Ohio, where she completed law school at the University of Cincinnati. After law school, it was Magistrate Judge Poplin’s plan to pursue a general counsel position in the Cincinnati area. However, in the midst of preparing for the Ohio bar exam, circumstances intervened. Her husband, Rick Poplin, was reassigned back to East Tennessee. Pleased to be able to pursue her profession in her home community, Magistrate Judge Poplin began preparing for the Tennessee bar exam instead and obtained her license in 1990.

Pursuing her general counsel and governmental interests, Magistrate Judge Poplin was encouraged to apply with the City Law Director’s Office. Over the next 20 years, Magistrate Judge Poplin would serve in various positions in the Law Director’s Office, including: interim Law Director under Mayor Victor Ashe in 1998; Deputy Law Director in 2001; and the first female Law Director in 2008 under Mayor Bill Haslam.

Working in the City Law Director’s Office, she represented the City of Knoxville and the Office of the Mayor, but her duties also included meeting with individuals and providing information to help them navigate city government. She served the City for more than 20 years which was briefly interrupted while she joined the law firm of Ritchie, Fels & Dillard in 1999. In private practice, she represented clients in civil litigation and personal injury matters and advised clients about corporate law.

After serving the City as Law Director for nearly four years, Magistrate Judge Poplin was selected to serve as Clerk of Court to the United States District for the Eastern District of Tennessee in January of 2012. In her role as Clerk, Magistrate Judge Poplin’s skills working with the public were again an asset assisting the public with navigating the Federal Court system. In addition to various other public functions, the Clerk’s office is responsible for jury administration. After completion of their service, the Clerk’s office surveys jurors about the process, and Magistrate Judge Poplin noted that jurors would mention when attorneys seemed to struggle with the electronic presentation equipment during trial. As a practice tip, Magistrate Judge Poplin encourages attorneys to work with the Court staff to become familiar with the equipment’s functions and comfortable presenting their client’s case beforehand to avoid this distraction to their arguments. Additionally, as an advocate

June 2018

of community outreach, she believes that the more attorneys can interact with members of the public in the course of their practice and by performing service in the community, the profession will earn more respect from members of the general public.

Magistrate Judge Poplin was appointed to the Magistrate Judge vacancy arising from the retirement of Magistrate Judge Clifford Shirley.

Her appointment was announced in September of 2017 and her term began February 13, 2018. During the intervening period, she was able to work closely with Magistrate Judge Shirley and the other Magistrate Judges in the District.

While Magistrate Judge Poplin acknowledges that the position requires a breadth and depth of legal knowledge, it is evident that her prior experiences in the City Law Department, private practice, and with the Clerk’s office, have specially prepared her for the work. As evidenced by the speakers at her investiture, her keen legal mind and deep interest in the law and legal process make her highly qualified for the position.

Three months into her tenure on the bench, Magistrate Judge Poplin’s advice to attorneys practicing before her is to focus their written and oral arguments in a thorough yet concise manner.

On a personal note, Magistrate Judge Poplin and her husband have two teenage children, Kendall and Preston. Kendall is starting college this fall, and Preston keeps his parents busy almost year round as spectators of his football, basketball, and baseball games. When her family’s schedule permits, however, the Poplins enjoy spending time on their farm.

The Knoxville Bar Association congratulates Magistrate Judge Poplin on her recent appointment and looks forward with great interest as she continues to serve the public and bar in her role as Magistrate Judge.

DICTA

7

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

SHE SHINES

She crouched and moved to the side of the stage after her third costume change. She was playing a total of seven characters in Candide, Voltaire’s novella turned comedy in an auditorium in Columbia, South Carolina. It was the perfect platform for Cori to show off her French and her striking comedic gifts. To the man with the graying hair, sitting smack dab in the middle of the theatre, the laughter came with a few tears. When she jaunted onto the stage laughter was not far behind.

She cried out her lines in flawless French as another character shot her with a musket. It took at least 6 shots to bring her down. She eventually succumbed on the stage beneath the lights, laughs, and adoring gaze of those assembled and then went for the next costume change. Her mother and I laughed uncontrollably. Cori Crocker is twenty-two and poised to graduate in two weeks from the University of South Carolina with a B.S. in Marine Science and a minor in French. She will graduate Summa Cum Laude and has made many lifelong and adoring friends. As I watched in the dimly lit auditorium a couple of weeks ago I couldn’t help traveling back 17 years to when she was a kindergartner and the moment I watched her on stage for the first and only other time. It was just a few weeks after I became her stepfather.

No one plans on being a step-parent. No one plans for divorce or expects their spouse to die at the age of 31. Life happens. You have to adjust. When I met her, Cori was 5 years old. Her brother, Cliff, was 8. I had two kids of my own when I fell hard for Cori’s mother. Then I fell for Cori and Cliff. It took them a little longer to fall for me. When she announced she wanted to perform in the Bluegrass Elementary talent show, Cori and I were just getting to know each other. I already knew her to be a soft-hearted and sweet child who was always aware of the emotions in the room. She was wary of the man who’d entered her life and married her mother. A baby like her is allowed to worry about life and her place in it when her parent’s divorce and a stranger with two more kids is all of a sudden the head of her household.

It is a lot to take in for little people. I knew it was, and I obsessed about how I could be a positive influence in her young life. I didn’t want to be a stepdad. I wanted to be her dad. She had a father, one who has been a constant in her life and who loves her dearly. Yet, I vowed to treat her as my own. I wanted to play a large role in seeing to it that she grew into a confident, smart and intelligent woman. I wanted to kick down doors and provide her with opportunities. I read about blended families and consulted with a family psychologist about all six of us moving in together. I wanted to do it right. Cori was an observer and paid attention to everything going on around her during those days. When Nancy and I were dating, Cori once pondered out loud to her mother whether I might be Osama Bin Laden. She had no filter. Still doesn’t. Within a few days of becoming a blended family of six, she announced her decision to enter the talent show. We were a bit shocked when she told us she wanted to perform the Star Spangled Banner. What 5-year-old child decides she wants to do that?

When I asked if she knew all the words to our national anthem, she confidently stated that she did. She wanted to prove it right there in our living room and began to sing. Cori’s version of the anthem was unrecognizable. After “O say can you see…” she butchered almost every line. I told her it was perfect. Indeed it was. Telling her otherwise would’ve likely embarrassed her and crushed her desire to enter the

8

contest thereby depriving a bunch of people of the cutest performance ever given. Over the next several days we practiced. I never corrected the lyrics, but instilled in her as much confidence as I could by telling her how good she was and how everyone was going to love her. Several nights later, in front of a packed gymnasium, she brought the house down. She sang the entire song (well, it had the right number of verses) without accompaniment, butchering every line in the most beautiful and perfect way. Just like we practiced. She delivered it with such confidence that you’d thought she was Whitney Houston at the 1991 Super Bowl.

I remember laughing through some tears, proud that I’d been a part of it and amazed by my new life and her place in it. It remains one of the highlights of my life.

She loves music - like me. She loves dogs - like me. She loves that I love her mother. She loves me and has never doubted how much I love her. She told me how important I am in her life in a Christmas letter a couple of years ago - I store it with my most treasured possessions. I still think daily about how I can continue to be a positive force in her life. I will always think of myself as a father. I cannot distinguish my love based on labels. And, though I continue to obsess over the role I play in the lives of all four of them, I have no doubt as to the impact she has had in my life - I simply cannot imagine life without her. In our seventeen years together she has affirmed every instinct I had when I asked her mother to marry me and assuaged every fear and insecurity I had about parenting a child not of my blood. She has brought me tremendous joy and pride. Watching her grow into this unbelievable woman has been one of the great honors of my life.

She will board a plane bound for Africa in July. She is going to teach English to French-speaking children in Guinea for 2 years as a member of the Peace Corps despite trepidation and admonitions from all in her life. She is defiant and independent with so much talent, love, and grace.

That’s my girl, and oh how she shines.

DICTA

June 2018

PRACTICE TIPS By:

David M. Eldridge

Eldridge & Blakney, P.C. THE BEST IN TRIAL PREPARATION: TESTING YOUR CASE THROUGH THE MOCK TRIAL

Introduction

Trials in civil cases are becoming increasingly rare as alternative dispute resolution options continue to be the preferred choice for resolving those disputes. The reality in the criminal arena is that in the end, most cases eventually resolve themselves through a plea agreement as well, but trials are far more frequent in criminal practice, particularly in state court prosecutions.

Whether you are preparing for a criminal or civil case trial, it is obviously not in your client’s best interest to do all that hard work in an “echo chamber” without the benefit of learning what real people – not those tainted by a legal education – think about your case. Unless such an effort is made, the first time you will learn anything about how a jury views the case is when the verdict is read. It is of course too late at that point to try to fix what is broken about how the theory of the case is articulated, witness presentation, or other aspects of the trial presentation.

Mock trials are an invaluable learning tool for trial lawyers to provide an unbiased evaluation of the case, help counsel evaluate whether the case theory makes sense, ensure the themes resonate effectively with the jury, observe how critical documents will be viewed, and learn how key witnesses will be considered. I have had the opportunity to participate in mock trial exercises in many cases over the now 30 years of doing this work (hard to believe). My experiences have ranged from working with pioneers in the jury research field who conducted sophisticated multi-day events where our client’s budget could afford that level of expense (in the $30,000 to $50,000 range or more per exercise) to the collection of several friends of the firm gathered in our conference room to pre-try the case with an associated budget of a $50 per diem per participant and dinner. I have never come away from any of these exercises without learning something very valuable that helped me represent my client more effectively.

This piece will discuss how mock trials can be affordably done, the considerations on how they should be structured, and offer some hopefully practical tips on making them effective tools in gaining the knowledge needed to undertake the most effective trial presentation possible for your client.

Mock Trial Options

I describe options for mock trials to our clients in generally three categories. First, the so-called Cadillac option when the expense budget provides plenty of funds, which entails hiring an experienced professional jury consultant to handle the mock trial in a “turn-key” fashion and deliver a detailed report on the event including the demographics of the participants and their reactions to the case. The cost of such an effort can be very high as discussed above but the insights of a good jury consultant can be very helpful and having that assistance takes much of the logistical preparation off your plate. To my knowledge, Knoxville does not have someone who specializes in jury research, so those experts will be found in larger metropolitan areas. We have worked with firms from Chicago and Atlanta, and I note that an internet search discloses firms advertising such services in Nashville.

The second option we will call the “Buick,” which entails using a local marketing research firm to locate the mock trial participants and provide the facilities. This is a much more affordable option and if a jury consulting firm is retained, part of the cost will be using such a firm to provide those services. If the budget is not available to retain a professional consultant, the Buick is by far my most preferred option.

Such market research firms recruit participants based upon the venire from which the jury will be selected who agree to participate for a small per diem, usually $100. Their facilities include a viewing room for lawyers and clients to view the proceedings through a one-way mirror or a closed-circuit monitor. The out of pocket cost for a full day with two panels is typically in the $5000 to $6000 range. Although there may be June 2018

other firms in town of which I am unaware, Southern Solutions is an excellent facility and its staff has always provided us excellent service.

The third option – the Volkswagen – is the least expensive and I think the least effective, but any mock trial effort is worth it. Having the mock trial exercise in your conference room or that of a friendly firm with participants your office recruits from the friends or family of your lawyers or staff presents a very affordable option. It is far better to undertake this effort with those who have no ties to your firm but if care is taken to try to select a cross section of diverse participants, this option can work well.

Keys to a Successful Mock Trial Exercise

The following are a few key points in making the mock trial exercise as effective as possible.

1. Take appropriate steps to ensure that the mock trial itself remains

confidential. Make sure all participants sign a confidentiality agreement.

2. Be sure the opposing side is well represented by presenting its case

strongly and consider having your lead counsel present the

opponent’s case.

3. Prepare it well with the same thoroughness as the actual case.

4. Winning the trial is not the point in a mock trial, learning the most

possible is the goal.

5. The mock panel should be as representative of the actual jury venire

as possible.

6. Make sure the presentation tests the key trial themes and strategy

and exposes weaknesses in your case.

7. Have critical witnesses testify. I have done this both with live

presentation and by video. I found live presentation cumbersome

and awkward. A short video testimony seemed more effective to me.

8. If there are key documents or key pieces of evidence such as

photographs, the defendant’s statement, or test results make sure

they are included in the presentation.

9. Utilize a procedure to measure the mock jury’s reactions after each

stage of the presentation such as a questionnaire with an opportunity

for the participants to make written comments.

10. Use what you learn. Don’t shy away from making major changes in

the trial presentation based upon the mock jury’s reactions.

Conclusion

The mock trial provides the opportunity to conduct the trial experiment in the safety of a “lawyer’s laboratory” where different themes, strategies, and tactics can be explored. There is no substitute for the reaction of “real people” to your case. There are affordable ways to gain this knowledge in every case and doing so puts you in the best position to most effectively represent your client. So, don’t hesitate, get in the lab, and try it once or more before you get in the courtroom.

DICTA

9

WALKING THE WALK By: Sarah M. Booher, Esq. The Law Offices of Ogle, Elrod and Baril, PLLC

CODY FARMERi Name and a little bit about yourself?

Cody Farmer from Lenoir City, TN. I went to the University of Tennessee at Knoxville for undergrad and graduated in 2002 with degrees in Economics and Political Science. My lovely wife Allison and I are expecting our first familial addition in July!

Where did you go to law school? What kind of law did you want to practice when you were in law school?

I went to LMU’s Duncan School of Law and graduated as part of their inaugural class in 2013. As to what kind of law I wanted to practice, I had a pretty open mind about what I’d want to practice, but I know I was looking forward to learning more about criminal law.

So what kind of law are you practicing now and how long have you been doing it?

Were local attorneys helpful in finding your footing and getting comfortable as a new lawyer?

Absolutely, the Knoxville bar is second to none.

Did you have any mentors during law school or since you became licensed? How did those relationships begin? How have they benefitted you and your practice?

My bosses at my first job got me on my feet before and after the bar exam. I met them through my externship at their firm and, in addition to general guidance as to practice, they made a ton of introductions for me.

These days, the KBA is especially important to me because it helps me remain engaged with my local bar, especially since I’m not in a courtroom any more. I’d give the same advice to law students, get engaged early and attend events often.

I work at the Tennessee Valley Authority, and I have been with TVA for three and a half years. I don’t practice at TVA. When I first came here, I was evaluating and writing commercial transactions and power distribution contracts, but I recently took a new opportunity as manager of TVA’s demand response group.

When you went to law school, what did you expect life to be like as an attorney?

What was your favorite class in law school? Why?

I spent a lot more time in my office or in my car driving to court than actually attending court.

Contracts, because in addition to being a great instructor, the professor was also engaging and made a subject that could be dry very interesting. Contracts was definitely the most helpful class for me in law school, because I’m still working on or reading contracts daily.

What skills did you learn in law school that have been invaluable to your practice?

The focus that my law school put on writing has been invaluable to me in the work I do now.

Were there any skills vital to your success as an attorney that you didn’t learn until after school? If so, how did you learn/acquire them?

I worked full time through law school and the bar exam, so working and transitioning from one professional world to another provided its own unique learning opportunity. I’d say, most of all, work helped me develop simply as a professional, which is hard to recreate without being in the workforce.

I never really thought about how my life would be different from one job to another, but I thought I’d be spending a lot of time in court.

Did this turn out to be reality?

Compare your expectations during law school to your real life experiences after.

When I was practicing, the speed of court proceedings was something that surprised me. My perception in law school was that it would move at a slower pace than it actually does, which I think is a good thing given the volume of cases in our courts, specifically criminal courts.

I’m on the road a lot more than I was when I was in practice, so balancing work and personal life is something I’m constantly focused on and I could certainly do a better job at striking that balance.

Anything else I should know?

We really are lucky to have such a great bar here in Knoxville and I’m certainly very fortunate to be a part of it.

This article was conducted with Cody Farmer in his personal capacity. The opinions expressed in this article are his own and do not reflect the views of the Tennessee Valley Authority or the United States Government.

i

What was the best advice you received either during law school?

Immediately after law school I was an associate at a private firm, and a coworker gave me some of the best advice ever: document everything.

If you could go back and give your law school self some nugget of wisdom for school or beyond, what would it be?

Oh my goodness! So many things, but I’d love to go back to the day after the bar exam and tell myself, “Dial back the stress, you passed,” so that those next few months I could talk about something besides whether I passed or not.

What advice would you give to current law students?

First, communicate with your professors. Also, law school is not as hard as it may seem.

How has the practice of law been different for you than what you imagined it to be?

I don’t practice now, but when I did I was surprised at how often clients just lied to your face.

What’s been your greatest challenge as an attorney so far?

10

When I was practicing, it was managing expectations of clients.

DICTA

June 2018

L E G A L U P DAT E By: Lisa A. White REMOTE SELLERS AND STATE USE AND SALES Greg Coleman Law PC TAXES: WILL SCOTUS OVERTURN QUILL OR LOB THE HOT POTATO BACK TO CONGRESS?

Discussing a case that is pending before the U.S. Supreme Court after oral arguments and before the opinion is like skating on thin ice – your evaluation may be okay, but then again, it may not. The case of South Dakota v. Wayfair, Inc.1 was recently argued in the Supreme Court.

The issue is whether the Court will uphold South Dakota’s new and intentionally provocative tax law – as in “Let’s provoke SCOTUS.” This law requires “remote sellers” to collect and pay South Dakota’s use taxes2 for products sold to customers in South Dakota. The current standard requires that the retailer have a “physical presence” in a state to be subject to the state’s use and sales taxes.

But before considering Wayfair, take a step back to the late 1980s.

Mail order sales were common and booming, with catalogues clogging every mailbox. Remote sellers hawked everything from neon parachute pants to floppy disks. Mail order retailers posed serious competition to brick-and-mortar retailers.

In the 1980s, Quill Corporation mailed somewhere in the neighborhood of 60 million catalogues and flyers annually to sell its office products.3 By 1991, Quill’s annual national sales were over $200 million, with approximately $1 million in sales in North Dakota alone.4 Based on earlier Supreme Court precedent,5 Quill Corporation was not required to collect and pay North Dakota’s use taxes. Then, in 1987, North Dakota amended its statutory definition of “retailer” in a bold effort to capture use taxes from remote retailers, like Quill, who regularly or systematically advertised within the state.6 The North Dakota Supreme Court “declined to follow Bellas Hess because ‘the tremendous social, economic, commercial, and legal innovations’ of the past quarter-century have rendered its holding ‘obsolete[,]’”7 and “advances in computer technology greatly eased the burden of compliance” on remote retailers.8 At about the same moment in time, the brand new “WorldWideWeb” became publically available – the changes resulting from this technology in the near future were underestimated.9

After the North Dakota Supreme Court declined to follow precedent, Quill v. North Dakota proceeded to the U.S. Supreme Court.

In May 1992, despite its expressed agreement with much of the North Dakota Supreme Court’s reasoning, the Court reversed its decision, citing the importance of stare decisis. The Court held that a state’s taxation of a remote seller that lacks a physical presence in that state is burden on interstate commerce.10 Therefore, the North Dakota statute violated the “negative implication of the Commerce Clause.”11 But then the Court lobbed the proverbial hot potato to Congress:

South Dakota’s S.B. 106 was introduced on the South Dakota Senate floor on January 27, 2016, and was signed by the governor on March 22.

Tax notices were mailed to 200+ retailers on March 25, and state taxes were due no later than April 25, 2016.18 As you might expect, the retailers were not amused.

Just two years later, on April 17, 2018, oral arguments were heard in the U.S. Supreme Court, where clearly no one doubted that the South Dakota statute’s primary purpose is to provoke the Court into overturning Quill.19 South Dakota’s Attorney General and the Department of Revenue argued that states are losing sorely needed tax income and that software and service providers now minimize a remote retailer’s burden of compliance. They ask the Court to overturn Quill, suggesting other precedents are already in place for Commerce Clause concerns.20 And besides, Congress is unlikely to resolve this problem.

Meanwhile, the retailers are hanging their hat on stare decisis, citing numbers, figures, and costs of compliance to the point of annoying Justice Breyer,21 and arguing the Commerce Clause’s objective to maintain “a single national marketplace that is free and accessible to all participants” would be impeded if Quill is overturned.22

A major factor for the Court appears to be that dormant Commerce Clause cases are treated more like statutes than like constitutional questions. As explained by Justice Breyer, “Congress cannot overturn constitutional decisions, but, in the dormant Commerce Clause case, it’s different, and of course they can, and of course they do.”23 As Stephen McConnell recently described the dormant Commerce Clause, “it is like the crazy uncle who falls asleep on the couch and wakes up at odd moments to utter something loud and inconvenient. The dormant commerce clause perks up every once in a while to announce that a state’s effort to regulate commerce has gone too far.”24 The Quill opinion, even 26 years ago, lacked the Court’s enthusiastic endorsement. Yet, as the Court discussed then and now, Congress is in the best position to address certain problems. Whether remote sellers must pay state taxes on sales to in-state buyers is one such issue. Justice Kagen explains: From this Court’s perspective, the choice is just binary.

It’s – it’s you either have the Quill rule or you don’t. But Congress is capable of crafting compromises and trying to figure out how to balance the wide range of interests involved here... Congress can decide when it wants to craft a compromise and when it doesn’t want to craft a compromise.25

Our decision is made easier by the fact that the underlying issue is not only one that Congress may be better qualified to resolve, but also one that Congress has the ultimate power to resolve. No matter how we evaluate the burdens that use taxes impose on interstate commerce, Congress remains free to disagree with our conclusions.12

Taxes? Congress? Action? Yeah . . . naw. Fast forward to our presentday tech-saturated world where most Americans use the internet13 and Amazon’s 2017 net sales revenue hit a whopping 177 billion dollars.14 Quill stands and at least some remote sellers – retailers that do not have a “physical presence” in a state – still do not pay state use and sales taxes.15

And we finally head back to South Dakota v. Wayfair, where the state legislature intentionally provoked SCOTUS to revisit Quill’s “physical presence” requirement. Similar to Tennessee, “South Dakota has no state income tax and relies on retail sales and use taxes for much of its revenue.”16 The state decided that if Congress refused to pick up the hot potato, South Dakota would, but to succeed, had to “aim[ ] to lose in the lower courts.”17

June 2018

KBA Member T. Scott Jones at the beginning of his legal career in 1991.

DICTA

(Continued on page 12)

11

REMOTE SELLERS AND STATE USE AND SALES TAXES: WILL SCOTUS OVERTURN QUILL OR LOB THE HOT POTATO BACK TO CONGRESS? (Continued from page 11) Although clearly the world has changed since Quill, it seems that the Court may choose to just toss the hot potato back to Congress – again.

CASE: South Dakota v. Wayfair, Inc. U.S. Supreme Court Docket Number: 17-494 Date Argued: 04/17/18 Docket Number: 17-494.

A “sales tax” and a “use tax” similar but “different in conception,” and are justified on different constitutional grounds. McLeod v. J.E. Dilworth Co., 322 U.S. 327, 330 (1944). “A sales tax is a tax on the freedom of purchase . . .. A use tax is a tax on the enjoyment of that which was purchased.” Id. 3 http://www.fundinguniverse.com/company-histories/quill-corporation-history/ 4 Quill Corp. v. North Dakota, 504 U.S. 298, 302 (1992).

5 Nat’l Bellas Hess v. Dep’t of Revenue, 386 U.S. 753, 87 S. Ct. 1389, 1393 (1967).

6 Id. at 303.

7 Id. at 301.

8 Id. at 303.

9 See generally https://en.wikipedia.org/wiki/World_Wide_Web. The irony of citing a website for this footnote should not be lost on any reader.

10 Id. at 312. Contrary to National Bellas, Quill held that “the Due Process Clause does not bar enforcement [North Dakota’s] use tax against Quill.” Id. at 308.

11 Id. at 312. The “negative implication of the Commerce Clause” is also called the dormant Commerce Clause.

12 Id. at 318.

13 Interesting statistics here: http://www.pewinternet.org/2015/06/26/americans-internet-access-2000-2015/ 14 https://www.statista.com/statistics/266282/annual-net-revenue-of-amazoncom/ 15 A number of online retailers, like Amazon and Etsy, already collect taxes in all 50 states voluntarily.

16 State v. Wayfair Inc., 901 N.W.2d 754, 755 (S.D. 2017).

17 “EXCLUSIVE: SD’s Counsel On Wayfair’s Road To High Court,” By Maria Koklanaris, Law360 (May 4, 2018, 3:24 PM EDT); https://www.law360.com/articles/1040455/exclusive-sd-s-counsel-onwayfair-s-road-to-high-court.

18 Id. 19 https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/17-494_7lho.pdf (“But South Dakota law is obviously a test case. You know, it was... devised to present the most reasonable incarnation of this scheme.” 27:6-9).

20 E.g., Pike v. Bruce Church, 397 U.S. 137 (1970).

21 Supreme Court oral argument: 31:17 to 32:6; “The problem really is your brief is filled with stuff.”

22 Supreme Court oral argument: 33:17 to 33:21.

23 Supreme Court oral argument: 12:8 to 12:11.

24 “Don’t Sleep On The Dormant Commerce Clause,” by Stephen McConnell (April 30, 2018, 3:22 PM EDT) https://www.law360.com/articles/1038373/don-t-sleep-on-the-dormant-commerce-clause.

25 Supreme Court oral argument: 23:11 to 23:24.

1 2

12

DICTA

June 2018

MANAGEMENT COUNSEL: LAW OFFICE 101 By: Bradley C. Sagraves Egerton, McAfee, Armistead & Davis, P.C.

SAVE YOURSELF SOME MONEY – AVOID GUARANTEED PAYMENTS

The Tax Cuts and Jobs Act1 that was enacted in December of 2017 made significant changes to individual and business tax provisions in the Internal Revenue Code. It was this administration’s first attempt at tax reform and should make a tangible difference in the tax liabilities of most taxpayers. The Act itself is 185 pages long, so there is no way to summarize all the terms of the Act in this article. Instead, this article will give you a brief overview of a few business tax provisions of the Act with the hope that you can utilize it to lower your overall tax liability.

The Act reduces the highest personal income tax rate from 39.6% to 37% and reduces most of the lower tax brackets as well, so that almost everyone benefits from a lower tax rate.2 Unfortunately, these lower tax rates only apply through December 31, 2025, and in 2026 the rates revert back to the 2017 tax brackets. The corporate income tax rate was reduced from a maximum of 35% to 21%, which is a significant reduction and has caused many advisors to reconsider whether a C corporation might be more advantageous in certain tax situations.

The biggest change, in the author’s opinion, is that the Act implements a new 20% deduction for all “qualified business income” of a non-corporate taxpayer. Qualified business income, or QBI, generally means the income from a U.S.-sourced trade or business that is includable in taxable income for the year. There are certain exclusions from QBI, which generally include: (1) short- or long-term capital gain or loss, dividends, interest, commodities, foreign currency, and nonbusiness annuities, (2) guaranteed payments paid to a partner for services rendered to the partnership, (3) payments made to a partner for services rendered but not as a partner in the partnership, and (4) reasonable compensation paid to the taxpayer (think wages paid to a shareholder in an S corporation). Essentially, the Act is providing a 20% deduction for flow-through income that is not treated as wages to a shareholder or guaranteed payments to a partner.

Lawyers and other specified service providers3 are limited in the amount of the 20% QBI deduction they are eligible to claim. The Act provides that specified service providers can only take full advantage of the deduction if the specified service provider earns less than $315,000 in taxable income when his/her filing status is married filing jointly or $157,500 in taxable income when his/her filing status is single, head of household or married filing separately. As an example, assume a married attorney earns $315,000 in taxable income (that is also QBI) from her law practice and her spouse has no income. Assuming no other deductions, the married attorney would be able to take a deduction of 20% of the $315,000, which equals $63,000, which reduces their household taxable income from $315,000 to $252,000 and, assuming a tax rate of 24%, saves the couple $15,120 in taxes in just their first year!

If the attorney is single and has $157,500 of QBI, the deduction would be $7,560!4

This amazing deduction assumes one basic tenant – that all the income paid to the attorney, who is a partner in a law firm, can be classified as QBI and is not disqualified from QBI treatment because the income is characterized as a guaranteed payment. Historically, guaranteed payments were not disfavored among tax preparers because it

June 2018

was an easy way to ensure the taxable income of the partnership followed the money paid out to the partners during the tax year. If guaranteed payments are not used, then the default rule under the partnership tax regulations requires that the partners receive distributions equal to their ownership percentage in the partnership. Although this works in some situations, often partners have agreed among themselves that certain partners should earn different amounts based on different levels of services provided by the partners to the partnership. Alternatively, the partners may, as some law partnerships do, operate in an “eat-what-youkill” structure where the ownership does not determine the compensation but is based more on the income brought in by each attorney. In these situations, the accountant will often use guaranteed payments so that each partner is properly taxed on the income he/she receives.

Every partner needs to take a look at the Schedule K-1 he/ she received and look at Part III, Box 4 to see how much of his/her business income was treated as guaranteed payments. Unfortunately, the author’s assumption is that most income has historically been treated as guaranteed payments which means all of the income is currently ineligible for the QBI deduction. If nothing is done to fix this, you may be giving the IRS $15,000 more than you need to, all because of how your accountant characterizes the income you receive.

You may want to meet with your accountant and discuss how your firm can change your tax reporting to ensure that the partners are setup to receive as much income as possible through distributions instead of guaranteed payments. This could require an amendment to your partnership or operating agreement to provide for minimum guaranteed payments with the remaining income to follow ownership in the partnership or limited liability company. Complicated compensation structures may require the use of special allocations and priority distributions (that comply with the applicable Treasury Regulations) to ensure that the distributions are not classified as guaranteed payments.

Lawyers that operate as sole proprietors do not have to worry about limitations of guaranteed payments or reasonable compensation. Thus, they are best suited to take advantage of the QBI deduction compared to partners in a partnership or S corporation shareholders.

Although this article is far from exhaustive, it highlights some important issues to help reduce your and your clients’ tax burdens this year.5 Formally known as “An Act to provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for fiscal year 2018” after Senate guidelines required the name to be changed from the Tax Cuts and Jobs Act. It was enacted as Public Law No. 115-97.

It will be referenced throughout this article as the “Tax Reform Act” or simply as the “Act.” 2 Act § 11001(a).

3 The Act defines a taxpayer engaged in a “specified service trade or business” as anyone in the fields of health, law, actuarial science, performing arts, consulting, athletics, financials services, brokerage services and consulting. Code § 199(e)(3).

4 Please keep in mind that due to length restrictions, the author does not have the time to discuss the phaseouts applicable to each taxpayer and the relevant limits that are imposed based on taxable income, QBI income or W-2 wages under the Act. 5 For more information on how the Act affects estate planning, see Dan W. Holbrook & Bradley C. Sagraves, “Top 10 Effects of the Tax Reform Act on Estate Planning,” 54 TENN. B.J. 28 (April 2018).

1

DICTA

13

Lexis Advance

®

CURRENT CRITICAL CREDIBLE DIG DEEPER AND REACH FURTHER

WITH VETTED AND TRUSTED SOURCES GIVING YOU THE BEST INFORMATION TO WORK FROM

Interested? Contact your LexisNexis Representative for more information N E I L BA I LE Y N E I L . BA I L E Y@ L E X I S N E X I S . CO M 9 3 7. 3 29.1 524 LexisNexis, Lexis Advance, Lexis and the Knowledge Burst logo are registered trademarks of RELX Inc. Westlaw is a registered trademark of West Publishing Corporation. © 2018 LexisNexis. LNL01116-0 0418

14

DICTA

June 2018

HELLO MY NAME IS

. . .

M O L LY S I M B E C K

By: Katheryn M. Ogle McDonald, Levy & Taylor, PLLC

For most attorneys, routines are essential to success. Whether it’s checking your email as soon as you begin working in the morning, or ensuring your desk is clear before heading home from the office, we all have some semblance of this type of structure in our lives. For recently admitted member of the bar, Molly Simbeck, her weekly routine involves a few hours each Sunday afternoon preparing her meals for the week.

“I’m a serial meal-prepper,” she laughs. One of Molly’s “go-to” dishes is turkey tacos, which happen to be her husband’s favorite, but she also tries to add a variety in the mix. She noted that it’s much easier to plan meals on Sunday afternoons, rather than waiting until it’s time to make dinner each evening.

When she isn’t plotting her family’s weekly meals, Molly works as an insurance defense attorney at Trammel, Adkins & Ward, P.C. She joined the firm as an Associate in October 2017 after serving as a clerk during her second and third years of law school.

Currently, her practice focuses on representing insureds and insurance companies in a wide variety of litigation, including defense litigation involving automobile accidents, homeowners’ claims, fire and casualty, premises liability, general liability, and insurance coverage and bad faith litigation. She hopes to also include employment law as part of her practice in the future.

In addition to this clerkship during law school, Molly served as an Articles Editor for the Tennessee Law Review and an Editor for

June 2018

The Forum, and graduated with honors in 2017. She also found time during all three years of law school to volunteer as a Student Ambassador.

A graduate of The University of Tennessee- Chattanooga, Molly majored in Business Administration, and after completing her undergraduate studies in 2014, began her law school career that same fall. While she was unsure until the end of her college education that she wanted to pursue a career in law, she notes that there are some aspects of her degree that have been useful in her chosen professional field. “I had a few classes that centered on marketing and human behavior,” she explains, “I definitely use the skills I gained in observing people and their reactions during interviews and depositions.”

A native of Athens, Tennessee, Molly is very active in her church, which is pastored by her father-in-law, and she manages to fit in a boot camp workout class a few times each week. She not only exercises in boot camp workouts, but plays in a recreational soccer league, although she does note that her speed on the field has slowed somewhat since her high school days. Molly is also an avid sports fan, and like the true Tennesseean she is, loves to cheer on the Vols.

She also finds time to support her high school alma mater, the McMinn County Cherokees, where her husband Nathan is a teacher and assistant football coach. She and her husband live in Knoxville, and share their home with two dogs, Maddox and Maggie.

DICTA

15

DECRIMINALIZING MEDICINAL MARIJUANA IN TENNESSEE

Today, forty-six states and the District of Columbia have decriminalized medicinal marijuana to some extent.1 Thirty of these states have enacted comprehensive medical marijuana laws that provide access to medical marijuana through dispensaries or home cultivation.2 Sixteen states, including Tennessee, however, strictly limit the acceptable use of medical marijuana to low tetrahydrocannabinol (“THC”), high cannabidiol oil (“CBD”) products for certain medical situations.3 As states across the nation push for the expansion of marijuana laws, Tennessee is no exception.

Tennessee law provides that the simple possession of marijuana is punishable as a Class A misdemeanor, whereby the maximum sentence is not greater than eleven months and twenty-nine days.4 This conviction carries a mandatory minimum fine of $2505 and a maximum fine of $2,500.6 Further, the knowing manufacture, delivering, selling or possession with the intent to manufacture, deliver or sell marijuana is punishable as a felony.7 Although there is a minimum fine of $2,000 for a first felony drug conviction,8 the maximum fine and sentence range depend on the particular felony class and the individual’s criminal history.

Tennessee law also contains provisions for sentence enhancement and mandatory minimum sentences if the felony conviction occurs within a “drug-free zone.”9

Current Tennessee law, however, excludes two cannabis products from the definition of marijuana: (1) industrial hemp products containing less than .3% THC for all individuals;10 and (2) cannabidiol oil (“CBD”), containing less than .9% THC, for those individuals having proof of a “legal order or recommendation from the issuing state; and [p]roof that the person or the person’s immediate family member has been diagnosed with intractable seizures or epilepsy by a medical doctor or doctor of osteopathic medicine who is licensed to practice medicine in the state of Tennessee.”11 These low THC, high CBD cannabis products have significant positive medicinal qualities without the psychoactive effects.12

Expansion of the Use of Medical Marijuana in Tennessee

In January 2018, both the Tennessee House of Representatives and the Tennessee Senate introduced bills to greatly expand the use of medicinal marijuana in Tennessee.13 According to House Sponsor Jeremy Faison, if enacted, Tennessee’s Medical Cannabis Act (the “Act”), as originally filed, would be the most regulated medicinal marijuana legislation in the United States. The Act creates a Medical Cannabis Commission14 responsible for issuing “all licenses for the cultivation, processing, testing, transportation, sale and dispensing of medical cannabis.”15 The Act further facilitates the treatment of “qualifying patients” with “debilitating medical conditions,” including cancer, human immunodeficiency virus (“HIV”), acquired immunodeficiency syndrome (“AIDS”), Hepatitis C, amyotrophic lateral sclerosis (“ALS”),

16

post-traumatic stress disorder (“PTSD”), Alzheimer’s disease, severe arthritis, inflammatory bowel disease, multiple sclerosis, Parkinson’s disease, schizophrenia, and any chronic disease or condition that causes wasting syndrome, peripheral neuropathy, severe chronic pain, severe nausea, seizures, or severe or persistent muscle spasms.16 A qualifying patient must then obtain written certification of the debilitating medical condition diagnosis along with a practitioner’s opinion that the use of medical marijuana would treat or alleviate symptoms and submit an application to obtain a registry identification card.17 Possession of a valid registry identification card and strict compliance with the Act protects the qualifying patient or caregiver from criminal prosecution under the Tennessee Drug Control Act.18

In addition, the Act outlines the licensing procedures for medical cannabis establishments, establishes cultivation facilities and dispensary guidelines, and allocates taxes to be collected from medical cannabis products.19 Notably, the legislation increases the maximum THC concentration of medical marijuana products to twenty-five percent.20 The legislation also provides that the decision to permit the retail sale of medical cannabis products would be left up to the counties or municipalities by a majority vote.21 The legislation, however, does not permit the recreational use of marijuana22 or home cultivation.23

Representative Faison’s goal is to ensure the production of a predictable medical grade of cannabis product, providing practitioners guidance to effectively prescribe it to patients. Faison emphasizes that such regulation is necessary to prevent failure of marijuana’s medicinal purpose.

Failure to comply with the Medical Cannabis Act subjects persons to criminal penalties. For instance, obtaining or attempting to obtain a medical cannabis product by fraud or misrepresentation is a Class E felony.24 In addition, possession of medical cannabis products by a qualifying patient or designated caregiver in excess of the allowable amount is a crime punishable as a Class B misdemeanor.25

The House version of the bill passed the Criminal Justice Committee, but the Committee added amendments that stripped the original bill of several key provisions.26 Essentially, the amended bill decriminalized the possession of cannabis products in various forms27 for “debilitating medical conditions,”28 without providing a method to legally obtain cannabis products within the state. On April 3, 2018, Senator Steve Dickerson commented that “I fear that if we passed the water-down version of this bill, it would essentially forestall any efforts to have a much more widespread, much more thoughtful legislative construct for several years.”29 After withdrawing his support and ending the possibility of the passage of the Act this last session, Senator Dickerson referred the bill to the General Subcommittee of Senate Judiciary Committee for the summer but committed to supporting the enactment of the bill in its original form.30

DICTA

June 2018

COVER STORY By: Rebecca Vance Lee Assistant Public Defender, State of Tennessee Fourth Judicial District

The Federal Obstacle

Regardless of the proposed changes in Tennessee law, marijuana remains illegal under federal law.31 The federal Controlled Substances Act (“CSA”) classifies marijuana as a Schedule I drug,32 which denotes that marijuana “has a high potential for abuse,” “has no accepted medical use in treatment in the United States,” and has a “lack of accepted safety for use.”33 Moreover, the CSA expressly preempts any directly conflicting state law.34 There is no exception for medicinal marijuana.35 Thus, as states, including Tennessee, enact or repeal laws decriminalizing medicinal marijuana, citizens and visitors of the state cannot be guaranteed protection against federal prosecution.36 Indeed, this would be left to prosecutorial discretion.

However, in October 2009, Deputy Attorney General David W. Ogden advised United States Attorneys that they “should not focus federal resources in. . . [s]tates on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”37 Further, in 2014, Congress enacted an omnibus appropriations bill containing a rider prohibiting the Department of Justice from using funds to prevent certain states, including Tennessee, “from implementing their own [s]tate laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”38 While this legislation was initially seen as immunity for medical marijuana states,39 the Ninth Circuit concluded otherwise because Congress could restore funding within the applicable statute of limitations for prosecution.40 The court specifically warned: To be clear, [the Consolidated Appropriations Act] does not provide immunity from prosecution for federal marijuana offenses. The CSA prohibits the manufacture, distribution, and possession of marijuana. Anyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes (or attempts or conspires to do so) is committing a federal crime. The federal government can prosecute such offenses for up to five years after they occur.

Congress currently restricts the government from spending certain funds to prosecute certain individuals. But Congress could restore funding tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding. Moreover, a new president will be elected soon, and a new administration could shift enforcement priorities to place greater emphasis on prosecuting marijuana offenses.

The Rohrabacher –Farr/Rohrabacher –Blumenauer amendment has continually been renewed and will remain in effect until September 30, 2018, despite Attorney General Jeff Sessions’ memorandum for all United States Attorneys rescinding previous guidance provided by the Attorney General’s Office regarding marijuana enforcement.41 If the amendment is not renewed in September, the federal criminal exposure for Tennessee citizens possessing of using medical marijuana will be uncertain – at least until the Attorney General42 or Congress reclassifies marijuana as a drug with recognized medical benefits. Several bills have been introduced in Congress to reclassify marijuana or eliminate criminal penalties for marijuana-related activities authorized by state law, yet none have been successful.43 State Medical Marijuana Laws, National Conference of State Legislatures (Mar. 28, 2018) (available at http://www.ncsl.org/research/health/state-medical-marijuana-

1

June 2018

laws.aspx#Table%202).

Id. 3 Id. 4 Tenn. Code Ann. § 39-17-418.

5 Tenn. Code Ann. § 39-17-428.

6 Tenn. Code Ann. § 40-35-111.

7 Tenn. Code Ann. § 39-14-417 (providing punishment from Class E to Class C felony depending on the amount).

8 Tenn. Code Ann. § 39-17-428.

9 Tenn. Code Ann. § 39-17-432.

10 Tenn. Code Ann. § 39-26-102(4) (allowing for topical or ingestible consumer products).

11 Tenn. Code Ann. § 39-17-402(16)(A)(i)-(ii) (excluding this CBD from the definition of marijuana).

12 David Kohn, A Powerful New Form of Medical Marijuana, Without the High, WASH. POST (Dec. 31, 2016), https://www.washingtonpost.com/national/health-science/a-powerfulnew-form-of-medical-marijuana-without-the-high/2016/12/29/81bbf7c0-b5b2-11e6b8df-600bd9d38a02_story.html?utm_term=.75a0373ba4e5).

13 Medical Cannabis Act, H.R. 1749, 110th Gen. Assembly (2018); S.B.1710, 110th Gen. Assembly (2018).

14 Medical Cannabis Act, H.R. 1749, 110th Gen. Assembly (2018).

15 Medical Cannabis Act, H.R. 1749, 110th Gen. Assembly (2018) (proposed Tenn. Code Ann. § 68-7-410(b)(1)).

16 Medical Cannabis Act, H.R. 1749, 110th Gen. Assembly (2018) (proposed Tenn. Code Ann. § 68-7-102(10)).

17 Medical Cannabis Act, H.R. 1749, 110th Gen. Assembly (2018) (proposed Tenn. Code Ann. § 68-7-201).

18 Medical Cannabis Act, H.R. 1749, 110th Gen. Assembly (2018) (proposed Tenn. Code Ann. § 68-7-207).

19 Id. 20 Medical Cannabis Act, H.R. 1749, 110th Gen. Assembly (2018) (proposed Tenn. Code Ann. § 68-7-122).

21 Medical Cannabis Act, H.R. 1749, 110th Gen. Assembly (2018) (proposed Tenn. Code Ann. § 68-7-106).

22 Medical Cannabis Act, H.R. 1749, 110th Gen. Assembly (2018) (proposed Tenn. Code Ann. § 68-7-202(20)(A)).

23 Medical Cannabis Act, H.R. 1749, 110th Gen. Assembly (2018) (proposed Tenn. Code Ann. § 68-7-122 24 Medical Cannabis Act, H.R. 1749, 110th Gen. Assembly (2018) (proposed Tenn. Code Ann. § 68-7-304).

25 Medical Cannabis Act, H.R. 1749, 110th Gen. Assembly (2018) (proposed Tenn. Code Ann. § 68-7-303).

26 Medical Cannabis Act, H.R. 1749, 110th Gen. Assembly (2018), Amend. No. 1.

27 Id. (permitting various forms of cannabis products, including ointment, lotion, transdermal patch, suppository, nasal spray, tincture, oil, or capsule).

28 Id. (adding sickle-cell anemia as a “debilitating medical condition”).

29 Medical Cannabis Act, S.B. 1710, Before the S. Judiciary, 110th Gen. Assembly (2018) (statement of Steve Dickerson, Senator).

30 Id. 31 The Controlled Substances Act (“CSA”), 21 U.S.C. §§ 801-904 (2012).

32 21 U.S.C. § 812(c)(c)(10).

33 21 U.S.C. § 812(b)(1)(A)-(C) (emphasis added).

34 21 U.S.C. § 903.

35 21 U.S.C. § 812(c)(c)(10); see also Gonzales v. Raich, 545 U.S. 1, 26 (2005) (“The CSA designates marijuana as contraband for any purpose[.]”).

36 U.S. Const. art. VI, cl. 2.

37 David W. Ogden, Deputy Att’y Gen., Memorandum for Selected United States Attorneys: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana (Oct. 19, 2009) (available at https://www.justice.gov/archives/opa/blog/memorandumselected-united-state-attorneys-investigations-and-prosecutions-states).

38 “Rohrabacher–Farr Amendment,” Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113–235 § 538, 128 Stat. 2130, 2217 (2014).

39 Evan Halper, Congress Quietly Ends Federal Government’s Ban on Medical Marijuana, L.A. TIMES (Dec. 16, 2014), http://www.latimes.com/nation/la-na-medical-pot20141216-story.html.

40 United States v. McIntosh, 833 F.3d 1163, 1179 n.5 (9th Cir. 2016) (citation omitted).

41 Jefferson B. Sessions, III, Att’y Gen., Memorandum for All United States Attorneys: Marijuana Enforcement (Jan. 4, 2018) (available at https://www.justice.gov/opa/ press-release/file/1022196/download) (advising prosecutors to “weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community”).

42 Gonzales, 545 U.S. at 14-15 (citing 21 U.S.C. § 811) (recognizing that the CSA, by its own terms, authorizes the Attorney General to reclassify drugs after consultation with the Secretary of Health and Human Services).

43 E.g., Marijuana Revenue and Regulation Act, S.776, 115th Cong. (2017); Regulate Marijuana Like Alcohol Act, H.R. 1841, 115th Cong. (2017); Responsibility Addressing the Marijuana Policy Gap Act of 2017, S.780, 115th Cong. (2017); Marijuana Justice Act of 2018, H.R. 4815, 115th Cong. (2018); Ending Federal Marijuana Prohibition Act of 2017, H.R. 1227, 115th Cong. (2017).

2

DICTA

17

OF LOCAL LORE & LAWYERS By: Joe Jarret Attorney At Law, University of Tennessee

“MADAM SHERIFF, ARREST THOSE MEN!” THE LIFE AND TIMES OF LILLIE LADD MAUSER: TENNESSEE’S FIRST FEMALE SHERIFF

When many people reflect on the name Lillie Ladd Mauser, they’re inclined to identify her as the grandmother of the late Senator Howard Baker and look no further. That would be a mistake. True, Lillie Mauser took great pride in the fact that, when Senator Baker’s mother died, she moved to Huntsville to take care of young Howard, which came as no surprise to those who knew her. Even as a young girl, she was recognized for her spirit and courage. Once, her mother said to her, “Go saddle up your horse, go to Kingston and pay the taxes.” Years later, when asked how she responded to her mother’s directive, Lillie said, “I got on that horse and had to go across the Clinch River. Well, the ferry boat took me across, but when I came back the ferry wasn’t there. I was on a side saddle and just let the horse swim across. That didn’t worry me in the least. I was just a girl having a good time!”1 Clearly, this was no mean feat, considering the fact that it occurred in19th Century Tennessee, a time when young girls were not supposed to be riding off on horseback unescorted.

A Sheriff is Born

When Lillie turned 18 in 1897, she married Chris Ladd, an Oliver Springs logging contractor. Mr. Ladd was ultimately elected Sheriff of Roane County. His tenure as sheriff was short-lived, however, when he was incapacitated by a bullet fired from a handgun in possession of an escaping convict. The Roane County Court appointed Lillie as Chris’ successor, making her Tennessee’s first female sheriff. And that’s when Lillie made national headlines. While accompanying her husband on a visit to a physician in Illinois, Lillie received a frantic phone call, informing her that a jail break had taken place in Kingston, with five inmates on the loose. She immediately boarded a train and returned to Kingston. In a 1979 interview, Lillie said “I had an idea where two of them might be and I got a young man I knew to drive me to where I figured they would be hiding out.” Locating the escapees, and armed with only a car horn, she recalled how she kept honking the horn and motioning for the escapees to come down from a hill where she could talk with them. Incredibly, she talked both of them into giving themselves up. Not only did they willingly return to the jail, but when two of their accomplices observed the spectacle, they joined in the parade. That left one escapee at large. Said Lillie, “I didn’t look for that fifth prisoner. I never saw him again and I hoped I never would. He was just an old man who was arrested for vagrancy and he had no business in jail.”2 Her beloved husband passed away in 1927.

Lillie earned the latter moniker when, encountering a would-be thief in the fraternity house, she took pistol in hand and chased the intruder out of the house. Her actions came as no surprise to the members of Lambda Chi. Said fraternity member Bill Buchanan, “She was as the name typifies, a mother to all the fraternity brothers.”3 When asked about her experience as housemother, Lillie replied, “Outside of raising my family, being house mother for Lambda Chi was the most enjoyable experience of my life.”4 Speaking to a reporter with the Knox News Sentinel as she approached her 101st birthday, Lillie said, “The boys keep in touch.

One is now vice president of DuPont.”5 Family friend C.L. Crabtree commented that Lillie “Loved the Lambda Chi boys as well as her own boys” and that her “warm, expressive personality endeared her to everyone she met.”6

Sunset Years

After spending several years as a house mother and a committeewoman for the Republican Party, Lillie, a widow for almost twenty years, married Rhinehart Mauser, a Southern Railway machinist.

When asked about the marriage, Lillie in her indomitable style said, “He is a Democrat and a Methodist, I’m a Republican and a Baptist. I will go to his church but I will never change my politics!”7 Lillie and Rhinehart spend the next nine years traveling the country by rail. Lillie passed on April 20, 1981 at the age of 101, surrounded by her loving family. She was, indeed, a woman ahead of her time.

The Knoxville Journal, July 9, 1980, page 8.

The Knoxville Journal, July 8, 1979, page11.

3 University of Tennessee Beacon, April 11, 1981, archives, http://www.utdailybeacon.com/ 4 Id. 5 Knox News-Sentinel, July 9, 1980, Page A-11.

6 University of Tennessee Beacon, April 11, 1981, archives, http://www.utdailybeacon.com/ 7 The Knoxville Journal, July 8, 1979, page12.

1 2

Pistol Packin’ Mama

Once her Sheriff ’s days were behind her, Lillie kept busy raising her family, and ultimately became the first housemother of the Lambda Chi Fraternity at the University of Tennessee. Although Lillie was known officially and affectionately as ‘Mother Ladd’ during her tenure at Lambda Chi, she was unofficially known as a ‘Pistol Packin’ Mama.’

18

Wells Fargo Advisors is a trade name used by Wells Fargo Clearing Services, LLC, Member SIPC, a registered broker-dealer and non-bank affiliate of Wells Fargo & Company. ©2011, 2013, 2016 Wells Fargo Clearing Services, LLC. All rights reserved.

DICTA

74127-v4 A1695

A Woman of Action

0117-00690

June 2018

O F T H E R M O M E T E R S A N D T H E R M O S TAT S By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.

DANGEROUS UNSELFISHNESS

It was cold and rainy that day, but Memphis in February is usually cold and rainy.

It was a fairly normal workday for Robert Walker, Jr., Echol Cole, Elester Gregory, and Willie Crain. They spent the day driving their garbage truck from house to house picking up bags of household waste and keeping the city of Memphis clean.1

But, it was cold and rainy, and so, rather than riding on the outside of the truck, Robert and Echol took refuge inside the barrel of the truck, with the garbage, so they could at least keep dry while they drove from house to house.2 As dirty and smelly as that sounds, there really were not other options. At the time, the city had a policy that prohibited workers from stopping in residential neighborhoods to take shelter in inclement weather.3 Apparently people complained about the black workers holding, “unsightly ‘picnics.’”4

The truck was old – very old. Workers had complained and even asked that they not be required to use it. They had to jump-start the motor every morning, and they had already replaced the motor that operated the trash compactor.5 But, they got in that truck each and every day, getting paid $1.75 an hour ($12.67 in 2018 dollars), which at the time, meant they weren’t eligible for workers’ comp.6

Willie was driving the truck with Elester in the cab. This meant Robert and Echol had a choice: they could hang onto the side of the truck in the pouring rain, or they could stand in the barrel of the truck with the garbage. They picked the second option, and they were standing in the back when something happened. No one knows why, but the hydraulic compactor started to move, and before Willie could stop the truck to hit the emergency shut off in the back, the relentless machine had crushed them to death.7

Both men had wives and children. Robert’s wife, Verline, and their five (5) children received Robert’s two final paychecks totaling $200.8 The city also agreed to pay $500 for the funeral expenses of each.9

Their coworkers had enough. Robert’s life was worth more than $700. Echol’s life was worth more than $700. The sanitation workers had been demanding higher wages and better working conditions for awhile with no progress. A few days after the funeral services, the workers began what is now known as the Memphis Sanitation Workers’ Strike of ’68.10

Dr. Martin Luther King Jr. joined them in March, and on April 3, 1968, Dr. King stood before a crowd of thousands and gave what no one realized at the time would be his final speech. By evening on the next day, Dr. King would join Robert, Echol, and the other casualties of the civil rights movement.11

But, for Dr. King, April 3, 1968, was not a time to be concerned about personal comfort or safety, and he was very clear about that in what is now known as the I’ve Been to the Mountaintop speech. Its most quoted excerpt is at the end: Like anybody, I would like to live a long life. Longevity has its place. But I’m not concerned about that now. I just want to do God’s will. And He’s allowed me to go up to the mountain.

And I’ve looked over. And I’ve seen the Promised Land. I may not get there with you. But I want you to know tonight, that we, as a people, will get to the promised land!12

June 2018

This excerpt is famous largely because it is so prophetic in light of the assassination of Dr. King the next day. However, it comes at the end of a lengthy segment about something which Dr. King called “dangerous unselfishness.”13 Dangerous unselfishness is a way of thinking about other people who are different from us, whether they are a different race, from a different origin, have a different socio-economic status, or have a different perspective or set of beliefs.

According to Dr. King most people ask this question about the people around them: “If I stop to help this man, what will happen to me?” It focuses on all of the reasons not to take action. Dr. King listed a few: “I am too busy”; “it would be awkward”; “maybe we should get a committee to look into that.” In Dr. King’s mind, all of these reasons stemmed from a fear of the danger of getting involved. That fear asks the question, “If I stop to help this man, what will happen to me?” That is the wrong question.14

The right question is, “If I do not stop to help this man, what will happen to him?”15 That question focuses on the well-being of the other person. The answer requires the kind of dangerous unselfishness that recognizes the risk in the unfamiliar, but still takes action.

In the legal profession, we often talk about increasing diversity within our firms and our Bar Association. But, we may not realize that the word, “diversity” comes from the Old French word diversite which is derived from the Latin divertere meaning to “turn aside.”16 The idea is that we actively turn aside from what is familiar and safe to embrace what is unfamiliar and perhaps risky. That is the kind of “dangerous unselfishness” that separates the thermostats from the thermometers.

1 Kevin McKenzie, Sanford: Deaths of Cole, Walker set ’68 Strike in Motion, COMMERCIAL APPEAL (Feb. 1, 2018), available at https://www.commercialappeal.com/story/ opinion/columnists/otis-sanford/2018/02/01/deaths-cole-echol-set-68-strikemotion/1081984001/.

2 Id. 3 Wendi C. Thomas, Memphis had Another Shameful Tragedy in 1968. It could have been Avoided, MKL50, https://mlk50.com/memphis-had-another-shameful-tragedy-in-1968-itcould-have-been-avoided-ef828f0f5091b, last visited May 10, 2018.

4 Id., quoting Taylor Branch, At Canaan’s Edge.

5 Id. 6 City of Memphis, Comparing 1968 Sanitation Workers’ Conditions to Today, https:// memphistn.gov/news/what_s_new/comparing_1968_sanitation_workers__conditions_ to_t, last visited May 10, 2018.

7 Kirsten West Savali, 1300 Men: Memphis Strike ’68, https://www.theroot.com/watch-thetragic-deaths-of-robert-walker-and-echol-col-1822619781, last visited May 10, 2018.8 Otis Sanford, Sanford: Deaths of Cole, Walker set ’68 Strike in Motion, Commercial Appeal (Feb. 5, 2018), available at https://www.commercialappeal.com/story/opinion/columnists/ otis-sanford/2018/02/01/deaths-cole-echol-set-68-strike-motion/1081984001/.

9 Thomas, supra.

10 Id. 11 Stanford, Memphis Sanitation Workers’ Strike, https://kinginstitute.stanford.edu/ encyclopedia/memphis-sanitation-workers-strike.

12 Dr. Martin Luther King, Jr., I’ve Been to the Mountaintop, transcript available at American Rhetoric, Top 100 Speeches, http://www.americanrhetoric.com/speeches/ mlkivebeentothemountaintop.htm.

13 Id. 14 Id. 15 Id. 16 Online Etymology, Diversity, https://www.etymonline.com/word/diversity, last visited May 10, 2018.

DICTA

19

SCHOOLED IN ETHICS By: By Judy M. UT College of Law

Cornett

SUPREME COURT REJECTS PROPOSED ETHICS RULE FORBIDDING DISCRIMINATORY CONDUCT

Have you heard a lawyer make a racist or sexist joke at a CLE presentation or bar association function? If so, you might have wondered whether the lawyer has violated Tennessee’s Rules of Professional Conduct. Rule 8.4(d) currently provides: “It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.” Comment [3] provides: A lawyer who, in the course of representing a client, knowingly manifests, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation, or socio-economic status violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d).

Thus, the lawyer who makes a racist or sexist joke at a CLE program or bar association function has probably not violated Rule 8.4(d) because the joke was not made “in the course of representing a client” and is probably not “prejudicial to the administration of justice.” One effort to broaden Tennessee’s rules to prohibit such speech has just failed.

On April 23, 2018, the Tennessee Supreme Court rejected a joint petition by the Tennessee Bar Association and the Board of Professional Responsibility to add Rule 8.4(g) to the Tennessee Rules of Professional Conduct: It is professional misconduct for a lawyer to: .... (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law.

This paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with RPC 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

Identical to Model Rule 8.4(g) as adopted by the ABA in 2016, the proposed Tennessee rule also incorporated verbatim the following comments to Model Rule 8.4(g): [3] Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature.

The substantive law of anti-discrimination and anti-harassment statutes and case law may guide application of paragraph (g).

20

[4] Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.

Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations. (Emphasis added).

The reference to “verbal conduct” in Comment [3] indicates that, despite the wording of the rule itself, the rule is intended to reach pure speech. The comment’s definition of sexual harassment shows the breadth of the conduct regulated by the Rule, which seems particular salient in light of the #MeToo movement. The reference in Comment [4] to “participat[ion] in bar association, business, or social activities in connection with the practice of law” shows that the rule was intended to regulate conduct beyond the courtroom.

To clarify the scope and impact of the proposed rule, the Tennessee version added three unique comments. First, added to Comment [4] was the following: “Legitimate advocacy protected by Section (g) includes advocacy in any conduct related to the practice of the law, including circumstances where a lawyer is not representing a client and outside traditional settings where a lawyer acts as an advocate, such as litigation.”

Second, a new Comment [4a] was added: [4a] Section (g) does not restrict any speech or conduct not related to the practice of law, including speech or conduct protected by the First Amendment. Thus, a lawyer’s speech or conduct unrelated to the practice of law cannot violate this Section.

Finally, a disclaimer regarding “socioeconomic status” discrimination was added: “Nevertheless, a lawyer does not engage in conduct that harasses or discriminates based on socio-economic status merely by charging and collecting reasonable fees and expenses for a representation.”

This proposal was just the latest in a series of efforts to prohibit lawyer conduct reflecting discrimination and bias. In October 2000, the Report of the Tennessee Supreme Court’s Committee to Implement the Recommendations of the Racial and Ethnic Fairness Commission and the Gender Fairness Commission recommended that the Court amend Rule 8.4(d) to add language that eventually ended up in Comment [3] to that Rule.

Later, in 2013, the Board of Professional Responsibility filed a petition with the Court to move the anti-bias language from Comment [3] into the text of Rule 8.4 and to broaden application of the Rule by substituting “in a professional capacity” for “in the course of representing a client.” After receiving more than 300 public comments – none of them favorable – the Court denied the Board’s petition on May 10, 2013.

DICTA

June 2018

The latest proposed Rule garnered many comments – 400 pages’ worth – primarily from opponents. Although the Supreme Court did not give any reason for its rejection of the proposed rule, one comment, from Attorney General Herbert Slattery, may have been pivotal in the Court’s decision.

In a strongly worded 12-page letter, the Attorney General opined that the proposed rule would “infringe on Tennessee attorneys’ rights to free speech, freedom of association, free exercise of religion, and due process” under both the federal and state constitutions, and would “conflict with the Rules of Professional Conduct.” Three aspects of the proposed rule rendered it too broad, in the Attorney General’s opinion.

First, because the rule applies to “conduct related to the practice of law,” the rule would regulate “a presentation at a CLE event, participation in a debate at an event sponsored by a law-related organization, the publication of a law review article, and even a casual remark at dinner with law firm colleagues.” Second, the sexual harassment provision would prohibit conduct even if it “does not result in any tangible adverse consequences and is not sufficiently severe or pervasive to create a hostile environment.” Additionally, the bases of prohibited discrimination include categories not protected by state or federal law – “sexual orientation, gender identity, marital status, [and] socioeconomic status.”

Finally, the Rule outlaws not only conduct that the lawyer “knows” to be discriminatory, but also conduct that the lawyer “reasonably should know” is discriminatory. According to the Attorney General, this language would subject a lawyer to discipline “for uttering a statement that was not actually known to be or intended as harassing or discriminatory, simply because someone might construe it that way.”

What can we conclude from this third failure to include a nondiscrimination provision in the text of Tennessee’s Rules of Professional Conduct? Leaving the text of Rule 8.4 unchanged means that Comment [3] is the only current statement in the Rules regarding discrimination by lawyers. The Comment reaches only speech or conduct undertaken “in the course of representing a client” and only if it is “prejudicial to the administration of justice.” It does not reach speech or conduct occurring in the lawyer’s office or at professional events unrelated to the representation of a client. The breadth of the proposed Rule may account for the fact that only one state, Vermont, has adopted it verbatim since its adoption by the ABA.2 However, the Court’s reluctance to regulate lawyer speech or conduct outside the confines of the attorneyclient relationship does not mean that lawyers will not be disciplined in appropriate cases.3 Tennessee lawyers should take the language in Rule 8.4 comment [3] seriously and should refrain from biased and discriminatory speech and conduct in the course of representing a client, unless justified by “legitimate advocacy.”

1 Letter from Herbert H. Slattery III to Hon. Jeffrey S. Bivins, et al. at 5, 11 (Mar. 16, 2018) (capitalization altered).

2 Mindy Rattan, Tennessee Again Rejects Anti-Discrimination Ethics Rule, ABA/BNA LAWYERS’ MANUAL ON PROFESSIONAL CONDUCT (May 1, 2018).

3 For example, there have been several such cases in Indiana, whose Rule 8.4 contains language similar to Tennessee’s Comment [3]. See In re Thomsen, 837 N.W.2d 1011 (Ind. 2005) (attorney disciplined for referring to litigant’s paramour as “the black man”); In re McCarthy, 938 N.W.2d 698 (Ind. 2010) (mem.) (attorney disciplined for sending email to his adversary’s secretary stating “I am neither you [sic] nor his n----.”); In re Kelley, 925 N.W.2d 1279 (Ind. 2010) (mem.) (attorney disciplined for “gratuitously” asking a male caller with a feminine-sounding voice whether he was “gay” or “sweet”).

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

Address Changes

Please note the following changes in your KBA Attorneys’ Directory and other office records: Jennifer Dobbins Winchester, Sellers, Lipsey, Morrison, Waller & Lipsey, P.C. BPR #: 035114 1430 Island Home Ave. Knoxville, TN 37920-1811 Ph: (865) 546-6321 JDobbins@lmwl.law Anna F. Hinds Owings, Wilson & Coleman BPR #: 000424 800 Riverview Tower, 900 S. Gay St. Knoxville, TN 37902-1800 Ph: (865) 522-2717 ahinds@owclaw.com Maurice W. Gerard Lipsey, Morrison, Waller & Lipsey, P.C. BPR #: 006975 1430 Island Home Ave. Knoxville, TN 37920-1811 Ph: (865) 546-6321 Jason E. Legg Kennerly, Montgomery & Finley, P.C. BPR #: 018765 550 Main St., Suite 400 Knoxville, TN 37902-2567 Ph: (865) 546-7311 jlegg@kmfpc.com

June 2018

S. David Lipsey, Jr. Lipsey, Morrison, Waller & Lipsey, P.C. BPR #: 027380 1430 Island Home Ave. Knoxville, TN 37920-1811 Ph: (865) 546-6321

Eric J. Morrison Lipsey, Morrison, Waller & Lipsey, P.C. BPR #: 012731 1430 Island Home Ave. Knoxville, TN 37920-1811 Ph: (865) 546-6321

Steven D. Lipsey Lipsey, Morrison, Waller & Lipsey, P.C. BPR #: 007226 1430 Island Home Ave. Knoxville, TN 37920-1811 Ph: (865) 546-6321

James R. Owen Owen Law Firm BPR #: 018834 550 W. Main Street, Suite 950 Knoxville, TN 37902-2536 Ph: (865) 440-6345 james.knoxdwi@gmail.com

Summer H. McMillan Tennessee Supreme Court BPR #: 020296 505 Main St., Suite 200 Knoxville, TN 37902-2556 Ph: (865) 594-5324 summer.mcmillan@tncourts.gov Nathaniel D. Moore Kramer Rayson LLP BPR #: 031520 800 S. Gay Street, Suite 2500 Knoxville, TN 37929-9702 Ph: (865) 525-5134 nmoore@kramer-rayson.com

DICTA

Russ Swafford U.S. District Court - Chattanooga BPR #: 034803 900 Georgia Ave. Chattanooga, TN 37402-2230 Ph: (423) 715-2679 Charles D. Waller Lipsey, Morrison, Waller & Lipsey, P.C. BPR #: 026645 1430 Island Home Ave. Knoxville, TN 37920-1811 Ph: (865) 546-6321

21

22

DICTA

June 2018

barrister bullets MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of every month at the Bistro by the Bijou (807 South Gay Street). Social time begins at 5:00 p.m., and the meeting begins promptly at 5:15 p.m. The next meeting will be held on June 13, 2018. There are many opportunities to get involved, so please contact Barristers President Mitchell Panter (tmp@painebickers.com) or Vice President Mikel Towe (mtowe@lewisthomason.com) for more information.

ACCESS TO JUSTICE The next Veterans Legal Clinic is scheduled for noon on June 13, 2018, at the Knox County Public Defenders’ Community Law Office from 12:00 p.m. to 2:00 p.m. If you are interested in signing up for the Veterans Clinic, you can do so on www.knoxbar.org (click on CLE & Events, All Events, Upcoming Legal Clinics).

ATHLETICS The Barristers Athletic Committee hosted the 1st Annual “Bowlable Hours” Bowling Night on April 19, 2018 at Main Event. Over 20 attorneys, law students and friends gathered for a fun night of bowling and networking. A huge congratulations to our “Highest Score” winner, Kenneth W. Ward and our “Most Strikes in a Row” winner, Molly A. Simbeck. The Barristers Athletic Committee hopes to continue this event next year.

The 2018 Lawyer Link Up Charity Golf Tournament will be held on Monday, October 22, 2018 at Holston Hills Country Club. We are now accepting individual and team reservations. Act fast if you are interested in participating this year, we usually sell out quickly. Please visit www. knoxbar.org for all the details and to sign up today! If you or someone you know is interested in sponsoring, please contact the Athletics Committee co-chairs, Bryce Fitzgerald (bfitzgerald@kramer-rayson.com) or Jeremey Goolsby (jgoolsby@londonamburn.com).

HUNGER & POVERTY The Hunger and Poverty Relief Committee would like to thank everyone who donated to the Professional Clothing Drive in April! We collected hundreds of items that were donated to career closets at the YWCA and Connect Ministries and to KARM. Additional thanks to the many volunteers who picked up donation boxes, sorted clothes, and delivered items to our recipients!

LAW WEEK The Law and Liberty Award was presented to Kathryn St. Clair Ellis at the Law Day Luncheon on May 3 for her work with the Legal Aid of East Tennessee.

MEMBERSHIP Please join us for the Barristers and KBA Happy/Social Hour on June 21, 2018 from 5:00-7:00 p.m. at the Pretentious Beer Company, located at 131 S. Central. Pretentious Beer Company is a great local brewery with great beer. Come out, have a drink and socialize with your friends and colleagues! Register at www.knoxbar.org by clicking June 21st in the Event Calendar.

Please save the date for the Barristers Summer Party which will be held on July 13, 2018, at the Candoro Marble Arts and Heritage Center located at 4450 Candora Ave, Knoxville, TN 37920. Built in 1923, the Candoro Arts and Heritage Center’s main building is the former showroom and office of the Candoro Marble Works, a historic East Tennessee company that was at one time the largest producer of Tennessee pink marble in the U.S. The Summer Party is the Barrister’s premier party for the year. This year’s is sure to be a great time. Please encourage all Barristers and law clerks to join us on July 13!

VOLUNTEER BREAKFAST The Volunteer Breakfast Committee would like to thank the firm of Woolf, McClane, Bright, Allen & Carpenter, PLLC for sponsoring the April breakfast and for kindly sending Aaron Spencer and the folks at Woolf, McClane, Bright, Allen & Carpenter, PLLC who volunteered and helped serve breakfast. The Volunteer Breakfast is a Barristers’ project. On the fourth Thursday each month at 6:15 a.m., the Barristers’ and their volunteers serve breakfast to individuals participating in the services of the Volunteer Ministry Center.

If you are interested in sponsoring a breakfast or volunteering to prepare and serve breakfast, please contact Paul E. Wehmeier at pwehmeier@adhknox.com, Matthew Knable at knablelaw@gmail.com, or sign up at http://www.knoxbar.org/KBA-News/help-volunteer-ministries.

June 2018

DICTA

23

LIFE AND LAW IN HARMONY By: Leslie L. Beale, JD Executive and Developmental Coach Profusion Strategies

HOW DO YOU FEEL ABOUT BEING BUSY?

We all know the feeling – the one that starts when the alarm goes off in the morning and doesn’t stop until we close our eyes at night. The gnawing, gut-wrenching feeling that no matter how hard we try, we’ll never get it done. No matter how efficiently we work, we’ll never actually feel like we can rest. For many of us, it’s even come to define who and how we are.

In reality, however, most of us are more productive when we allow adequate time for rest, sleep, and exercise. In fact, numerous studies have supported that sleeping longer at night, or even taking a short nap during the day, can boost productivity. Put simply, you can perform more efficiently and make better decisions when you are not stretched to your limits.

It Means We’re Successful

Hey, how’re you doing?

I’m good – just sooo busy.

Busy. We complain about it constantly, and yet wear it like a badge of honor. We skip lunches and vacations, skimp on sleep and exercise, and lose contact with our friends – all in the name of being busy.

Through my work with lawyers and other professionals, I’ve come to believe that the vast majority of us are missing the mark significantly when it comes to the way we think about busyness. Our lives are fastpaced and we all wear many different hats in the course of the day. Our phones and computers buzz and beep and ping with all the demands for our time and attention. But ask us to find more reasonable ways to deal with them and many of us will adamantly refuse. “I can’t – what if I miss something important?”

We cling to the idea that busy gets us something, even though most of us instinctively know better. But why? What drives our obsession with being and feeling busy? What keeps us trapped on the hamster wheel we all claim to hate?

Busyness doesn’t just symbolize productivity– it also symbolizes success. If we are always busy, we seem to think people will assume our jobs are demanding and our business booming.

But busy doesn’t mean successful. In fact, some of the most successful people in the world have realized that their success is fueled by their times of rest and recreation. It is in these times of relaxation that they find their inspiration, feed their relationships, and build their stamina for their work.

As Henry David Thoreau once said, “It is not enough to be busy.

So are the ants. The question is: What are we busy about?” If your life has become a whirlwind of activity, and you find yourself feeling like a hamster trapped on a wheel, perhaps it’s time to ask yourself that very same question. What are you busy about? Does it create the results you want in your life? Does what you’re doing give you joy, or build toward the legacy you want to leave? If not, maybe it’s time to re-evaluate how you spend your time. After all, it’s the only resource that’s truly finite.

We Can’t Do Anything About It

Talk to the average professional about how busy they are and you are likely to get the idea that they have absolutely no power over their situation. It’s as if busy is a disease that we have all magically contracted somewhere along the way.

The truth is far different. Our jam-packed lives are not something that just happens to us – it is something we actively allow in our lives.

We continue to overcommit, overschedule and overwork no matter the consequences. Then, we refuse to take responsibility for these choices by blaming it on our profession, modern life, and all our electronic gadgets that have us hopping around the clock. The result is that we end up feeling trapped in our own lives.

But what if we made different choices? What if we were honest about our needs for rest, recreation, exercise and (gasp) idle time? What if we made intentional decisions about the things we allowed to take up our time, and how much time we were willing to give to them?

It Means We Are Getting Things Done

Too many of us confuse being or feeling busy with being or feeling productive. We believe that if we rush around, constantly moving, we are getting things done. Never mind whether those are the right things, or whether we are making the best use of our time. Busy equals productive, period.

24

DICTA

June 2018

WELL READ By: Campbell D. Cox Student, UT College of Law

THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS BY MICHELLE ALEXANDER

During my second year at the University of Tennessee College of Law I had the opportunity to take a class called “Wrongful Convictions” taught

by Professor Dwight Aarons. Before the class, I felt I had a relative understanding that there were some issues in the criminal justice system regarding people being wrongfully convicted, but this understanding was not concrete. My once abstract notions about these problems were solidified through readings and discussions during the semester about pitfalls in the system, as well as real stories of innocent people being convicted. This led me to pick up and read The New Jim Crow by Michelle Alexander.

Published in 2010, The New Jim Crow easily suffices as a crash course in Wrongful Convictions, but this book is much, much more than that. Michelle Alexander, an associate professor of law at Ohio State University, stresses to us that the problems facing the African American community have not disappeared with the election of Barack Obama. In fact, according to Alexander, they may have become even worse in this age of colorblindness. The New Jim Crow was important then, but it is even more important now.

As Michelle Alexander states in the preface to the book, “this book is not for everyone,” however, although The New Jim Crow is not for everyone, it is important for everyone. The New Jim Crow is a difficult book to read because it contains difficult facts to face, and therefore difficult questions to ask. Nevertheless, it is our duty as current and future attorneys to explore and consider difficult questions. Anyone reading this book needs to do so with an open mind and listen to Michelle Alexander’s entire argument before rendering a judgement.

Although I did not agree with everything that is said in this book, I did agree with many of the points that Michelle Alexander makes.

The New Jim Crow specifically deals with the crisis of mass incarceration impacting the African American community. The book builds on itself through each of its six sections, driven on by Michelle Alexander and her meticulously cited statistics, data, cases, articles, and interviews, until it arrives at the final suggestion its title implies: that African Americans are facing a “New” Jim Crow under the guise of a shady and unjust criminal justice system.

Given this amount of information and citations in each section, reading this book can be slow and methodical at times. I often found myself flipping to the back, where the fifty pages of endnote citations are, to see where certain statistics and data were coming from. Many of the statistics and studies were eye-opening and made me realize some of the pre-conceived notions I had when it came to drug-related crime.

I also found the book’s discussion of the history surrounding the war on drugs and the death of slavery to be particularly interesting. Michelle Alexander frames this discussion in a way that I had never been exposed to before. The New Jim Crow does a great job of informing the reader of background information while making its argument by discussing specific cases, Supreme Court rulings, and legislative changes that brought the system to what it is today.

Ultimately, agreeing or disagreeing with Michelle Alexander’s entire argument is not why I believe everyone should read this book. Even if you find yourself not completely convinced, you will undoubtedly have opened yourself up to a different opinion and be aware of its arguments.

If you are a prosecutor and read this book, maybe next time you are offering a plea deal you will remember Michelle Alexander’s discussion of innocent defendants making guilty pleas out of fear and distrust of the system. If you are a public defender and read this book, maybe next time you are speaking with a client, you will better understand where they are coming from and the issues they face at all stages of the system.

It is the small steps and considerations which follow this book that are the most important, because it is these small steps and considerations that eventually lead to change.

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

NEW ATTORNEYS Van M. Jones

NEW LAW STUDENT MEMBERS Taylor Bullard Jeffrey T. Davidson Joshua A. Hughes

June 2018

DICTA

John Shipley Miranda E. Stoltz Caleb A. Wade

25

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

IMMIGRATION AND THAT PESKY FOURTEENTH AMENDMENT

Everyone, it seems, has an opinion on immigration. The problem is that those opinions are often diametrically opposed. Some people on the left seem to want something close to open borders, while some people on the right want to, well, build a wall. At the moment, there seems to be no middle ground.

In our country, the immigration debate is complicated by Section One of the Fourteenth Amendment, which provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”1

This clause, the “Citizenship Clause,” effectively overruled what is generally considered to be the worst decision in the history of the United States Supreme Court: Dred Scott v. Sandford.2 In Dred Scott, the Court decided a question of federal court jurisdiction by ruling that Scott, born a slave, could not be a citizen of a state because he could not be a citizen of the United States. He was, instead, property, and thus, the federal courts had no diversity jurisdiction over his case.

Dred Scott was widely condemned by opponents of slavery, including a fellow named Abraham Lincoln, who went beyond the Constitution to the soaring rhetoric of the Declaration of Independence: I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity.

They defined with tolerable distinctness, in what respects they did consider all men created equal-equal in “certain inalienable rights, among which are life, liberty, and the pursuit of happiness.” 3

After ratification of the Fourteenth Amendment, former slaves, born in this country, became citizens.

But what else does the Amendment mean? Is everyone a citizen who happens to emerge from his mother’s womb while she is physically within in the United States? Well, not quite.

Some decisions of the Supreme Court point toward an expansive interpretation of the Fourteenth Amendment’s Citizenship Clause.

In United States v. Wong Kim Ark,4 the Court drew extensively upon English common law to rule that the American-born child of Chinese nationals who were legally present in the United States, and who were not employed by the Chinese government, was a U.S. citizen. In contrast, children of foreign diplomats, born while those diplomats are physically present in the United States, were not considered citizens.

Congress also has considerable power “[t]o establish an uniform rule of naturalization,”5 a power it has wielded both generously and parsimoniously over the past 230 years.

Enter my colleague at Lincoln Memorial University’s Law School, Akram Faizer. Akram recently published an intriguing article in the

26

Tennessee Law Review called “America First: Improving a Recalcitrant Immigration and Refugee Policy.” 6 Akram suggests that conservatives and liberals might be able to agree on a policy employed by other nations: a much-expanded guest-worker and asylum program without a path to either permanent residency or naturalization. Under such a policy, significantly higher numbers of migrants would be admitted to the United States on a temporary basis, with no path to citizenship – for themselves, or for the children they might have while here.

I spoke to Akram about his proposal on a recent episode of my public radio program. He believes that such a compromise on immigration could appeal to both the left and the right. Progressives could applaud the humanitarianism of allowing larger numbers of refugees and economic migrants to share the bounty and the blessings of liberty that we enjoy. Conservatives might also support the humanitarian aspects of an expanded temporary residency program because they would be assured that the migrants and their children would be denied voting rights, and could not, therefore, alter the political landscape.

Like all compromises, however, a guest-worker program would be imperfect. Those who might take advantage of such a program would have, in effect, second-class status within our borders. They, and their children, would likely come to resent that status. On the other hand, Akram points out that guest-workers would often be better off in our nation than they would be in their nations of origin, especially if they are fleeing political persecution, poverty, or the ravages of climate change.

Guest workers might also refuse to leave when their visas expire, necessitating forceful repatriation. And, while they would have no voting rights, they would nonetheless create the kind of demographic and cultural changes that many conservatives wish to avoid.

And then, of course, there’s that pesky Fourteenth Amendment.

Could guest workers effectively waive the rights of their unborn children?

Congress could certainly pass a law to that effect, but it would certainly be challenged. No doubt some children of guest workers would eventually object to the denial of what they would consider their constitutional birthright.

Akram acknowledges all of these issues and admits that he does not have all of the answers. But he would like to start a conversation about immigration reform. And he is undoubtedly correct in one respect: Any such reform will have to appeal to both liberals and conservatives.

U.S. Const. amend. XIV, §1.

60 U.S. 393 (1857).

3 Abraham Lincoln, Speech at Springfield, Illinois, on the Dred Scott Decision, June 26, 1857.

4 169 U.S. 649 (1898).

5 U.S. Const. art. I, § 8.

6 America First: Improving a Recalcitrant Immigration and Refugee Policy, 84 Tenn. L. Rev. 933 (Summer 2018).

1 2

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

DICTA

June 2018

LONG WINDED By:

Jason H. Long London Amburn

PARLEZ-VOUS FRANCAIS?

On April 18, 2018, the Quebec Bar Association filed an action in the Superior Court to declare all of the laws, regulations, and decrees in the province unconstitutional. If the organized bar has its say, nearly 8 ½ million Canadians, living in the second most-populous of Canada’s 13 provinces (can you tell that I have spent some time on Wikipedia?), will be reduced to a lawless, anarchical society where the only order is Social Darwinism, sort of like living in West Virginia (O.K., that was a cheap shot. Sorry to all the West Virginia fans out there. It is a lovely state and I am sure that it values the rule of law and constitutional democracy as much as any other state. I’m just still bitter about a parking ticket I got last time I was in Charleston). Readers may wonder why a group of over 22,000 level-headed lawyers would take such a drastic action. Well, it comes down to a language barrier. It turns out that the Canadian Constitution requires that in Quebec (where the official language is French) all laws be adopted in both French and English. The Quebec National Assembly has apparently been thumbing its nose (or nez) at the provision, at least according to the Bar Association, and adopting the laws only in French to be translated later into an English version. While it may sound trivial, the consequences can be significant.

For example, in 2014, the Quebec National Assembly passed a comprehensive overhaul of the Rules of Civil Procedure. Of course, they only passed a French version.

The English version was translated and not made available for more than three weeks after the French version came out. What’s more, the English version was different in so many respects that the National Assembly required three different “administrative revisions” over the course of two years to iron out the technical difficulties. According to one report (full disclosure here, the report comes from a comment left by someone named “Dominion Lad” to an online article I read about this issue), the problems can be more than procedural. The French version of Quebec’s law concerning driving while using a cell phone makes it a crime to hold a cell phone in your hand and use it while driving. The English version makes it illegal to use a hands-free device while driving as well. I don’t know who “Dominion Lad” is, and his research may be totally off base (I am somewhat suspect that this legal scholar was posting his comment at 4:26 a.m.), but he seemed pretty confident in his analysis. I am too lazy to pull up the English and French versions of this law so, for the purposes of this article, I am going to assume he is correct. If so, try to picture a judge trying to enforce these two equally valid laws. Mon Dieu!

So there appears to be good reason for the Bar Association to take this issue seriously, but is it necessary to throw the baby out with the bath water? Well, it appears that the Bar Association has tried more conservative measures including offering to handle English translation of bills themselves before they are passed, recommending the hiring of June 2018

two English fluent attorneys full time to assist the National Assembly, and meeting to confer regarding other possible solutions with the Attorney General and Assembly Speaker, all to no avail. The Bar apparently takes the position that the laws must be contemporaneously translated and each version adopted at the same time while the National Assembly seems to take the position that adopting the law in French, translating it into English, and then sanctioning that version is sufficient (no word on what “sanctioning” the English version requires but it appears to be something less than contemporaneous passage).

The National Assembly has a legitimate point that if the Bar has its way, Assembly members will be required to become bilingual to pass anything.

What happens if the Bar Association wins its declaratory judgment action? What does the Lord of the Flies look like in Quebec? On the one hand, they are predominantly French, so perhaps it will be a lot of chain smoking frenchmen throwing baguettes and cheese at one another while screaming “Liberté, Egalité, Fraternité!” (My entire knowledge of French stereotypes comes from Pepé Le Pew cartoons). On the other hand, they are Canadian, so there is a decent chance there will be raving bands of lumberjacks rioting in the city with impromptu hockey games and lots of beer. (I know, I know, I am making rash and unfair generalizations here. It’s solely for the comedic purpose. Trust me, I admire the French and Canadian stereotypes a lot more than I do the Tennessee stereotypes – if we voided all of our laws at once, undoubtedly people would expect a bunch of barefoot hillbillies cooking batches of crystal meth and settling all disputes in a dueling banjo format – but I digress).

I suspect that the Quebec Bar Association is merely trying to make a point here. I hope that they do not truly intend to wipe the slate clean and really start from scratch with respect to their code of laws. If they are seeking something short of the nuclear option they are petitioning for, then I believe they have a valid point that the law requires adoption in two separate languages and, in fairness to English speaking citizens (and lawyers) that law should be followed. Failure to do so has consequences and tends to marginalize.

That marginalization breeds contempt as well as resentment and distrust in the administration of justice. If those feeling are allowed to fester, there really will be a Lord of the Flies breakdown. Perhaps all lawmakers would do well to heed the importance of inclusiveness and representation of all constituents to avoid just that sort of breakdown.

I’m just saying . . .

Sincere apologies to anyone who takes offense at my political incorrectness in this column. It is merely for comedic purposes and does not reflect the opinions of the Knoxville Bar Association with respect to the French, Canadians, or West Virginians. That being said, I will be filing a “Motion for Dueling Banjos in Lieu of Trial” in my next case.

DICTA

27

HIDDEN TREASURES By: Angelia Nystrom University of Tennessee Institute of Agriculture

LOVE SHACK, BABY!

Way back in 1989, the B-52’s sang about heading down the Atlanta Highway to the Love Shack, “a little old place where we can get together.”

Last year, Hugh suggested that we head to the Love Shack in Knoxville. I was a bit perplexed.

I thought I had seen some signs for it, but I was certain that I was mistaken about where he meant.

I was hoping that he was not referencing the businesses I had seen on Kingston Pike and Clinton Highway, so I went to the internet.

Warning. Be careful when you Google “Love Shack, Knoxville.” You are more likely to see adult entertainment stores ranked higher than the pop-up burger stand in the Old City to which Hugh was referring. Chef Tim Love’s renowned Love Shack is one of Knoxville’s hidden treasures.

While most people have heard of his Lonesome Dove Western Bistro on North Central Street in the Old City (one of our favorites), many do not know about the Love Shack. They don’t realize that there is a restaurant tucked away in the courtyard behind the Lonesome Dove. As many times as I had been to Lonesome Dove, I had no idea that there was another restaurant behind it.

The Love Shack serves up Chef Love’s famous burgers, nachos, fries and more—all made-to-order and all in a family-friendly environment.

The “kitchen” is a pop-up tent, where gourmet burgers and more are prepared, and seating consists of picnic tables scattered around the courtyard. On cold nights, you can enjoy a warm fire by the fire pit. On Friday and Saturday nights, you can also enjoy live music. Shorts, t-shirts and flip flops is the suggested attire. Drinks come in red plastic cups (several of which have made it into the rotation at our house), and food is served in paper wrappers or paper bags. It is a no-frills dining experience that is similar to eating at a food truck.

Bird,” which is Chef Love’s variation on the chicken sandwich. The “Love Bird” is an organic grilled chicken breast, topped with lettuce, tomato, pickles, cheese and love sauce sandwiched in a soft bun. It was, quite possibly, the best chicken sandwich I have ever had. Hugh tried the “Dirty Love Bird,” which is the Love Bird with bacon and a sunny quail egg.

He is generally a “burger man,” but he loved it. We added home-made parmesan potato chips, which were also quite good.

The menu also includes a fried portabello burger (the “Boom Boom”), a crispy chicken sandwich, and hot dogs, including the “Shack Dog” (with chopped onion and pickled relish) and “Hot Dog” (with Lonesome Dove Texas Red chili, onion and cheese). Sides include nachos, Texas Red chili, and onion rings, just to name a few.

The Love Shack has a full beer and cocktail menu and is open Thursday through Saturday from 11:00 a.m. to Midnight and Sundays from 11:00 a.m. to 9:00 p.m. If you are there late-night, you can also get home-made doughnuts out of the back of the Lonesome Dove. I’m not a doughnut person, but these are worth the fat and calories.

Recently, I suggested to several of my co-workers that we should go to the Love Shack. After I got a couple of raised eyebrows, I explained that we were going to the Old City for burgers and fries. People who work in Ag like really good food, and they really liked the Love Shack. Bonus: we ate and were back on the Ag campus within an hour.

The Love Shack has good food at reasonable prices, and it is worth the trip to the Old City.

As the B-52s sang back in the 1980s, “The Love Shack. That’s where it’s at. Love Shack, baby!”

What it does have, though, is great food.

As a general rule, I’m not a burger and fries person, but Hugh convinced me that I would really like the Love Shack. On our first visit, he suggested that I try the “Love Burger,” which is a 50/50 blend of prime tenderloin and prime brisket molded into a patty and grilled, then topped with lettuce, tomato, pickles, American cheese and Chef Tim Love’s famous “love sauce.” Hugh and Trace tried the “Dirty Love Burger,” which has been lauded by critics as “one of the best in America.” The “Dirty Love Burger” is a variation of the “Love Burger” that also includes bacon and a sunny quail egg. For a non-burger person, my burger did not disappoint. Hugh and Trace obviously liked theirs because, when I asked for a bite, I was met with two resounding “no’s.”

Hugh and Trace also ordered fries. They did let me try a couple, and they were crispy with just the right amount of cracked salt. The Sides menu also includes fried okra with aioli sauce. Being a country girl, I’m a huge fan, so I wondered if the fried okra at the Love Shack could measure up to my standards. It did. Although I shared it with Hugh and Trace, I’ll confess – I didn’t want to.

As we often do, we enjoyed the Love Shack so much on the first visit that we went back the next night. On our second visit, I tried the “Love

28

DICTA

June 2018

BENCH AND BAR IN THE NEWS

How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to Marsha Watson at mwatson@knoxbar.org

FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates.

Click on Public Resources and select “Career Classifieds” from the dropdown navigation.

The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource.

CAN YOU DONATE AN HOUR TO HELP A NONPROFIT? The KBA and its participating attorneys recognize that many small to mid-sized nonprofit organization have legal questions, but not the resources to retain legal counsel.

Participating attorney agrees to provide up to one hour of pro bono legal assistance to 501(c) (3) tax-exempt organizations with a budget of $1,000,000 or less. Through this partnership, nonprofit staff and boards are assured timely and accurate answers while providing attorneys with a satisfying but not overwhelming way to perform pro bono service. If you are willing to help, contact the KBA Office at 522-6522.

PARALEGAL ASSOCIATION The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, June 14, at 12:00 p.m. at the Blount Mansion Visitors Center, Knoxville, Tennessee. John L. Medearis, Chief Deputy Clerk of the U.S. District Court for the E. District of TN, will be presenting Navigating the United States District Court: Practical Tips from the Clerk of Court. The presentation will provide 1.0 hour of CLE. A lunch buffet is available at the cost of $12/person with reservations. Please contact Caroline Sudlow, ACP, at president@smparalegal.org or 865-215-3676 for additional information and/or lunch reservations.

June 2018

NETWORKING OPPORTUNITIES PROFESSIONALS The mission of the KBA’s Interprofessional Relations Committee is to encourage mutually beneficial interaction among lawyers and other professionals in the community, such as physicians, accountants, financial planners, and the like. In addition, where existing relationships may be somewhat strained, the committee aims to find ways to promote a spirit of cooperation and better understanding. The committee welcomes member participation and ideas for networking and/or events or programs to be held in conjunction with other professionals in 2018.

Last year the committee joined the Knoxville Chapter of the TSCPAs and the Knoxville Area Psychological Association in a professional mixer involving over 75 members of the three organizations. Committee Chairs Sherri DeCosta Alley and Paul Wehmeier would like to know if you have any ideas for networking with other professionals. If you would be interested in serving on the committee or have contacts with other organizations, please contact KBA Executive Director Marsha Watson at mwatson@knoxbar.org.

SCHOLARSHIP AVAILABLE TO HIGH SCHOOL SENIORS The law firm of Bond & Botes, PC is offering a $2,000 Financial Hardship Scholarship to high school seniors in Alabama, Mississippi, and Tennessee. Applicants must be entering college in the Fall of 2018. Applicants should have a cumulative GPA of 3.0 or above. Applicants are asked to submit a short essay describing how they have overcome financial hardships and what they have done to help others overcome hardships. The application deadline is July 1, 2018 and a copy of an acceptance letter from an accredited U.S. undergraduate school must accompany the application. The scholarship will be made directly to the student’s school to be applied towards tuition. Read the press release under the News section at www.knoxbar.org.

LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law.

With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice

DICTA

Resources.

OFFICE SPACE AVAILABLE: • Fully Furnished office space available at Bank of America Building; 2 window offices available; 3 interior offices available with cubicle space attached to each interior office; Accessibility to two large conference rooms, full kitchen, and patio area overlooking the TN river; Full lobby area with a receptionist to greet clients; Aggressively priced, 2 parking cards may be available. Call Lance Baker if interested.

Office number is 865-200-4117 and cell phone is 865-310-0997.

•

Shared office space available for one to two attorneys in Farragut. Convenient location right off Kingston Pike. A small office space for support staff is available, as well as a shared file room, conference and reception areas. Contact Jerry Martin at 777-2700.

•

Furnished office within established solo practice. Shared use of lobby, kitchenette, two conference rooms. Easy access for clients, located in Bearden area.

Month-to-month lease. Call (865) 474-1284. $600 per month, first and last required. We can provide phone, internet and multipurpose copier/scanner for additional fee.

•

3,000-plus s.f. of office space near downtown. Easy access. Downtown views. Ample parking. Two suites of five offices, plus five separate offices. Spacious, attractive lobby. Common kitchen. Highly responsive, nonprofit, landlord on premises.

Call 865-525-6806 for information.

Contact Frank Graffeo at 525-6806.

•

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.

29

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

PRO BONO PROJECT By: Kathryn Ellis Pro Bono Director Legal Aid of East Tennessee I’d like to start this month’s article on a personal note. At this year’s Law Day Lunch, I was honored by the KBA Barristers with the Law Through Liberty Award. When Luke Ihnen announced that I was the recipient, I was speechless. If you know me, you know that is not my normal state. But, what I most enjoy talking about is all of you and everything that you do for Legal Aid of East Tennessee and for the Pro Bono Project. I know that without all of you I would not be in a place where this honor would have happened. All of you make what I do possible, and I cannot thank you enough for that. I have spoken to many of you about finding your passion and then applying your passion to Pro Bono work. Whether you are interested in your faith, are passionate about helping families, or love contracts, there is a way to apply your passion through your profession. My passion is making sure others find a way to connect their own passion to helping others in the community.

Thank you all for recognizing me for the work that I do, but even more so, thank you for making it possible for me to live my passion every day. ***********************************************************

It’s still a few months away, but the planning for this year’s Forging Justice Pro Bono Celebration is in full swing. While Forging Justice is designed to be a fun event where Legal Aid of East Tennessee gets to honor, recognize, and thank our wonderful Pro Bono volunteers, our community partners, and our loyal supporters, the evening also serves as our largest single fundraising event in the Knoxville area.

One of the wonderful things about planning Forging Justice is that several people who already support us donate their time, their energy, and their ideas to help us plan an event that is designed to recognize people just like them. This year, our Forging Justice Planning Committee includes Betty Coley, Desiree Eldridge, Denise DuBose, Meagan Collver, Michael Davis, and Preston Farabow.

Right now, our Forging Justice Planning Committee is working hard to connect with sponsors for the event and to find donors for silent auction and live auction items. We are sure that some of you can help!

This year, we have a wide range of sponsorship opportunities and are certain there is an option that will work for you! If you are interested in being a sponsor for our 2018 Forging Justice Pro Bono Celebration and want more detailed information about each option, please contact me directly at kellis@laet.org or at (865) 251-4951.

This year’s specialty sponsorship opportunities include: • Presenting Sponsor ($5,000) – The Presenting Sponsor will receive fifteen (15) tickets to the event. Limit One (1).

• Bar Sponsor ($3,500) – The Bar Sponsor will receive ten (10) tickets to the event. Limit One (1).

• Food Sponsor ($3,500) – The Food Sponsor will receive ten (10) tickets to the event. Limit One (1).

• Law Student Sponsor ($3,500) – The Law Student Sponsor will receive ten (10) tickets to the event, which will be donated to local law students. Limit One (1).

• Dessert Sponsor ($2,500) – The Dessert Sponsor will receive six (6) tickets to the event. Limit One (1).

This year’s tiered sponsorship opportunities include: • Damascus ($3,000) – Damascus Sponsors will receive ten (10) tickets to the event. Limit Three (3).

• Iron ($2,000) – Iron Sponsors will receive eight (8) tickets to the event.

• Titanium ($1,500) – Titanium Sponsors will receive six (6) tickets to the event.

• Copper ($1,000) – Copper Sponsors will receive four (4) tickets to the event.

• Aluminum ($500) – Aluminum Sponsors will receive two (2) tickets to the event.

Mark Your Calendars: * June 2 (9:00-12:00) – Faith & Justice Clinic/ Knox County Saturday Bar at Crosswalk Community Church, 2131 E. Governor John Sevier Highway * June 13 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO * June 16 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County office ______________________________________

Want to Volunteer?

Fill out our new Pro Bono Volunteer Survey: https://www.surveymonkey.com/r/DCTWYFS

* July 7 (9:00-12:00) – Knox County Saturday Bar at LAET’s Knox County office

Save The Date:

* July 11 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO

Forging Justice Pro Bono Celebration October 19, 2018 Ironwood Studios

* July 21 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County office

The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902

phone (865) 637-0484 e-mail:kellis@laet.org fax (865) 525-1162

30

DICTA

June 2018

Q: A:

THE LAST WORD By:

Jack H. (Nick) McCall

Julia, I understand that you are a car aficionado; would you mind sharing with DICTA’s readers your love for cars and racing, and how this came to be?

JULIA M. HALE

Motor oil runs in our blood.

For as long as I can remember, and even longer before that, the members of my family have had a passion for cars. There isn’t anything quite like the feeling associated with coming around turns 3 and 4 at Barber Motorsports Park, up a hill as you begin to approach turn 5. Once you reach the top of the hill, before you have to prepare for the hairpin turn coming up, you feel almost weightless, which can be a bit disconcerting particularly when you know your ability to brake hard is severely diminished for those few seconds.

As a child, I specifically remember summers spent with my Grandparents, and the days where we could go to work with my Grandfather and watch him run his own small business, Don Hale Material Handling. As an adult, my family (and by family, I mean approximately a dozen cousins, a handful of aunts and uncles, grandparents, and my immediate family) gathers for holidays and celebrations. Large proportions of our time spent together usually includes working on repairing/maintaining the various vehicles, ranging from a family minivan to a heavily modified Porsche 987S. The oil is changed, brake pads are replaced. Sometimes, upgrades are installed such as a cold air intake.

Now, every few months or so, my family will spend a weekend at a race track, like Barber Motorsports Park. We will sign up for a track weekend with organizations like the Porsche Club of America or 10/10ths Motorsports. Both organizations provide a controlled environment (at least, as controlled as it can be) where one can memorize track layouts and work on refining the perfect way to attack a corner.

Our dream is to compete in a ChampCar Endurance race, with each member of the family involved in one way or another. With the races we are looking at lasting a minimum of 12 hours, there will be ample time for I, and the rest of my family, to experience driving in a truly competitive setting. Others will be responsible for the maintenance of the vehicle, ready to get under the hood to when issues arise. The best part about this endurance series? The value of the cars eligible to compete are capped, limiting options to cars that are several years old. Hence, why it is not a matter of “if ” but “when will the car break down?”

At the end of the day, win or lose, we will be able to walk away with memories that will last a lifetime.

Who knows where it will lead us, but this is certainly an example where the journey is much more important than the end result.

Maybe it was born out of those inevitable day dreams, when the mind begins to wander as we wait and see if Lewis Hamilton will win yet another driver’s title.1 Or maybe, it started before then. Maybe, this dream began with a poster of a Porsche 930, hovering above the road. Below the car, it read “One ride and you’ll understand why most rocket scientists are German.” Regardless, the desire was born. First, in our hearts. Then, over dinner (most likely pizza), when my father said, “There is no way in hell we could be competitive, but wouldn’t it be fun to try to put our own team together?”

Julia and her dad at Memphis International Raceway in Millington, TN. 1

At the time this was drafted, the Spanish Grand Prix had not yet occurred.

“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.

June 2018

DICTA

31

Prsrt Std US POSTAGE

PAID

KNOXVILLE, TN PERMIT NO. 3 0 9

P.O. Box 2027 Knoxville, TN 37901

Law Day is held on or around May 1st every year around the country to celebrate the role of law in our society and to Law Day is held understanding on or around May 1stlegal everyprofession. year around theKBA’s country to celebrate role law3,in2018, our society and cultivate a deeper of the The celebration wasthe held onof May and the program to cul�vate deeper understanding the legalBarristers, profession.the The KBA'sLawyers celebra�on was held onKBA. May 3, 2018, and the showcased theaoutstanding work of theofKnoxville Young Division of the Barristers President program showcased thean outstanding of theactivities Knoxville Barristers, the Young Lawyers Divisioncultivating of the KBA. Barristers Mitchell Panter provided update on work Barristers and challenged members to continue young lawyers

Panter provided an updateand on Barristers ac�vi�es and challenged members to con�nue cul�va�ng Mitchell so President that the KBA’s strong legacy of involvement service will be continued.

young lawyers so that the KBA's strong legacy of involvement and service will be con�nued.

The Barristers program also included an overview of the high school Mock Trial Competition and the presentation of the prestigious Law &program Liberty Award to Kathryn Ellis, Pro Bono Project Director of Legal Aid of East Since of The Barristers also included an overview of the high school Mock Trial Compe��on andTennessee. the presenta�on becoming Pro Bono Director at LAET, Kathryn has worked diligently to build relationships with other community the pres�gious Law & Liberty Award to Kathryn Ellis, Pro Bono Project Director of Legal Aid of East Tennessee. Since organizations to better serve members of the community not only with their legal needs, but also with their “life” needs. In becoming Pro Bono Director at LAET, Kathryn has worked diligently to build rela�onships with other community 2017, she coordinated and ran more than twenty legal advice clinics working closely with judges, lawyers and law students.

organiza�ons to be�er serve members of the community not only with their legal needs, but also with their “life”

In 2017, coordinated and ran more than twenty legal advice clinics working closely judges, lawyers Theneeds.

American Bar she Association picks a theme each year for Law Day and this year the focus waswith on “Separation of Powers: and law students.

Framework for Freedom.” The phrase refers to the U.S. model of government in which the executive, legislative and judicial branches each have unique responsibilities to ensure that one does not become too powerful. In an hour long panel The American Bar Associa�on picks a theme each year for Law Day and this year the focus was on "Separa�on of presentation on the separation of powers, Hon. Debra C. Poplin, U.S. Magistrate Judge (moderator) led a very interesting Powers: Framework for Freedom."

The phrase refers to- the U.S. model which the execu�ve, discussion featuring J. Douglas Overbey, U.S. Attorney Eastern Districtofofgovernment Tennessee,inHerbert Slatery, III, Tennessee legisla�ve and judicial branches each has unique responsibili�es to ensure that one does not become powerful.

Attorney General, Dwight E. Tarwater, General Counsel, Governor’s Office, and Hon. Kristi M. Davis,too Knox CountyIn an hour long panelDivision presenta�on on the separa�on of powers, Hon. Debra C. Poplin, U.S. Magistrate Judge (moderator) Circuit Court Judge, 1. led a very interes�ng discussion featuring J. Douglas Overbey, U.S. A�orney ‐ Eastern District of Tennessee, Herbert Slatery, III, Tennessee A�orney General, Dwight E. Tarwater, General Counsel, Governor's Office, and Hon. Kris� M. Davis, Knox County Circuit Court Judge, Division 1.

Kathryn Ellis, Director of LAET’s Pro Bono Project, was presented with the Knoxville Barristers Law & Liberty Award by Barristers President Mitchell Panter.

KBA President Keith Burroughs welcomes a sellout crowd to the Law Day Luncheon & CLE. KBA President Keith Burroughs welcomes a sellout crowd to the Law Day Luncheon & CLE.

Kathryn Ellis, Director of LAET’s Pro Bono Project, was presented with the Knoxville Barristers Law & Liberty Award by Barristers President Mitchell Panter.

Kathryn Ellis, Director of LAET’s Pro Bono Project, was presented with the Knoxville Barristers Law & Liberty Award by Barristers

Herbert Slatery, Doug Overbey, Hon. Debra C. Poplin, Hon. Kristi Davis, and Dwight Tarwater participated in a panel discussion on the separation of powers during the LawHerbert Day Luncheon.

Slatery, Doug Overbey, Hon. Debra C. Poplin, Hon. Kristi

Davis, and Dwight Tarwater participated in a panel discussion on the separation of powers during the Law Day Luncheon.