DICTA.March.2019

Management Counsel: Law Practice 101: Managing Law Firms in the #MeToo Era . . . Page 11 Legal Update: Tennessee’s Sanctuary City Ban – Now in Effect – Raises Constitutional Questions . . . Page 9

A Monthly Publication of the Knoxville Bar Association | March 2019

THE OLD RACCOON HUNTER AND THE TAX MAN

2

DICTA

March 2019

In This Issue

Officers of the Knoxville Bar Association

COVER STORY

16

March 2019

The Old Raccoon Hunter and the Tax Man

CRITICAL FOCUS 5 President Wynne du Mariau Caffey-Knight

President Elect Hanson R. Tipton

Treasurer Cheryl G. Rice

Immediate Past President Keith H. Burroughs

Secretary Jason H. Long

KBA Board of Governors Hon. Suzanne H. Bauknight Jamie Ballinger-Holden Loretta G. Cravens Kathryn St. Clair Ellis Elizabeth B. Ford

T. Mitchell Panter Robert E. Pryor Jr. Mikel Towe

Rachel P. Hurt Allison S. Jackson Stephen Ross Johnson Elizabeth K.B. Meadows Mary D. Miller

Heartbeat of Our Legal Profession

Tennessee Supreme Court Revises Approach on Enforceability of Exculpatory Clauses

Managing Law Firms in the #MeToo Era

Tennessee’s Sanctuary City Ban— Now in Effect—Raises Constitutional Questions

Beware of These Mistakes When Promoting Your Practice Today

9

11

13

The Knoxville Bar Association Staff

President’s Message

20

Practice Tips

Management Counsel: Law Practice 101 Legal Update

Schooled in Ethics

WISDOM 7 Marsha S. Watson Executive Director

Tammy Sharpe CLE & Sections Coordinator

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

Shari Holt LRIS Assistant

Dicta

DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association.

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

Exceptions to this policy must be cleared

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

Dick Wirtz – Teacher, Dean, Lawyer-Maker, Friend

Breakfast

Andrew Hale

8 12

12

Dicta is the official publication of the Knoxville Bar Association

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

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

Managing Editor Marsha Watson

KBA Executive Director

Outside My Office Window Hello My Name Is

Urban Legends

Cas Walker: Knoxville’s Working Class (Urban) Legend

18

Barrister Bites

Just Desserts and Sweet Tempations

19

22

Volume 47, Issue 3

Attorney Tribute

24

25

26

27

Vite et crede

Investment Opportunity

Of Local Lore and Law

Archibald Roane: Soldier, Governor, Lawyer

Gadgets

Consumer Electronics Show 2019

Well Read

Educated

Your Monthly Constitutional

Prohibition, Pre-emption and Pot

Long Winded

Love & Basketball

COMMON GROUND 4 Section Notices/Event Calendar 21 Bar Hopping 23 Barrister Bullets 29 Bench & Bar in the News 30 Pro Bono Project 31 Last Word

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

March 2019

DICTA

3

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. To have your name added to the section list, please contact the KBA office at 522-6522.

Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Section for the upcoming CLE program “Tax Considerations for Negotiated Settlements” on March 4 featuring Sonny Schow. If you have a program topic or speaker suggestions, please contact the ADR Section Chairs Betsy Meadows (540-8777) or Bob Stivers (386-1630).

Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. The next Pro Bono Debt Relief Clinic will be held on May 4 and volunteer registration is available at www.knoxbar.org. If you have a program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000).

Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. Join the Corporate Counsel Section for the upcoming CLE program “Bridging the Gap from Corporate Counsel to the Court Room” on March 14 featuring Terry Adams. 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. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Hedrick (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. Join the Employment Law Section for the upcoming CLE program “Developments in the Law of Sex Discrimination – More Questions Than Answers” on March 27 featuring Edward Trent. 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 Catherine Anglin (525-0880) and 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 If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section 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.

Join members of the KBA Government & Public Service Lawyers Section for a section meeting on February 27. The meeting will be scheduled from 12 Noon – 1:00 p.m. and will be held at The Lunchbox (607 Market Street). 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 The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you 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 2017 will automatically be opted-in to the section. On March 21 the Section will sponsor a fitness activity at Cyclebar Bearden from 5:30-6:30 pm. Join us for a FREE Cyclebar class and check out one of the most exhilarating cardio workouts Knoxville has to offer! Register by clicking March 21 on the event calendar at www.knoxbar.org/events. For information about the Section, please contact Section Chairs Erica Green (525-5134) or Jimmy Snodgrass (545-4228).

Senior Section The KBA Senior Section will meet next on Wednesday, March 13 at Calhoun’s on the River. The program title is “Meet the Chief – Knoxville’s New Police Chief Eve Thomas” and will feature Chief Eve Thomas, Police Chief for the Knoxville Police Department. The luncheon will be held from 11:30 a.m. to 1:00 p.m. The price includes an entree, side item, salad and beverage. Please indicate your choice of Grilled Shrimp or Chicken Teriyaki. Register online by clicking March 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. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963) or Patrick Slaughter (637-6258).

4

DICTA

event calendar March

n 4

ADR Section CLE

n 11

Diversity in the Profession

n 5

n 12

Law Office Tech Committee Meeting Committee Meeting

Professionalism Committee

n 12 Knoxville Bar Foundation Board Meeting

n 12

Access to Justice Committee

n 13

Senior Section

n 13

Board of Governors Meeting

Meeting

n 13 n 13 n 14 n 14 n 26 n 27

Veterans Legal Advice Clinic Barristers Meeting Lunch & Learn

Judicial Committee

CLE Committee Meeting

Employment Law Section CLE

April

n 1

ADR Section CLE

n 9

Professionalism Committee Meeting

n 2

Law Office Tech Committee Meeting

n 10 Veterans Legal Advice Clinic n 10 n 11

Barristers Monthly Meeting Diversity in the Profession

Committee

n 17

Board of Governors Meeting

n 26

Legislative Breakfast

n 18

Lunch & Learn

Mark Your Calendar Law Practice Today Expo April 11 & 12, 2019 March 2019

PRESIDENT’S MESSAGE By: Wynne Caffey-Knight Elmore, Stone & Caffey, PLLC

HEARTBEAT OF OUR LEGAL PROFESSION

This March super-circulation issue of DICTA is for all the attorneys in Knoxville and surrounding counties. Knowing it was going to my colleagues who are not yet members of this great organization, I reflected on what my practice would be without the KBA. Before writing my message, I did what lawyers do - I researched the genesis of bar associations.

They began across the pond with the Inns of Court. Early groups in the United States formed at county and city levels, primarily to assure high standards for legal knowledge of bar applicants or to safeguard legal livelihoods. One of the earliest formed in 1740 in New York to repel the British Crown’s encroaching whims. Kentucky lawyers organized in 1846 to oppose a groundswell seeking a constitutional amendment they viewed as attacking the profession. Although unsuccessful at the 1850 convention in preventing judicial elections, they advocated collectively as they saw fit. Precursors to the modern organizations, the first statewide bar was formed in New York in 1876, followed by the American Bar Association in 1878, with stated goals along the lines of facilitating the administration of justice, elevating honor and integrity, and promoting a spirit of kinship.

Contemporary bar associations have come a long way. They are much more diverse and have even broader and altruistic views, making them even more relevant to the current marketplace of attorneys. The KBA is one of these, with this stated mission to: • • • • • •

serve as a leader in advancing excellence, ethical conduct, professionalism and public responsibility in the legal profession; improve the efficiency, fairness and accessibility of our system of justice for all citizens; take an active interest and responsibility in the affairs of government; increase the public’s understanding of the legal system, the legal profession, and its role in the system; use the Bar’s collective resources to improve the well-being of the community and its citizens, especially the youth; and to identify and support the needs of a diverse membership and foster an environment in which members experience a sense of fulfillment and satisfaction in the practice of law.

According to the website, our association’s formal inception date is hard to pin down, but judging from memorial resolutions for deceased attorneys recorded in the Knox County Chancery Court, it was organized by as far back as 1895. While the law typically evolves slowly over time, the legal marketplace has changed much more rapidly, and especially so this past decade. The KBA remains amidst the fray, evolving just as quickly to remain relevant while managing a $700,000 budget to meet the demands of our 1900 members.

First and foremost, the KBA’s role is to support you as an attorney. I can only summarize its offerings, starting with this exceptional publication. I sent the last two DICTA issues to my family members from New Mexico to Melbourne, Australia. Attorneys and laypersons among them, they lavished comments about the incredible substantive content and quality of the writing. Membership opens access to a plethora of practice resources, including joining the 16 committees and 12 sections for free, more than 100 on-demand substantive law and practice management and technology how-to videos, an excellent website with your individual profile, integrated access to your e-community within the association and peer-to-peer listservs, judicial profiles with their courtroom procedures and advice, free online career classifieds, March 2019

and free conference room use. Mentor for a Moment introduces you to knowledgeable volunteer attorneys happy to discuss legal or practice issues.

CLE programs are a bargain and further discounted for members.

The $140 annual pass lets you meet your entire CLE requirement on a tight budget. Almost all live sessions are recorded, so if you miss a program, you can view it online for free, and if also want CLE credit, you simply pay the reasonable fee. For a nominal fee, the online firm directory service puts you front and center, searchable by the public to locate you individually, through your firm or by your practice areas. Members who participated for $150 in the Lawyer Referral Service last year generated in excess of $1,000,000 in fees.

The KBA has a Professionalism Committee devoted specifically to reviewing the Tennessee Supreme Court’s proposed amendments to the rules of evidence, trial and appellate procedure, and conduct for selfregulation of the profession that govern our practice day-to-day. Maybe more than any other regional bar association in the state, the KBA weighs in and advocates for attorneys and their clients on these proposed changes. In January, the Board of Governors raised concerns about due process implications in suspending a law license for unpaid annual fees without confirming receipt of a prior notice that the action would be taken.

Although more virtual components have been added to membership, there is no substitute for the personal, face-to-face interactions through the many social and outreach programs. And memories like those from last night’s Golden Gala would not be created.

We honored attorneys who became licensed in 1949 just a handful of years after the Second World War ended, through 1969 when Adolpho Birch was appointed as Tennessee’s first African American judge and Neil Armstrong of the Apollo 11 crew took his immortal “one small step for man, one giant leap for mankind.” The honorees were asked to write what they consider their career highlights. They shared a resounding sentiment for their cherished relationships with attorneys and judges developed through the bar association. A large contingent of them were former KBA Presidents and leaders. Maybe there is something to be said about longevity and bar membership.

Adrienne Koch, a litigator and an avowed “bar association junkie” like me, describes bar organizations as “the heartbeat of the legal profession.” I like that characterization – not just because I write this message shortly before Valentine’s Day, but mostly because it is spot-on.

Without the KBA, my own practice would be drastically different and far less pleasurable. My path would have crossed only a small fraction of my colleagues. My legal universe would mostly be limited to those attorneys and judges involved in my cases and my experiences with them mostly limited to phone calls, emails, pleadings and court appearances rather than relationships. I would not have the same connections with the law schools or law students or young lawyers, or the same one-on-one access to legislators and the judiciary who make, interpret and apply our laws.

Figuratively, my career would feel singular, and literally, I would have been stuck at my desk more. I would not be as invested in pro bono work or outreach service, and therefore, would have missed out on engaging with so many wonderful people in the community. I would have missed out on the deep satisfaction that comes through being a KBA member.

The KBA is a strong community. Tell us how it can better serve you or our profession. And if you are not a member, I invite you to join us.

DICTA

5

6

DICTA

March 2019

AT TO R N E Y T R I B U T E By: Laura Bradley Myers The Myers Law Firm, PLLC

DICK WIRTZ - TEACHER, DEAN, LAWYER-MAKER, FRIEND

I arrived at UT law school in the fall of 1996, with an excitement, enthusiasm and surety of purpose that I never had before. I knew it was the place for me; I knew I was supposed to be there. I loved the classes, the people, everything about law school . . . until I took my first exam, a criminal law mid-term. I got the worst grade I have ever gotten in my life - before or since - on my very first law school exam.

After that grade, I started questioning my decision to become a lawyer. I mulled, moped, and pondered for a week, deciding whether to cut my losses and run. Maybe I was nuts. Maybe I had left people I loved and a job I was good at to do something I was going to stink at. As I sat one day at the UT student union, at the end of a week of thinking, I had about decided that maybe law school wasn’t the place for me, after all.

I was getting up to go to when I felt someone very tall looking down at me.

Enter Dick Wirtz, who I’ve never called anything but Dean Wirtz. He looked at me, and without me even saying anything, he knew something was wrong.

He didn’t ask to sit down; he just pulled up a chair, sat, and waited. He was my contracts professor; he was The Dean.

Of course I knew who he was, but we had never had a conversation. Over the course of the next hour, we talked about the grade, why I thought I was supposed to be at law school, and why despite the bad grade, I might still be in the right place. Twenty years later, I’m still a (tort!) lawyer, and that conversation is one of the reasons. I’ve gotten to serve; I’ve experienced the joy of doing what I was called to do, not only because of that conversation with Dean Wirtz, but also because of a thousand other conversations we had in the years that followed. Dean Wirtz was always there; he always had something straightforward, smart, and insightful to say, and I always knew he cared about me becoming the lawyer I was supposed to be.

Dean Wirtz became one of the most important and influential people in my life. He encouraged me to do things I would not have done but for him, like Tennessee Law Review and choosing an advocacy concentration. Our discussions about the merits of a judicial clerkship steered me towards my first job after law school, as a law clerk for Tennessee Supreme Court Justice Adolpho A. Birch. Dean Wirtz changed the trajectory of my life, and in guiding me during law school, he changed everything that has followed since then. He did the same thing for many students, and for colleagues, too. Dean Wirtz just had a way of making you feel like you were the only person in the world, like you were the most important person. He had a way of patiently listening like there was nowhere else he needed to be, and nothing else he needed to be doing.

March 2019

Dean Wirtz was a fantastic teacher. How he managed to make decades old contracts cases interesting, sometimes even funny, is beyond me, but he did. He was a superlative leader, and shepherded UT Law through a challenging time when the American Bar Association was deciding whether UT Law would keep its accreditation. As a leader, Dean Wirtz was both visionary and hands on worker. He took the dream of a state-of-the art law school and helped create the physical UT Law campus that exists today. Dean Wirtz also helped establish UT Law’s Center for Advocacy and Clayton Center for Entrepreneurial Law.

When I spoke to people about Dean Wirtz for this article, I heard the same comments – I asked him for advice; I sought his counsel; I liked and trusted him; he told me the truth, sometimes what I wanted to hear, sometimes not, but he was an encouragement and he steered me in the right direction. Other comments were just that he was a singularly exceptional teacher.

Dean Wirtz was born in 1940, son of Jane Quisenberry and Willard Wirtz. Dean Wirtz’s dad served as the United States Secretary of Labor under Presidents John F. Kennedy and Lyndon B. Johnson. Dean Wirtz was a progressive political thinker who proudly proclaimed himself a yellow dog Democrat. He met his beloved wife Peggy while they were serving together in the Peace Corps, and obtained his law degree from Stanford University Law School. He and Peggy had two daughters, Margy and Liza, and he was a devoted dad.

Dean Wirtz began his career with the University of Tennessee College of Law in 1974. He taught as a professor until becoming Dean in 1991. Dean Wirtz was Dean for almost eight years, stepping down to return to full time teaching in 1998. The College named him the first E.E. Overton Distinguished Professor of Law in 2000, he received numerous teaching awards, and he was a Fulbright Scholar. Dean Wirtz was a very accomplished gentleman.

For me, though, he was just Dean Wirtz, a person who I knew cared, and whose care shaped a life, and a lawyer. Not just my life, but many lives. Thanks Dean Wirtz, for being my teacher, and for caring when you had so many responsibilities, obligations, and demands on your time. Thanks for helping me become not just a lawyer, but the kind of lawyer you taught me to be; who understands that the point is service.

Thanks for helping so many students become excited about the law, thanks for being an encouragement, and thanks for being a superlative teacher. Most of all, thanks for being exactly who you were, and for seeing who I was supposed to become, even when I didn’t.

DICTA

7

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

BREAKFAST

Go to breakfast.

I was never a breakfast guy. My mother was always waking us up for school and making breakfast for us as kids - pancakes, Cream of Wheat, cereal, bacon and eggs - whatever we wanted. Meals were ritualistic and wonderful in my home. I recently read Rick Bragg’s book, The Best Cook in the World, and highly recommend it. The stories remind me of my mother who is still the greatest cook I’ve ever known.

However, when it came to breakfast, I just never was into it. By the time I got to high school, basketball workouts and early classes made it easier to skip. When I became an adult and lived on my own, and then with a wife and kids, breakfast became even less important. I was too busy or too eager to get on with my day or simply preferred to sleep a little later and wait for lunch. For the past 24 years I’ve lived west of the city, as far as Lenoir City and Farragut. I had a 30 to 40 minute drive to work.

No time for a meal. Breakfast just wasn’t my thing.

This is a high stress job. Your day is filled with opposing lawyers flooding you with discovery, making demands of your time.

You wake up in the middle of the night after dreaming about a deadline or a statute, maybe you even share my usual dream - I’m showing up for a final in law school and I’ve missed every single class during the semester. Letters need a response, clients need a call, new files need review, and staff and partners want to talk. We haven’t even gotten to what is going on at home - tuition and mortgage payments, kids playing sports, homework. All of it is on you. Even if you have help you tell yourself it is on you. This article is causing your blood pressure to rise right now. The files on your desk and in the drawer are calling out to you, each with their own voice.

Some are louder than others. Some smolder. You, my friend, my colleague, carry the weight of the world on your shoulders, right?

I came in at 6:30 one morning in November. I couldn’t sleep. I’d taught a class the afternoon/evening before. So, as I walked the several blocks to work I knew there would be an afternoon’s worth of mail and hand-deliveries, a blinking phone with voicemails, and the emails I couldn’t stand to look at on my cell phone, all waiting for me. I set down my briefcase, took in the carnage on my desk, turned around, and headed for Pete’s Coffee Shop.

I’d eaten at Pete’s before. My partners often eat lunch together, and we’ve eaten off of the delicious lunch menu. On many mornings I’d driven past Pete’s and noticed that it was packed, but never eaten breakfast. So, shortly after moving downtown and on this morning when I really needed to run from my office, I grabbed my calendar (I keep a book-sized calendar in addition to my phone) and walked to Pete’s.

I sat at the end of the bar and gazed at the breakfast menu. There was a calm in the chaos of that wonderful place and a serenity flooded over me

8

among the sound of spoons mixing cream into coffee, plates stacking, and bacon sizzling. I found my balance. Surrounded by the smell of pancakes, eggs, and sausage grease, I took a deep breath. Stormy came by and greeted me in what had to be a honey-tainted accent born of Strawberry Plains, maybe Vonore. She asked how my day was, but she instinctively realized I wasn’t all there. Perhaps it was the look on my face - I was a man catching my breath. I didn’t want to chit chat. Never underestimate the intuition of a waitress at a diner counter. I ordered 3 blueberry pancakes, bacon, coffee and a large orange juice. I took my sweet time.

The blueberries burst beneath the fork, and when I bit through the touch of maple syrup on the end of my bacon it carried me somewhere close to home in 1978. I ate it all, enjoying each bite, savoring the feeling of order falling back into my life, and even though I couldn’t count the calories I’d just consumed, I felt lighter on the walk back to the office. The town was waking up. Shopkeepers were turning on lights. Restaurant owners were taking chairs off of tables, and the streets were still void of traffic. My senses were intact and things I’d missed because of worry on the first trip to my office were now standing out. I walked into my office and sat behind my desk, the heat of Pete’s pancakes lingering in my belly, the mountain lion on my shoulders taking a mid-morning nap.

It is now part of my routine at least a couple of days a week, which means that my belt is getting tighter. Perhaps I’ll join the YMCA this week to offset my gluttonous new form of stress relief. If you get to Pete’s early you might catch the legendary and kind Arthur Seymour. A couple of times I’ve pulled up a chair next to Will Carver, a fine man and lawyer who is a common adversary. On the couple of occasions we happened to be at the bar at the same time, we belly-ached about the law and talked about raising kids. We unloaded our stress over breakfast and spoke of the things that truly matter, like youth basketball and our cute wives, wondering aloud what the Hell they were thinking when they said “I do.”

For the warrior, the lawyer who is in the arena, peace is hard to find. We schedule a week’s vacation where we get three days in before we can truly take a breath. We close our door to take a few minutes of peace, but the phone rings and the emails ping. Where do we go? What do we do when we just need a moment to reflect, to catch our breath? I go to the end of the bar at Pete’s and order pancakes from Stormy. If you walk in and see me there you’ll know that I’m catching my breath. If I’m staring at the wall and seem to be contemplating stabbing myself with a fork, don’t talk to me. If not, join me. I love talking to fellow warriors. It very well might be that I simply needed some blueberry pancakes. They really are delicious.

DICTA

March 2019

PRACTICE TIPS By: Jessica

Jernigan-Johnson London Amburn

TENNESSEE SUPREME COURT REVISES APPROACH ON ENFORCEABILITY OF EXCULPATORY CLAUSES

Tennessee attorneys may want to closely review their clients’ contracts after a recent Tennessee Supreme Court decision interpreting the enforceability and scope of contractual exculpatory provisions.

In Copeland v. Healthsouth/Methodist Rehabilitation Hospital, et al., the Court revised Tennessee’s approach to reviewing and enforcing exculpatory clauses in contracts.1 Frederick Copeland was a patient at HealthSouth Rehabilitation Hospital North Memphis after having knee replacement surgery.2 While at the hospital, Mr. Copeland required transport to an appointment to see his orthopedic surgeon.3 The hospital had contracted with MedicOne Medical Response Delta Region, Inc. (“MedicOne”), a transportation company, to provide transportation services for its patients, including Mr. Copeland.4 On the day of his appointment, a MedicOne employee arrived at the hospital to take Mr. Copeland to his appointment and provided him with a pre-printed two-sided document that included a Wheelchair Van Transportation Agreement (“Agreement”). 5 The Agreement contained nine, singlespaced paragraphs, including a three-paragraph exculpatory provision.6 The exculpatory provision stated that Mr. Copeland released MedicOne from any and all claims arising from or in any way related to any transportation services provided by MedicOne.7 Mr. Copeland signed the Agreement.8 MedicOne transported him to his doctor’s appointment.9 As Mr. Copeland was getting into the van after his appointment, he fell and was injured.10

Mr. Copeland sued MedicOne for negligence in Shelby County Circuit Court.11 MedicOne moved to dismiss or, in the alternative, for summary judgment based on the exculpatory language of the Agreement.12 The trial court granted summary judgment in favor of MedicOne, finding that the Agreement was not a contract of adhesion, and because the services were not professional services, the exculpatory agreement was enforceable.13 The Court of Appeals affirmed.14 The Supreme Court began its analysis with Olson v. Molzen, 558 S.W.2d 429 (Tenn. 1977), where it first adopted factors to be considered when determining the enforceability of an exculpatory agreement.15 Recognizing that after its decision in Olson there was confusion among lower courts about whether the factors applied only to exculpatory agreements involving professional services, the Court held that the approach adopted in Olson, including the factors, was too rigid and failed to consider all relevant circumstances.16 Accordingly, the Court held that the enforceability of an exculpatory agreement should be determined by considering the totality of the circumstances and weighing these nonexclusive factors: (1) relative bargaining power of the parties; (2) clarity of the exculpatory language, which should be clear, unambiguous and also explicit about what the signing party is giving up; and (3) public policy and public interest implications.17 In addition, the Supreme Court held that this analysis should be applied to all exculpatory provisions, not just those in professional services contracts.18

The Court also defined each factor in order to provide additional guidance for applying this analysis.19 As to the first factor, the relative bargaining power of the parties, the Court identified that the two key criteria to consider are the importance of the service at issue for the physical, or economic well-being of the executing party, and the amount

March 2019

of free choice the party has in seeking an alternative arrangement.20 Importantly, the Court noted that a standardized form, offered on a take-it-or-leave-it basis, may be invalid if there is a great disparity of bargaining power, the signing party does not have an opportunity to negotiate the agreement, and the services could not be reasonably obtained elsewhere.21 In defining the second factor, the Court stated the exculpatory provision must clearly and unequivocally state that the party is relieved from liability and the wording must be clear enough that an ordinary and knowledgeable person would understand what rights he or she is giving up by executing the agreement.22 The Court also stated that the language should alert the executing party that the exculpatory provision concerns a substantial right and must not be so broad as to release the non-executing party from liability for any injury for any reason.23 Finally, the Court addressed the public policy and public interest implications that should be considered.24 Noting that this was the hardest factor to articulate, the Court stated that courts should consider whether the exculpated party has a public service obligation, whether the service is the type that is considered suitable for public regulation, and whether the services are of great importance to the public.25 Applying all of these factors to the facts of the case, the Court held the Agreement’s exculpatory provision was unenforceable and reversed the trial court’s judgment in favor of MedicOne.26

In light of the Court’s decision and its holding that this analysis applies to all exculpatory provisions, Tennessee attorneys may want to carefully review exculpatory provisions in existing contracts and keep the Court’s guidance in mind while drafting exculpatory provisions in the future. Particular attention should be paid to the clarity of the language used and the scope of the provision, which should be tailored to satisfy the Court’s guidance.

3

4

5

6

7

8

9

1 2

13

14

15

16

17

18

19

20

21

22

23

24

25

26

10 11 12

DICTA

No. W2016-02499-SC-R11-CV, 2018 WL 6695370 (Tenn. Dec. 20, 2018).

Id. at *1.

Id. Id. Id. Id. Id. at *4.

Id. Id. Id. Id. Id. Id. Copeland v. HealthSouth/Methodist Rehab. Hosp., LP, No. W2016-COA-R3-CV, 2017 WL 3433130, at *3 (Tenn. Ct. App. Aug. 10, 2017).

Copeland, 2018 WL 6695370, at *2.

Id. at *3–*9.

Id. at *9.

Id. Id. at *10.

Id. Id. Id. Id. Id. at *11.

Id. Id.

9

Photo Ops

BAR LEADERS EVENT On January 24th, members of the KBA New Lawyers Section (NLS) gathered at Elkmont Exchange for a chance to get to know one another and hear about the practice of law from KBA Member Jamie Ballinger-Holden. Bible Harris Smith, CPAs was the sponsor for the Section’s welcome reception.

10

DICTA

March 2019

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: John

E. Winters and Erica D. Green Kramer Rayson LLP

MANAGING LAW FIRMS IN THE #METOO ERA

“I have never seen a societal phenomenon that has had the impact on our business as the #MeToo movement and the post-Weinstein world.”

-Dan Nardello, CEO, Nardello & Company. If you have turned on the television, opened Twitter, or just walked past a magazine stand in the past year, it is likely you have heard of #MeToo. With one tweet, a movement was started that is altering business practices across the country, including law firms. By better understanding this movement and its impact on workplaces, employers can develop procedures to adapt and respond to the important issues it illuminates.

The Evolution of Gender Discrimination and Sexual Harassment in the Law

Title VII’s prohibition on gender discrimination was a last-minute addition, which was made through an amendment on the floor of the House of Representatives.1 The amendment added “sex” to Title VII’s list of prohibited bases for discrimination and was proposed by conservative opponents of the civil rights legislation because they believed it would lead to the defeat of the entire bill.2 They were wrong.

In 1978, the Fifth Circuit Court of Appeals held that Title VII does not protect gender expression or “affectional or sexual preference” because Congress intended only to “guarantee equal job opportunities for male and females.”3 The Supreme Court, in 1986, held that sexual harassment is sex discrimination under Title VII.4

In 1989, the Supreme Court expanded the definition of “sex” to include gender,5 and in 1999, the First Circuit Court of Appeals explained that Title VII does not prohibit harassment simply because of sexual orientation.6 The Seventh Circuit Court of Appeals took the opposite approach in 2017 and held that Title VII prohibits sexual orientation discrimination.7 The Second Circuit Court of Appeals reached the same conclusion a year later.8 The #MeToo Movement

The #MeToo movement went viral on October 15, 2017, with a tweet from Alyssa Milano.

The tweet called for all those who had been sexually harassed or assaulted to write “me too” in reply.

The #MeToo term was actually coined in 2006 by activist Tarana Burke, who focused on helping survivors of sexual violence, particularly young women of color from disadvantaged communities, to find pathways to healing.

Since Ms. Milano’s tweet approximately one year ago, a slew of allegations has consumed the media and many companies have already felt an impact. The “Weinstein-Effect” refers to the floodgate of allegations brought against other celebrities following the sexual assault and harassment allegations made against Harvey Weinstein. Many companies, such as Uber, Nike, and Microsoft have been impacted and have taken remedial steps, including conducting internal audits, terminating employees, and even removing from employment contracts the requirement that sexual harassment and gender discrimination cases be handled in private arbitration.

Recent Equal Employment Opportunity Commission (“EEOC”)

data highlights the impact the #MeToo movement is having on workplaces. Notably, charges alleging sexual harassment that were filed with the EEOC decreased in number every year from 2010 to 2017.9 However, based on preliminary data, the EEOC reported that, in 2018, charges alleging sexual harassment increased by more than twelve percent (12%) from 2017.10 Furthermore, in 2018, the EEOC filed 66 harassment lawsuits, including 41 that involved allegations of sexual harassment, which is more than a fifty percent (50%) increase over the same type of lawsuits in 2017.11 Overall, the EEOC recovered nearly $70 million for victims of sexual harassment through litigation and administrative enforcement in 2018, compared to $47.5 million in 2017.12 Responding in the Workplace

In light of the #MeToo movement and its impact on workplaces, employers should develop, or reinforce, existing anti-harassment and antidiscrimination policies. These policies should identify clearly what types of behavior constitute sexual harassment, provide for a clear complaint procedure, inform the complaining party that their cooperation will be needed during an investigation, and state that retaliation will not be tolerated. Furthermore, employers should communicate clear reporting procedures to their employees.

We also recommend conducting regular training to advise and update employees of the policies. In this regard, live, in-person training is much more effective than video or webinar training. Moreover, it is important for employees to know how and to whom to report sexual harassment. Finally, if harassment is reported, employers should conduct a thorough investigation that includes reaching out to all relevant witnesses and takes seriously all allegations, regardless of who they are against or how long ago the alleged conduct took place. If the investigation reveals merit to the allegations, the harasser should be disciplined, or even terminated, if the circumstances warrant such action.

Conclusion

With the rise of the #MeToo movement, our society is more aware than ever of the nature and extent of gender harassment that has taken place in the workplace for generations. Managers should recognize this heightened awareness and implement sound, detailed policies that are clearly communicated to employees. Further, every complaint should be taken seriously and a thorough investigation conducted.

Deborah Epstein, Can a ‘Dumb Ass Woman Achieve Equality in the Workplace?

Running the Gauntlet of Hostile Environment Harassing Speech, 84 GEO LJ. 399, 409 n.62 (1996).

2 Id. 3

Smith v. Liberty Mut. Ins. Co., 569 F.2d 325 (5th Cir. 1978).

4

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63 (1986).

5

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

6

Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 257 (1st Cir. 1999).

7

Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018).

8

Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017).

9

“Charge Statistics (Charges filed with EEOC) FY 1997 Through FY 2017,” EEOC, https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm.

10 “EEOC Releases Preliminary FY 2018 Sexual Harassment Data,” EEOC, https:// www.eeoc.gov/eeoc/newsroom/release/10-4-18.cfm.

11 Id. 12 Id. 1

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

March 2019

DICTA

11

HELLO MY NAME IS . . .

By: Jennifer A. Dobbins Lipsey, Morrison, Waller & Lipsey, P.C.

ANDREW HALE

Collaboration has always been a theme of the career of Andrew Hale, an associate attorney at Kramer Rayson. The year prior to starting law school, his experience in the Knoxville Fellows program shaped his career.

During this year he externed with the Knox County District Attorney’s Office, lived with thirteen other Fellows in an apartment above Market Square, and took classes ranging from professional development to leadership to faith. The program strengthened his resolve to succeed in law school and to build his future career around working cooperatively with clients and other attorneys. “The Fellows program does an incredible job of teaching recent graduates how to integrate their faith and vocation, as well as making Fellows want to stay in Knoxville to build their career and serve our community. I use lessons I learned during my time as a Fellow every day.”

Andrew was born and raised in Knoxville, Tennessee. While Andrew was growing up, his father, Thomas Hale, a partner at Kramer Rayson, encouraged him to excel both in academics and in sports, including soccer. Yet, unlike his two siblings, Andrew gravitated towards law. “I’ve always looked up to my dad, so being a lawyer like him was something that was on my radar. He never pushed me toward law and that made me want to do it more, I think,” he says.

attorneys there really got to see me grow up from being a runner to being a summer associate and now as an associate. The firm has a very warm family atmosphere, and I can’t imagine being anywhere else.”

In his spare time, Andrew enjoys attending the Episcopal Church of the Ascension, being active with his wife, Morgan, spending time with his family, playing the occasional tennis game, and cheering for the Vols.

Morgan and Andrew are also eagerly anticipating a new canine family member. “We are really excited because we are getting a goldendoodle puppy soon,” he explains.

In his future practice, Andrew plans to apply his study in Public Administration by serving municipal and government entities and to continue practicing employment and business law. He credits his firm for supporting their associates in building their future practices early in their career, and he looks forward to continue to collaborate with other attorneys to develop his own client base. The Knoxville Bar Association welcomes this ambitious attorney to the bar.

When Andrew graduated from Farragut High School, there was no question where he would attend college. As a third-generation graduate of the University of Tennessee at Knoxville, Andrew considers himself to be a life-long Volunteers fan and says UT is in his DNA. But Andrew was always thinking of his future career in law. While he completed a Political Science degree with a concentration in Public Administration and a minor in Business Administration, Andrew worked as a runner for Kramer Rayson.

In law school, Andrew focused on courses and extracurricular activities that allowed him to work together with his peers. He enjoyed collaborating with other law students in the Wills Clinic and as a leader in the Student Bar Association. “The Wills Clinic was unique in that there was a small group of us and we were really close. We always worked together and would travel together to will signings in some faraway counties,” he explained.

As an associate attorney, Andrew values the variety of work in multiple practice areas, such as employment law, business and civil litigation, municipal law, and transactional work. When he is asked about the experience of working with his father, he replies warmly. “Working with him is what I’ve always wanted, and I’m very fortunate to have the opportunity to do so. He’s great at teaching me, and he’s very patient.

But I also get to work with everyone in the firm, which is great. The

12

DICTA

March 2019

L E G A L U P DAT E By: Christine Ball-Blakely Tennessee Valley Authority, Office of the General Counsel

TENNESSEE’S SANCTUARY CITY BAN – NOW IN EFFECT – RAISES CONSTITUTIONAL QUESTIONS

Last spring, the General Assembly passed HB 2315 – better known as Tennessee’s sanctuary city ban.1 Governor Haslam declined to sign or veto the bill, allowing it to become law without his signature.2 The ban went into effect on January 1, 2019.

The law’s legislative findings assert that “[a]llowing illegal immigrants to reside within this state undermines federal immigration laws and state laws allocating available resources . . . .”3 Against this backdrop, the law forces state and local governmental entities and officials to cooperate with Immigration and Customs Enforcement (“ICE”). It also authorizes local law enforcement agencies to participate in the enforcement of federal immigration law.

Banning “Sanctuary Policies”

The law prohibits state and local governmental entities and officials in Tennessee from enacting “sanctuary policies.”4 A sanctuary policy is broadly defined, including not only formally enacted orders but informal practices as well. Sanctuary policies include those that: • • • •

•

Limit or prohibit communication or cooperation with federal authorities to verify or report immigration status.

Give undocumented immigrants the right to lawfully exist in Tennessee.

Prevent law enforcement from asking any person about their citizenship or immigration status.

Restrict cooperation or compliance with requests from ICE, including detainers5 and other requests to hold undocumented immigrants or to turn them over to ICE for potential deportation.

Condition cooperation or compliance with such ICE requests on ICE obtaining a warrant or demonstrating probable cause.6

The law includes a citizen enforcement mechanism. Tennessee residents who believe that a state or local government entity or official has violated the law may file a complaint in chancery court, and must show by a preponderance of the evidence that a violation has occurred.7 If a state or local governmental entity or official is found to be in violation of the law, the entity will be ineligible for community development funds.8 Further, the court must issue a writ of mandamus against the state or local governmental entity or official, enjoin further violation of the law, and take other action to ensure compliance.9 Local Law Enforcement

Constitutional Questions

The Shelby County Sheriff ’s Office (“SCSO”) recently ended its compliance with ICE detainers17 after receiving advice from the Shelby County Attorney that such compliance is not mandatory under federal law,18 and that compliance could violate the Fourth Amendment of the United States Constitution.19 It remains unclear how the sanctuary city ban will impact SCSO.

As detailed in the Shelby County Attorney’s analysis, Tennessee jails are required to “verify the citizenship status of each arrested, booked, or otherwise confined individual and report those individuals to [ICE]” if law enforcement determines that the individual is in violation of the INA or is unable to determine an individual’s immigration status.20 These reports often trigger detainers from ICE, which, if honored, result in reported persons being held in jail for up to forty-eight hours after they would otherwise have been released.21 Detainers are “based on ICE personnel’s unsworn assertion that there is probable cause to detain the individual for an additional 48 hours based on the individual’s immigration status.”22 Local law enforcement, however, cannot detain a person based on their immigration status because “immigration violations are civil, not criminal, offenses.”23 Extending a person’s detention is a new arrest under the Fourth Amendment and requires law enforcement to have probable cause.24

Based on these constitutional concerns – and the growing body of caselaw finding Fourth Amendment violations under these circumstances – the Shelby County Attorney recommended that SCSO end its compliance with ICE detainers.25 As previously discussed, the sanctuary city ban mandates cooperation and compliance with ICE detainers, and it also prohibits state and local governmental entities and officials from requiring ICE to obtain a warrant or demonstrate probable cause before complying with detainer requests.26 Governor Bill Lee has assigned his legal team to investigate and evaluate SCSO’s compliance with the sanctuary city ban.27

The law further authorizes12 Tennessee law enforcement agencies to enter into formal agreements with ICE under section 287(g) of the Immigration and Nationality Act (“INA”).13 These agreements deputize law enforcement agencies to engage in federal immigration enforcement.14 Currently, the Knox County Sheriff ’s Office (“KCSO”) is the only Tennessee law enforcement agency with a 287(g) agreement with ICE.15 The City of Knoxville does not have one due to concerns that entangling

1

In addition to banning sanctuary policies, the law also explicitly authorizes local law enforcement agencies and officials to communicate with federal authorities about the immigration status of any person, “including reporting knowledge that a particular alien is not lawfully present in the United States . . . .”10 The law also authorizes law enforcement agencies and officials to cooperate with federal authorities “in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.”11

March 2019

local law enforcement with federal immigration enforcement will erode public trust and make it more difficult for police officers to do their jobs.16

2

3 4 5

9

6 7 8

10 11

DICTA

HB 2315, 110 Gen. Assemb. (Tenn. 2018) (sharpening Tennessee’s previously existing sanctuary city ban, which was enacted in 2009).

“House Bill 2315 is a solution looking for a problem and has primarily served to stir up fear on both sides of the issue . . . . Sanctuary cities are already prohibited by state law and do not exist in Tennessee.” Letter from Governor Bill Haslam to Speaker Beth Harwell (May 21, 2018) (on file with author).

Tenn. Code Ann. §§ 4-42-101(2), 7-68-101(2).

Tenn. Code Ann. §§ 4-42-103, 7-68-103.

As discussed below, a detainer is a request from ICE that a person be held in jail for up to forty-eight hours after they would otherwise have been released so that ICE can take the person into custody for potential deportation. See 8 C.F.R. § 287.7(d); Department of Homeland Security Form I-247A, Immigration Detainer – Notice of Action, https://www.ice.gov/sites/default/files/documents/ Document/2017/I-247A.pdf (last visited Feb. 8, 2019).

Tenn. Code Ann. §§ 4-42-102(3), 7-68-102(4).

Tenn. Code Ann. §§ 4-42-104(a)–(b), 7-68-104(a)–(b). §§ 4-42-103, 4-42-104(e), 7-68-103, 7-68-104(c)(2). §§ 4-42-104(c)–(d), 7-68-104(c)(1), (d).

Tenn. Code Ann. § 7-68-105(a).

Id. (Continued on page 14)

13

TENNESSEE’S SANCTUARY CITY BAN – NOW IN EFFECT – RAISES CONSTITUTIONAL QUESTIONS (Continued from page 13)

An earlier version of HB 2315 mandated that Tennessee law enforcement agencies establish 287(g) agreements with ICE, but the final version simply permits such agreements. See Letter from Governor Bill Haslam to Speaker Beth Harwell, supra note 3.

13 § 7-68-105(b) (citing 8 U.S.C. § 1357(g)).

14 See § 1357(g).

15 KCSO also entered into an intergovernmental service agreement last summer,

which pays the county $67 per day for each ICE detainee. Afterwards, the number

of ICE detainees in the Roger D. Wilson Detention Facility grew by three hundred

percent. The detention facility now also accepts ICE detainees from surrounding

counties, “making Knox County a hub for ICE . . . .” Ultimately, ICE takes the

detainees to a detention facility in Louisiana. From there, the detainees face

deportation. Tyler Whetstone, Knox County ICE Detainees Spike After Ex-Sheriff

Signs New Agreement, Knoxville News Sentinel, Sept. 9, 2018, https://www. knoxnews.com/story/news/local/2018/09/09/undocumented-immigrants-held knox-jail-spike-under-new-agreement/1202070002/.

16 Id. 17 Jonathan Mattise & Kimberlee Kruesi, Bill Lee: Legal to Investigate if Shelby

County Breaking Immigration Law, The Tennessean, Jan. 18, 2019, https://www. tennessean.com/story/news/politics/2019/01/18/bill-lee-shelby-county-breaking- immigration-law/2619464002/.

18 The Shelby County Attorney also noted that mandatory detainers under federal law

would violate of the Tenth Amendment of the United States Constitution, “which

prohibits the federal government from commandeering local jurisdictions.” Letter

from Kathryn W. Pascover, Shelby County Attorney, to William Oldham, Sheriff of

Shelby County 3 (Apr. 9, 2018) (citing Galarza v. Szalczyk, 745 F.3d 634, 643 (3d

Cir. 2014)) (on file with author).

19 Id. at 1.

20 Id. at 1–2 (discussing Tenn. Code Ann. § 40-7-123(b)).

21 Id. at 2 (discussing Department of Homeland Security Form I-247A, Immigration

Detainer – Notice of Action, https://www.ice.gov/sites/default/files/ documents/Document/2017/I-247A.pdf).

12

14

Id. Id. at 4 (citing Csekinek v. I.N.S., 391 F.3d 819, 824 (6th Cir. 2004)).

24 Id. (citing Illinois v. Caballes, 543 U.S. 405, 407–08 (2005); Barnes v. Dist. of

Columbia, 242 F.R.D. 113, 118 (D.D.C. 2007)).

25 Id. at 2, 6 (citing Abriq v. Hall, 2018 WL 1075033 (M.D. Tenn. Feb. 26, 2018);

Roy v. Cty. Of Los Angeles, 2018 WL 914773 (C.D. Cal. Feb. 7, 2018)); see Morales

v. Chadbourne, 793 F.3d 208, 218 (1st Cir. 2015); see also Galarza, 745 F.3d at

638–39, 645.

26 Tenn. Code Ann. §§ 4-42-102(3)(D)–(E), 7-68-102(4)(D)–(E).

27 Mattise, supra note 18.

22 23

DICTA

March 2019

URBAN LEGENDS By: Sarah M. Booher OEB Law, PLLC

CAS WALKER: KNOXVILLE’S

WORKING CLASS (URBAN) LEGEND

“People said they wouldn’t stoop to some of my promotions. But, brother, if I’d thought of a few more things, I’d have stooped a little lower.”

Orton Caswell “Cas” Walker was born in Sevier County in 1902 but didn’t arrive in Knoxville until 1924. He was in Harlan, Kentucky, working in the coal mines when the miners decided to strike for the third time in his tenure there. He’d been saving up money for three years, didn’t see the value in another mine strike, and decided to take off. It took him three long weeks to get to Knoxville.1

He opened his first Cas Walker’s Cash Store that same year on Vine Avenue. He paid $750 for the store, pulled a car to Market Square and back each day with fresh produce for his customers, and ended his first week with $27.2 It wasn’t long, though, before people started coming in droves on Saturdays for chicken tossing. That’s right, folks. Old Cas would stand on the roof of his store and toss live fryer chickens out to the crowd.

If you caught the chicken, it was yours to keep. His first chicken toss got him $1,200 in the till at the end of the day. To the delight and amusement of his faithful clientele, mainly working class white and African-Americans in Knoxville, he followed up his chicken tosses with “greased-pig contests, free flea dips, dancers hired off the street, [tossing coupons from airplanes], and other promotions that ranged from the crafty to the ridiculous.”3

In 1929, he began a variety show to promote his stores called the Farm and Home Hour on the radio and then adapted it for television in 1953. It continued until 1983, and had a variety of artists such as Roy Acuff, Jim Nabors, and Chet Atkins. In 1956, ten-year-old Dolly Parton so impressed the Knoxville businessman with her declaration that she wanted to work for him that he put her on his show. It was her first radio and television appearance, and her own family didn’t even have a television yet.4 Later he allegedly kicked The Everly Brothers off his show.

In 1939, he made an unsuccessful bid for Knoxville City Council, but in 1941 was the top vote getter. In January 1946, he finally became mayor, but to this day is known for serving the shortest term in the City’s history. But, boy, was it a colorful term! He was a champion of the common people, of the very people who had made him a successful businessman.

As such, he railed throughout his political career against parking meters, fluoridated water, automobile license taxes, liquor sale, Sunday movies, pay raises for city employees, daylight saving time, consolidating Knoxville and Knox County governments, and the Knoxville News Sentinel.

He held government meetings without notifying the press. He failed to give promised jobs to friends when he couldn’t get around the civil service restrictions. He even forced his friend and political mentor, George Dempster (the city manager), out of office after Demster proposed a personal property tax to balance the city’s budget.5

Eleven months after being elected, Walker was forced out in a recall election, still a champion of the working class but a despised enemy of the town elite, whom he had long ago dubbed “the silk stockings.” Ultimately, most everything he opposed did in fact become law in Knoxville and Knox County.

Walker, in all his self-promotion shenanigans and fire-starting, was no stranger to legal troubles, making him the worthy topic of our inaugural Urban Legends article. In 1965, he successfully appealed a worker’s compensation case brought by the widow of a deceased employee who suffered a heart attack on the job.6 It would seem that was his only legal success during his time as Knoxville’s favorite rebel. Later, 1971 provided a difficult year for him legally. First, he took a plea deal after he assaulted the mother of a County Commissioner. “Where I kicked her. . . I planted me a boot factory that never did cost me a cent. . .. She was an awful good woman except when she took these mad spells.” It is believed that part of that plea deal was to never run for public office again, and he retired from politics.7 March 2019

That same year he settled a libel case concerning his weekly tabloid The Watchdog before the jury returned with their verdict. As part of his support for the unknown underdog candidate running for school board, Julia Tucker, Walker published numerous articles about the incumbent that he dubbed “Cadillac Jack.” The star witness to Cadillac Jack’s case was Ms. Tucker herself, who admitted that with Cas Walker, “When he’s your friend, he’s your friend. . . But you’d never know which way the wind was going to go.”8

In 1981, he lost another libel case that ultimately shut down The Watchdog. Few details can be found about it, but the Museum of Appalachia features some of its last publications, which include his response to the $183,000 judgment against him. “At the beginning, it upset me, but then I got to thinking why should I worry. . . I have ran right smack into a cyclone while on an airplane, which was foolish.”9

“Cas Walker Comes to Town; Sign of the Shears put up in 1924.” Knoxville News Sentinel. Originally published June 20, 1018.

2

Kalra, Ajay, “Cas Walker, The Encyclopedia of Appalachia (Knoxville, Tenn.: University

of Tennessee Press, 2006), 544-545.

3

Cas Walker Comes to Town, supra Note 1.

4 https://dollyparton.com/life-and-career/music/dolly-lands-cas-walker-show/240 5

Lakin, Matt. “Cas Walker’s Short-Lived First-Term as Mayor of Knoxville.” Knoxville

News Sentinel. Originally published May 27, 2012.

6

Cas Walker’s Cash Stores, Inc. v. Martha Livesay, 385 S.W.2d 745 (Tenn. 1965).

7

Bean, Betty. “Knoxville’s Most Powerful Grocer,” Metro Pulse Online. https://

monkeyfire.com/mpol/dir_zine/dir_1998/830/t_cover.html. Accessed 2/10/19.

8

Id. 9

Id. 1

DICTA

15

The Old Raccoon Hunter and the Tax Man Introduction David A. Draper Lewis, Thomason, King, Krieg & Waldrop, P.C.

As a kid growing up in west Knoxville in the 1960s and 70s, my older brother and I would often watch Cas Walker’s “Home and Farm Hour” TV show. For us, like many, the draw was in never knowing what to expect, whether it was a promotion of a snake-oil product (see, Supraderm Salve) or one of his infamous off-the-cuff rants about a shoplifter or perhaps the Knoxville political elite - the “silk stocking crowd,“ as Cas referred to them.

Caswell Orton Walker was born March 22, 1902. He was one of 12 children. In his book “My Life Story,” he claimed to have been born at The Sinks in Sevier County. Before discovering his gift of promotion, he lived a hardscrabble life eeking out an existence as a coal miner, farmhand, logger, and bootlegger. His father, he once claimed, had killed twenty-four members of the White Caps, a vigilante group that targeted vice and indecent behavior in Sevier County.

According to a June 20, 2018, News Sentinel article, his father taught Cas the grocery business in a small general store his father operated on English Mountain. Cas arrived in Knoxville in 1924, and with $750 saved from coal mining, bought his first store on Vine Avenue on the edge of downtown and near the heart of the Bowery district. In time, his grocery chain grew to 27 stores in three states. The earliest known “flash mobs” descended on his Chapman Highway store to attempt catching a live fryer chicken thrown off the roof (catch it, it’s yours), or to gawk at one Digger O’Dell, who had convinced Cas to bury him alive in the store parking lot, with stove pipe airway and telephone to call out. Cas was incensed the traffic-stopping stunt had to be aborted when O’Dell supposedly faked a heart attack. My most enduring memory of Cas is the “Thumpin Good Watermelon” promotion, and the cornball theme song that accompanied those TV spots.

As a politician, he was known to throw his weight, and fists, around. He served on City Council for thirty years (‘41-‘71) and attained the mayor’s seat not merely once, but twice (’46 -‘59).

COVER Photo: Shown here after the jury’s verdict of acquittal are, front row, from the left, Cas Walker, his bookkeeper, Pearl Brock, and attorney McAfee Lee. On the second row are attorney Clyde Key; Fred Brock, Pearl’s husband; and attorney Ray Jenkins. On the back row is David Buchanan, auditor for the Cas Walker stores.

Cas Walker and his bookkeeper, Pearl Brock, leave the U.S. Courthouse on October 21, 1961, following their acquittal on income tax evasion charges.

At once admired and reviled, Cas Walker was a prodigious employer of local attorneys and a frequent litigant. His counsel included Ray Jenkins, Clyde Key, McAfee Lee, Boone Dougherty, Bob Campbell, and Ralph Harwell. I’m told he was a disobedient client in the extreme, placing well-honed defenses at risk by baiting his adversaries during breaks in a trial.

What follows here is our own former federal court clerk Don Ferguson’s account of Cas’s 1961 tax evasion trial. Don has for years been a champion of preserving this bar’s rich history, something for which we in the bar owe a great debt of gratitude. His remembrances here shed interesting light on The Old Coon Hunter’s epic tussle with the IRS.

Cas Walker and one of his attorneys, McAfee Lee, with briefcase, at the U.S. Courthouse door.

16

DICTA

March 2019

COVER STORY By: David A. Draper Lewis, Thomason, King, Krieg & Waldrop, P.C. By: Don K. Ferguson Executive Director of the U.S. District Court Historical Society

Walker Acquitted Don K. Ferguson Executive Director of the U.S. District Court Historical Society [News-Sentinel article published on January 18, 2004.]

The recently refurbished courtroom in the historic U.S. Post Office and Courthouse on Main Street, which now serves as a state appellate courtroom, was the site of many major trials in its 64-year history as the federal courtroom.

One of the most notable was the Cas Walker income tax evasion trial in 1961.

Walker was a widely known millionaire grocery chain owner, politician and television personality, who was said by some to have been in the local news more than any other individual in the past century.

The approximately 125 seats in the courtroom were filled every day of the three-week trial.

Some came because they wanted to see one of Knoxville’s most famous lawyers in action -- the legendary Ray Jenkins.

He and another prominent Knoxville lawyer, Clyde Key, represented Walker. Some said Key’s role was to try the case and that Jenkins’ role was to appeal to the jury.

They were effective. Walker was acquitted, as was his codefendant, Mrs. Pearl Brock, the company’s office manager. Both defendants and both lawyers are now deceased.

One morning before court convened on a day near the end of the trial, the jury was heard singing “The Old Rugged Cross” in the jury room. Several of the jurors were known to be singers, and one had brought his guitar.

I was a News-Sentinel reporter at the time and interviewed a juror immediately after the trial. He said the jury felt that something strange was going on in Walker’s operations but that the government failed to prove any wrongdoing.

Walker was known to talk at great length in all of his activities, often not staying on point. Despite the efforts of his lawyers and U.S. District Judge Robert L. Taylor to keep Walker’s testimony on track, his answers often went far beyond the scope of the questions asked him.

The Cas Walker income tax evasion trial in October 1961 was a major local story.

Sometimes, he even rambled on into little speeches.

But it was his talking during a recess that nearly got him in trouble with the judge. During a break, Walker strolled into the witness room and started talking to witnesses, which is disallowed by court rules.

Upon learning of the incident, Judge Taylor called the attorneys to the bench and told them, in a hushed, but stern, voice, “If he doesn’t stop it, I’m going to take action. I expect you to see that it’s stopped.”

Walker had an evening television entertainment show, and one evening during the course of the trial, when he started talking about what went on at the trial that day, the audio on the show was cut off the air for about two minutes. You could see him but you couldn’t hear him.

WATE-TV said at the time that Walker’s air time had been purchased only for the purpose of selling groceries and to offer entertainment by country musicians.

The government charged that, as part of the alleged tax fraud scheme, the supermarket chain regularly issued checks made out to various produce firms, and that an official of the grocery chain would then forge the firms’ names on the back as endorsements, take from the daily proceeds a sum equal to the total, and use the money in the chain’s produce operations.

The government said this mysterious process was Cas Walker Cash Stores’ method of replenishing its produce fund.

“Why were these phony checks made out?” a government prosecutor asked Odell Cas Lane, Walker’s nephew, who handled the grocery chain’s produce operations.

Lane, a member of the Tennessee Legislature at the time, replied, “Those checks aren’t phony. Just the names on them is, but that’s all.”

A few weeks after the trial ended, one of the jurors, and reportedly a second one, were hired as clerks in one of Walker’s supermarkets. The grocery chain ceased operating in the mid-1980s.

March 2019

DICTA

17

BARRISTER BITES By: Angelia M. Nystrom, UT Institute of Agriculture

JD, LLM

JUST DESSERTS AND SWEET TEMPATIONS

As a general rule, I try to eat healthy and have even been known to give up sugar for months on end. But when February rolls around, nothing says “love” quite like a homemade dessert. I recall making a chocolate trifle a couple of years ago for Valentine’s Day. It included chocolate brownies with chocolate chips, chocolate pudding, whipped cream and English toffee bits layered in a trifle bowl. Hugh called it “heaven in a bowl,” but I called it “chocolate sin” because it was sinfully good. I had made it for Valentine’s dinner, and unfortunately (or fortunately), we had not eaten all of it. Hugh put the leftovers in a Tupperware container and placed them in the refrigerator. Try as I might, I could not sleep… the leftovers were calling my name.

“One bite,” I told myself, as I crept down the stairs. Sometime later, Hugh found me, sitting on the floor in front of the refrigerator with an empty Tupperware container and a spoon. I may or may not have even licked the container clean. It’s an easy dessert to make, and it is one that our family cannot resist.

We also love turtles in our house (the chocolate, caramel pecan kind). I don’t think I have the patience (or time) to make the ones like you find in the candy stores; however, my mom taught me an easy way to make them. You line a cookie sheet with Rollo candies and bake them until they are slightly soft. Then place them on top of the small square pretzels and press a pecan into the top. If you want to make them look like reindeers for Christmas, use regular pretzels. Instead of pecans, press green M&Ms for eyes and a red one for a nose. Voila, Rudolph!

now the person in the family who owns the metal-topped praline table. If you butter the table correctly, temper the candy correctly, and pour them correctly the pralines will lift right off the table and melt in your mouth.

None of those stale, hard pralines in our family! They were even part of the Louisiana goodies we offered at our wedding reception in 1980.”

Another favorite of Kelly’s is Kahlua Chocolate Chip Pecan Pie. “While Matt was in law school at LSU (1983), we took a really cheap trip to Cancun. It was $300 per person, all-inclusive fly out of New Orleans for a 4 day/3 night package. We came back with a huge bottle of Kahlua, with the pie recipe attached to it.”

Kelly says that it is a “special occasion” dessert. “I make it whenever I want the person I’m serving to say, ‘Man, that’s awesome!’ It never fails.”

Kelly admits that she has modified it a bit. “The first time I made it Matt said, ‘You need some pecans in this.’ I had used the recipe but the next time doubled up on the pecans. They’re always chopped so that you get pecans in every bite. In the early years, the pecans always came from cousins who grew them on the Mississippi gulf coast.”

Ashley Strittmatter is also famous for her desserts. “I have four children, so ‘quick and easy’ is key when it comes to cooking. One of my favorites is chocolate-dipped Peeps. Now that Peeps are available almost all year, I can make them pretty much any time. To make them, I simply get the meltable chocolate that is sold in the fruit section at the grocery store, heat it in the microwave, and then dip the Peeps. You can place them on waxed paper until the chocolate sets, and then they are ready to eat. My mom started making these years ago, and they have become a ‘go-to’ when the kids have parties or when they have friends over. Who doesn’t love chocolate and marshmallows?!?”

They truly are my favorite candies.

When my mom asked what I wanted for Christmas this year, I told her that I wanted a big container of turtles. She ended up making me a very large container of them as one of my Christmas gifts. I ate so many that I made Hugh take the remainder to his office so that I would not be tempted!

Kelly Frere has a similar love of making desserts, and she has become quite famous for them. “My absolute favorite dessert to make is pralines,” says Kelly. “My earliest memory is my grandmother in New Orleans teaching me how to get the temperature just right before I started to drop them straight onto her metal table top in her kitchen. It takes practice. And, a strong arm.”

In the Frere house, they are a February treat. “Because they are not easy to make I usually make them around Mardi Gras. I order the individual wax paper praline bags from New Orleans. It keeps them from sticking, which means they are always perfectly good.”

Ashley continues, “Another favorite at our house is home-made kettle corn. Again, my mom taught me to make this, and it is great when the kids have friends over… or when we just want a quick sweet treat.

To make it, heat vegetable oil in a large pot over medium heat. Once hot, stir in sugar and popcorn. Cover, and shake the pot constantly to keep the sugar from burning. Once the popping has slowed to once every 2 to 3 seconds, remove the pot from the heat and continue to shake for a few minutes until the popping has stopped. Pour into a large bowl, and allow to cool, stirring occasionally to break up large clumps. I usually end up making several batches because the kids cannot get enough of it.”

May your February be filled with sweet temptations!

Kelly continues, “I have a pretty good use of the Louisiana food “language” because both my and Matt’s families come from there, but the reason these pralines are special is because, after all these years, I am

18

DICTA

March 2019

VITE ET CREDE By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C. By: Chris McCarty Lewis, Thomason, King, Krieg & Waldrop, P.C.

INVESTMENT OPPORTUNITY

The word “flip” has always been a utility player. It is a noun, a verb, an adjective, a rude gesture, and an expletive in four letters. It also has done great marketing. To date, it has spawned nearly a dozen TV shows: “Flip or Flop,” “Flip or Flop Atlanta,” “Flipping Vegas,” “Masters of Flip,” “Zombie House Flipping,” “Flipping Virgins,” and the original “Flip that House,” to name a few. The American viewing public has gone flipping crazy.

Why? Everyone wants to invest in something that will double their money in 30 days. Get in, get out, make money. That’s how flipping works.

But, that is not how the practice of law works. If you want to build a great attorney, the “get in, get out, make money” philosophy doesn’t work. It is an investment opportunity that takes years before you see a return. Here are two examples.

I was sitting here this morning at the same desk I sat at when we worked together. In trying to consider how to honor my late friend and mentor, the answers actually came quite quickly. One, I will continue to practice every day the way he taught me to, with respect toward everyone from court clerks to judges. Two, I will remind others, both in my own firm and in the Bar as a whole, to be good mentors. Treat those starting out with the same care that you so wanted/needed early on in your own career.

I will. For Dennis.

You Can Sit Down Now, by Melissa B. Carrasco

For Dennis, by Chris W. McCarty

The first time I ever went to Court was to argue a Motion to Dismiss in front of the Honorable Telford E. Forgety, Chancellor, of the Sevier County Chancery Court. I was defending and less than a year out of law school. Opposing counsel was from a large, Nashville firm, had been practicing law since the beginning of time, and for whatever reason (most of them legal) wanted to dismiss our client’s case.

A few weeks ago, I called my friend and mentor, Dennis Jarvis, about the KBA’s upcoming Golden Gala. Dennis had seen his health decline over the past few years, but I wanted him to know I was ready to be his chauffer if he wanted to attend the Gala. As always, Dennis was glad to receive a call, noting he would let me know if he decided to take my offer.

Cheryl Rice volunteered to go with me. It wasn’t her case or her client. She just volunteered. She drove so that I could obsess over my notes. She helped me find the courtroom (who knew you had to go down those stairs), and when our case was called, she sat next to me at counsel table.

On February 6, 2019, at approximately 12:30 a.m., my friend and mentor, Dennis Jarvis, went on to a bigger and better gala. One where he was certainly welcomed by open and loving arms.

I only know how to be a lawyer because of Dennis Jarvis. For the latter part of his career, I was Dennis’s driver, his bag holder, and his protégé. Most importantly though, I was someone Dennis both cared for and respected, as he made that clear each and every day we worked together.

Dennis showed respect to all his law partners at Lewis King, and to other members of the Bar as well. I can remember once going into his office very early in my career, excited that an opposing lawyer missed a deadline to respond to our discovery requests. I wanted to file an immediate Motion to Compel. Dennis smiled and said, “Nah, just give him a call.” He would go on to do that a lot during the early part of my career, hitting the brakes ever so friendly when I was ready to stick it to another lawyer. Gently reminding me this was not a war, and those other lawyers were not my enemies.

As Dennis started to openly discuss retirement, he also started making sure his young and sometimes aggressive protégé got to know clients. Dennis would make sure I was with him at every meeting, and at every lunch. I recall being honored as we sat across from one such client and Dennis assured him that “young McCarty here” could be trusted with any work moving forward. I neither asked nor expected Dennis to do that for me. He just always went above and beyond because that was Dennis’s nature, and I remain thankful to him every day.

March 2019

Opposing counsel had his turn at the podium. The law clearly was on his client’s side in the most coherent possible way. He answered the Chancellor’s questions. It was quite convincing, and if counsel table wasn’t at the front of the courtroom, I probably would have snuck out.

But, then, Chancellor Forgety said he would hear from the plaintiff, and that was me, and I had to stand at the podium.

I don’t really know what I said. All I know is that, at some point, my brain and my body detached, and there I was still standing at the podium. That is when Cheryl leaned over and whispered, “You can sit down now.” And, so I did…and we survived a Motion to Dismiss…and Cheryl drove us back to the office, which was a good thing because I don’t think my feet were operational at that point in time.

That is just one story. I could tell you hundreds more of people in my firm who marked up my pleadings, vetted my arguments, made a phone call for me, or told me to go home and sleep on it – the work will be there tomorrow. Yes, it will, and so will I, because of these lawyers.

In one respect, building a great attorney is like flipping houses.

You rip up the shag carpet only to find – not the gorgeous 18th century hardwood that was promised – but the body of a mummified possum.

Then you deal with it…and you work through the next thing…and the next thing…until finally, the truly great things about that house (or that attorney) are revealed. It just won’t happen in 30 days or 60 days. Keep leading. Keep teaching. Keep mentoring. The return on your investment will be priceless and far reaching. Seeing is believing.

DICTA

19

SCHOOLED IN ETHICS By: Paula Schaefer Associate Dean for Academic Affairs & Professor of Law University of Tennessee College of law

BEWARE OF THESE MISTAKES WHEN PROMOTING YOUR PRACTICE TODAY

The modern era has ushered in a variety of ways for lawyers to promote our practices. From social media to firm websites, attorneys are able to reach potential clients in ways beyond the yellow pages. With these new forms of advertising, we must be mindful of our obligations under the professional conduct rules. This column considers some of the ethical pitfalls attorneys face when advertising and soliciting clients today.

It is worth noting at the outset that some of the older professional conduct rules may no longer seem like a perfect fit for modern forms of advertising. But until the Tennessee rules are updated, attorneys must be thoughtful about applying dated rules to current forms of communication. In fall 2018, the ABA amended the advertising and solicitation Model Rules of Professional Conduct. In some cases, those rules may be a useful guide for attorneys engaged in online advertising and solicitation of clients.

Are Your Social Media Profiles, Firm Website, and Other Digital Communications About Your Practice Misleading?

Rules 7.1 through 7.6 are often referred to as the “advertising rules,” but the rules regulate more than advertising in the traditional sense. Rule 7.1 specifically addresses a lawyer’s “communications about the lawyer or the lawyer’s services.” Thus, the rule’s prohibition on false and misleading communications encompasses more than advertisements.

The recently amended Model Rule 7.2 emphasizes the breadth of the rules’ reach by stating that a lawyer may communicate information about the lawyer’s services “through any media.”

Lawyers should think broadly about all of the ways they market their services, and then scrutinize the content of the information in those communications for its accuracy. Attorneys must be especially careful about information that third parties (like staff or clients) are able to add to a lawyer’s communications. For example, LinkedIn allows connections to endorse a lawyer’s skills, and those endorsements can be displayed on the lawyer’s profile page. Accordingly, you should review your LinkedIn profile to make sure that the skills listed there are accurate.

Are You Paying for Recommendations in Violation of Rule 7.2?

Lawyers may not pay for recommendations, except the cost of advertisements, charges of a registered intermediary organization (defined in TRPC 7.6), and sponsorship fees to non-profit organizations.

TRPC 7.2(c).

In the digital age, a lawyer may wonder where the line is between a proper payment for an ad and an improper payment for a recommendation. The Model Rules of Professional Conduct provide guidance that may be useful to a Tennessee attorney trying to answer this question. The Model Rules have clarified that paying for client leads generated, including through an online service, is acceptable as long as that lead generator is not recommending the lawyer’s services and is not otherwise violating the rules (such as through misleading advertising).

Model Rules of Prof ’l Conduct, R. 7.2, cmt. 5. The comment explains, “To comply with Rule 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making a referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral.” Id.

In a 2018 Formal Ethics Opinion, the Tennessee Board of Professional Responsibility (BPR) provided additional guidance about an attorney’s use of a website (owned and operated by a company) on which potential clients describe requested legal services and lawyers/law firms submit quotes for the cost of the legal services. The BPR opined that use of such a website is appropriate and not an impermissible lawyer referral service where the client is free to select the lawyer, the company makes no recommendation or referral, and the clients and lawyers pay the business that runs the website a fixed fee. Tennessee Formal Ethics Opinion 2018F-165 Legal Services Websites.

Do You Retain Copies of Your Ads and Solicitations as Required by Rule 7.2 and 7.3?

Tennessee RPCs 7.2 and 7.3 require that lawyers keep copies of advertisements and written solicitations for a period of two years. TRPC 7.2(b), 7.3(b)(7).

Do these requirements apply to websites, email messages, and social media posts? The Rules and comments leave no doubt that the answer is yes. TRPC 7.3(b)(7), concerning solicitations, provides that every “written, audio, video, or electronically transmitted communication . . . shall be retained by the lawyer.” Comment 5 to TRPC 7.2 states that the BPR may adopt guidelines concerning how an attorney should retain certain types of ads, “including websites, e-mail, or other electronic forms of communications.” A search of the BPR’s website does not reveal special guidance about how to retain such materials. However, the BPR does remind attorneys that there is no longer a requirement that such materials be sent to the BPR (as required under a prior version of the Tennessee RPCs).

Do Your Written, Recorded, and Electronic Solicitations to Potential Clients Contain the Words “Advertising Material” and Meet Other Requirements of Rule 7.3?

When a Tennessee lawyer seeks employment from a potential client through written, recorded, or electronic communication, TRPC 7.3(c) requires that the communication satisfy numerous requirements.

Many of the provisions appear aimed at communications sent through the mail, addressing issues such as the language to be included in sample contracts, format restrictions on the communication (they cannot be in the form of pleadings), information to be included and not included on the envelope, and prohibited methods of delivery (such as registered mail or courier). TRPC 7.3(c).

Other provisions of TRPC 7.3(c) apply equally to electronic communications. The words “Advertising Material” must appear at the beginning and ending of any solicitation. TRPC 7.3(c)(1). And a communication seeking legal employment in a specific matter must disclose how the lawyer obtained the information that prompted the contact and the first sentence of the communication must state, “IF YOU HAVE ALREADY HIRED OR RETANED A LAWYER IN THIS MATTTER, PLEASE DISRGARD THIS MESSAGE.’ TRPC(c)(6).

Even though these disclaimers may seem onerous in an electronic communication through social media, for example, they are still required in Tennessee.

(Continued on page 21)

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

20

DICTA

March 2019

BAR HOPPING By: Brady Cody Lewis Thomason

Bar Hopping highlights one of the many beautiful courthouses around the State each month. The trick? It is up to you to figure out where. Congratulations to T. Harold Pinkley and Sarah Swanson Higgins for correctly identifying the old Knox County Courthouse before the east and west wings were extended.

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

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

Photo Ops

PRO BONO DEBT RELIEF CLINIC On February 9th, the KBA’s Bankruptcy Section, in partnership with Legal Aid of East Tennessee and with the support and involvement of United States Bankruptcy Judge Suzanne H. Bauknight, held a Pro Bono Debt Relief Clinic to provide pro bono legal services to income eligible consumer debtors.

Thomas H. Dickenson, Gregory C. Logue, Maurice K. Guinn, Wade M. Boswell, Courtney Walker, James R. Moore, M. Aaron Spencer, Zachary Burroughs, Kevin S. Newton, Kimberly Cambron, Robert Dziewulski and Oliver Cisowski, and law student Tami Schack participated in the clinic and assisted fifteen clients.

BEWARE OF THESE MISTAKES WHEN PROMOTING YOUR PRACTICE TODAY (Continued from page 20) Final Thoughts

Perhaps the most important lesson for today’s attorney is to think broadly about how you are promoting your practice. Even if you are not paying for a billboard or a print advertisement, you are probably engaged in conduct that is subject to the requirements of Tennessee’s Rules of Professional Conduct. From there, look at Rules 7.1-7.6 to ensure that you are meeting those requirements in your communications, whatever their format.

March 2019

1

DICTA

Tennessee lawyers should note well that we have a unique blackout period that prohibits any solicitation within 30 days of an accident, filing of divorce or legal separation, or disaster that is the subject of the solicitation. TRPC 7.3(b)(3).

21

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

ARCHIBALD ROANE: SOLDIER, GOVERNOR, LAWYER Introduction:

facility to organize and present them in a brief and lucid manner. 4

If you ever find yourself strolling through Farragut’s Pleasant Forest Cemetery, you’ll probably come across a monument honoring Archibald Roane. The Monument reads:

A Governor is Born:

Archibald Roane: 1759-1819. Revolutionary Soldier at the Surrender of Cornwallis. Member of Tennessee Constitutional Convention, 1796. Superior Judge, 1796; Supreme Judge 1819;l Governor 1801-1803. Erected by the State of Tennessee, 1918.

Prior to 1918, Archibald Roane was laid to rest in an unmarked grave. This strikes me as extraordinary, considering the fact that as a teenager, he quit school and joined the Continental Army, and in so doing, claimed the distinction of being with George Washington on the night of December 25, 1776, when the ragged American army crossed the Delaware River. Historians tell us that this was done in high, freezing winds, and included a nine-mile march on frozen ground, culminating with a successful attack on the British Army (who were caught complete unawares), in Trenton, New Jersey. 1 Later, Archibald would be on hand to witness the British surrender at Yorktown while an American army band played “The World Turned Upside Down.” 2

After several years at the Bar, Roane was elected the second governor of Tennessee in 1801. During Roane’s administration, Tennessee grew and prospered, and under his direction was divided and expanded to three congressional districts. Further, several new counties were created, namely Anderson, Clairborne, Jackson, and Roane, the latter being named for the new governor. It was Roane who commissioned the creation of the State’s seal, which was produced by William & Matthew Atkinson of Knoxville, who were paid $100 for manufacturing both the seal and the press to use it. According to the Tennessee Archives, the following directive was issued by Governor Roane upon receipt of the seal: “Pay to William and Matthew Atkinson one hundred dollars in full compensation for making the great Seal of the State, and a press to work the same, agreeably to their contract .with the Legislature, and this shall be your warrant for so doing. In testimony whereof I have hereunto set my hand and caused the great Seal of the State to be affixed at Knoxville this 24th day of April 1802.” 5

As one unknown wit put it, “Governor Roane first applied the seal on April 24, 1802, to seal the deal of the seal!” Before this time, both Governor Roane and his predecessor John Sevier used their personal seals when executing official documents. Governor Roane served as Governor until 1803 when he was defeated by former Governor John Sevier.

A Lawyer is Born:

Upon returning from the battlefield, Roane continued his education at Liberty Hall Academy at Lexington, Virginia, remaining there as a professor of language and mathematics. In 1788, he moved to East Tennessee, then part of the North Carolina frontier, where lawyers were in demand. After spending time studying law on his own and reading law with an established attorney, he had the distinction of being one of five young men, in a group that included Andrew Jackson, who stood in a rustic log courthouse in Jonesboro to take the oath of attorney and be admitted to the Bar of Washington County. When Tennessee became a Territory of the United States in 1790, Roane served as the first attorney general of the Hamilton District and, when Tennessee was admitted into the Union in 1796, Roane was a member of the convention that framed the Constitution for the new state. 3

A true proponent of the law, he once advised a prospective lawyer that “one should not study the law merely to acquire knowledge or position, but as a means to engage in the legal profession with vigour [sic] and perseverance.” The law, he continued, is not for those who wish to “bury their talents in the earth, but to look forward to the time when you may be called by your fellow citizens to assist in moving the wheels of government.” It was said of Roane that he acquired an enviable reputation as a good lawyer whose marked strength was a mind that quickly identified the important and strong points of a case, with a

22

A Judge is Born:

After leaving the Governor’s office, it was to the Bench for Archibald Roane. Over the next few years, he served as a Circuit Court Judge, and a judge of the Superior Court of Errors and Appeals. In a letter written to his cousin prior to his death, Archibald had this to say about his career and adopted home: “Very soon after settling in this region, I obtained a license to practice law, and in that character, had tolerable success. I do believe, however, that I have obtained the confidence of my fellow citizens.” Archibald Roane died in his sleep on January 18, 1819, in Knox County. 6

Crawford, C. W. (Ed.). (1979). Governors of Tennessee: 1790-1835 (Vol. 1). Memphis State University Press.

2

Id. 62 3

McBride, R. M., & Robison, D. M. (1975). Biographical Directory of the Tennessee

General Assembly: 1951-1971: 1951-1971 (Vol. 5). Tennessee State Library and Archives.

4

Ambuscade, S. (1956). Nashville Tennessean Magazine.

5

Crawford, C. W. (Ed.). (1979). Governors of Tennessee: 1790-1835 (Vol. 1). Memphis

State University Press.

6

Goodpasture, A. (1902). The American Historical Magazine (Vol. VII).

1

DICTA

March 2019

barrister bullets BARRISTERS MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month at the Bistro by the Bijou (807 South Gay Street). Social time begins at 5:00 p.m., and the meetings begin promptly at 5:15 p.m.

The next meeting will be held on March 13, 2019.

There are many opportunities to get involved, and you are encouraged to contact Barristers President Mikel Towe (mtowe@lewisthomason.com) or Vice President Allison Jackson (ajackson@emlaw.com) for more information.

BARRISTERS MARCH MADNESS SOCIAL HOUR Please join the Barristers for a March Madness Social Hour on March 21, 2019, from 5:00-7:00 p.m. at Skybox Sports Bar and Grill (415 S. Gay Street). Come have a drink or grab a bite with your friends and colleagues! This is a great opportunity to network, meet new faces, and get involved.

RSVP by clicking on March 21st on the KBA Events Calendar at www.knoxbar.org.

LAW & LIBERTY AWARD NOMINATIONS - DEADLINE: APRIL 12, 2019 The Law Week and School Outreach Committee is seeking nominations for the Law & Liberty Award. All nominations must be received by April 12, 2019. The recipient should be visible to the legal profession and local bar association.

The recipient should strive to foster and to maintain good relationships between the legal profession and the community, work to advance the understanding of the law and legal processes in the non-legal community, set an example of good citizenship, make time for volunteer work within the legal profession and otherwise, evidence high professional standards, express concern for the safeguard of personal, political, civil, and religious liberties, and be someone whose work is not normally recognized. Nominees do not have to be attorneys. Consider those in your firm, local

Address Changes Lance K. Baker BPR #: 032945 The Baker Law Firm 550 W. Main St., Ste. 600 Knoxville, TN 37902-2567 Ph: (865) 200-4117 lance@lbakerlawfirm.com

civic and religious organizations, or the community who have worked to improve our legal system and protect civil liberties. Finally, please submit suggested nominees to the Law Week and School Outreach Committee Co-Chairs, Luke Ihnen (lihnen@acslaw.org) or Zack Walden (zwalden@ eblaw.us).

DONATE TO THE PROFESSIONAL CLOTHING DRIVE Spring Cleaning? Make room in your closet and help others at the same time! The Hunger & Poverty Relief Committee is collecting professional clothing from April 8-22, 2019. Requested items include: slacks and skirts, suits, blouses and shirts, dresses, ties, and dress shoes. Multiple donation locations will be available, including locations on Gay Street and Main Street, at law schools, and in West Knoxville. Please do not donate any items with holes, stains, or rips. Women’s clothing will be donated to the YWCA and Connect Ministries Career Closet. Men’s clothing will be donated to Knox Area Rescue Ministries. For more information, please contact the Hunger & Poverty Relief Committee Co-Chairs, Meagan Collver (mdaviscollver@londonamburn.com) or Jason Collver (jcollver@utk.edu).

SUPPORT THE VOLUNTEER BREAKFAST The Volunteer Breakfast occurs on the fourth Thursday of every month at 6:15 a.m. at the Volunteer Ministry Center (511 N. Broadway). We serve breakfast to about thirty to forty individuals and finish our work around 7:30 a.m. The Barristers Volunteer Breakfast Committee needs volunteers to prepare and serve food and sponsor each breakfast. We need four or five volunteers each time, and sponsorships are $150.00. You can volunteer, sponsor a breakfast, or both! Please join us in serving the needy in our community. If you would like more information about volunteering or sponsoring a breakfast, please contact the Volunteer Breakfast Committee Co-Chairs, Paul

STAFF THE VETERANS’ LEGAL ADVICE CLINIC The Veterans’ Legal Advice Clinic is a joint project of the KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox County Public Defender’s Community Law Office, the University of Tennessee College of Law, Lincoln Memorial University- Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. We serve approximately twenty to thirty veterans each month who have a variety of legal issues, including, but not limited to, family law, landlord/tenant, bankruptcy, criminal defense, consumer protection, contract, child support, and personal injury issues.

We need attorney volunteers for the next two (2) clinics, which will be held on March 13 and April 10 from 12:00 to 2:00 p.m. at the Knox County Public Defender’s Community Law Office (1101 Liberty Street). Register to participate by clicking on March 13 or April 10 in the Event Calendar at www.knoxbar.org.

GET SOME “BOWLABLE HOURS” Join the Barristers for the 2nd Annual Barristers “Bowlable Hours” (Bowling Night) on April 25, 2019, from 6:00 to 8:00 p.m. at Main Event (9081 Kingston Pike). Registration is open to all KBA members, law students, spouses, significant others, and friends. Pricing is $30.00 per person and includes two hours of bowling, shoe rental, and food/beverage by Main Event. A cash bar will be available. There will be prizes for the highest score, most strikes, and more! Register through the KBA website by April 18, 2019.

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

Linda Garner Betz BPR #: 029755 Ooten, Betz & Baril 410 N. Cedar Bluff Rd., Ste. 101 Knoxville, TN 37923 Ph: (865) 888-8888

Jason K. Baril BPR #: 024071 Ooten, Betz & Baril 410 N. Cedar Bluff Rd., Ste. 101 Knoxville, TN 37923 Ph: (865) 888-8888

Sarah Magdalen Booher BPR #: 035051 OEB Law, PLLC 706 Walnut St., Ste. 700 Knoxville, TN 37902-2324 Ph: (865) 546-1111 sbooher@lawoeb.com

Michael S. Bernard BPR #: 029051 OEB Law, PLLC 706 Walnut St., Ste. 700 Knoxville, TN 37902-2324 Ph: (865) 546-1111 mbernard@lawoeb.com

John M. Boucher, Jr. BPR #: 022446 Bridgefront Law Group, PLLC 616 W. Hill Ave., 2nd Fl. Knoxville, TN 37902-2703 Ph: (865) 321-8876 jmboucherlaw@gmail.com

March 2019

E. Wehmeier at pwehmeier@adhknox.com or Matthew Knable at knablelaw@gmail.com, or sign up at http://www.knoxbar.org/KBA-News/helpvolunteer-ministries.

Courtney Cotter BPR #: 036944 Ooten, Betz & Baril 410 N. Cedar Bluff Rd., Suite 101 Knoxville, TN 37923 Ph: (865) 888-8888

Mark R. Orr BPR #: 023813 Bridgefront Law Group, PLLC 616 W. Hill Ave., 2nd Fl. Knoxville, TN 37902-2703 Ph: (865) 321-8876 markrorrlaw@gmail.com

Timothy G. Elrod BPR #: 023616 OEB Law, PLLC 706 Walnut St., Ste. 700 Knoxville, TN 37902-2324 Ph: (865) 546-1111 telrod@lawoeb.com

William J. Sivyer BPR #: 036207 OEB Law, PLLC 706 Walnut St., Suite 700 Knoxville, TN 37902-2324 Ph: (865) 546-1111 wsivyer@lawoeb.com

Matthew D. Ooten BPR #: 032287 Ooten, Betz & Baril 410 N. Cedar Bluff Rd., Ste. 101 Knoxville, TN 37923 Ph: (865) 888-8888

DICTA

Meredith E. Slemp BPR #: 033548 7th Judicial District Attorney General’s Office 101 S. Main St., Ste. 300 Clinton, TN 37716-3619 Ph: (865) 457-5640 meslemp@tndagc.org Douglas J. Toppenberg BPR #: 012273 Kennerly, Mongtomery & Finley, P.C. 550 Main St., Suite 400 Knoxville, TN 37901-0442 Ph: (865) 546-7311 doug@kmfpc.com

23

B I L L & P H I L’ S G A D G E T S By: Bill Ramsey Neal & Harwell By: Phil Hampton Founder and CEO, LogicForce Consulting

CONSUMER ELECTRONICS SHOW 2019

As we write, we are about 30,000 feet above the Grand Canyon.

That’s right; we are returning from our annual trek out to Las Vegas for the biggest technology show in the world, the Consumer Electronics Show (CES). CES is a trade show put on by the Consumer Technology Association that brings together the top names in technology from around the world as well as exciting new start-ups that few have even heard about…yet. The show takes over the Las Vegas Convention Center and much of the strip - as geeks, like us, converge in the desert to ooh and ahh over bleeding-edge technology that is trying to break into the mainstream.

The scope of this show is so massive that it is impossible to see everything, even if you stay for all four days of the mega event. This year’s show had over 180,000 in attendance and over 4,400 companies exhibiting in 2.7 million net square feet of exhibit space. We packed our tennis shoes, extra vitamins, and Advil and plunged into the sea of geeks that swarmed Vegas.

If we had to sum up our overall impressions from the show after countless hours on the exhibit floor and thousands of steps on our Fitbit watches, we would say that the following technologies look to be the most exciting, promising, and impactful for the future: 5G, autonomous driving vehicles, Artificial Intelligence(AI) and robotics, flexible screens and TVs, gaming (we are not interested), and a massive proliferation of smart devices (most powered by Alexa) for everyday use.

5G is the buzzword du jour at CES and everywhere else in tech world these days. So what is 5G? Well, if you have heard of 4G (which is probably what your smartphone is operating on right now), 5G is about 10-20 times faster. 5G stands for “fifth generation wireless” and represents a new standard for sending and receiving data over cellular networks.

All the major cellular carriers are building out their 5G networks in 2019, and consumers are already beginning to see a few 5G-compatible smartphones being advertised (unfortunately, your shiny new iPhone XS, and other new phones you may have purchased recently, will not be compatible with the new 5G network when it comes online). So, leaving the technical details behind, what does 5G mean for consumers? Industry leaders tell us that, with its greatly increased transmission speeds and low latency, 5G communication will enable users to download a full-length HD movie in mere seconds; enable doctors to perform remote surgeries; and finally make self-driving cars a reality. One can only imagine other applications that will explode as 5G moves into the mainstream in 2019 and 2020.

Autonomous, or self-driving, cars continue to dominate the automotive section of CES. We believe this technology is moving closer and closer to reality and that 5G will speed its acceptance into the mainstream. Most of the big car companies that exhibited at CES showed us fancy, sleek concept cars of the future that are built not for driving but for spacious comfort, to act as mobile offices, and even entertainment venues. Moreover, we were amazed at the vision for flying

24

taxis that we saw as we toured Bell Helicopter’s air taxi, the Bell Nexus.

We are told that Uber is partnering with Bell to design a flying taxi service that will be operational by 2023. Jetsons, here we come.

We jokingly remark that we are pioneers in the field of “artificial intelligence” as we have been “artificially intelligent” for years. (That is, our intelligence is only artificial.) But AI is no joke and is making a mark in all kinds of consumer products from cars to shoes. We saw smart suitcases that “magically” follow their owners and crowd detection camera systems that analyzed our faces in a huge crowd and deduced certain personal characteristics such as gender, age, and weight. We saw robot butlers that can converse with a hotel guest as effortlessly as a human (or maybe more so) and smart walkers that use AI and technology to enable seniors to live more independent lives.

The TVs we see at CES always make us drool. This year’s array was no different as the major TV manufacturers showcased their massive 8K displays that looked so realistic you wanted to just walk into the scene they were displaying on the screen. But probably the most impressive TV we saw was LG’s 65-inch OLED roll-up TV. That’s right; this flexible TV rolls up completely out of sight in its base when not in use. It magically rises from the base when turned on and is wafer thin. This amazing TV like none we’ve ever seen before will be coming to retail shelves sometime in mid-2019, we’re told.

What makes CES so exciting for us is seeing the explosion of new consumer products that take advantage of advancing technology to improve our daily lives in and out of the office.

One of the most enjoyable sections of the show is an area known as Eureka Park where start-up companies from around the world display their brand new tech products trying to gain consumer acceptance. Here we saw a devices that in every category imaginable.

There was a “smart backpack” that charged your phone, acted as a global mifi, had a rear-facing camera, a GPS-location tracker and much more.

There was a smart desk that connected everything with only one cable, that had three monitors, and a computer could be controlled simply by hand gestures. There were drones for every imaginable application, turntables that connected to speakers wirelessly, a plethora of gadgets for pet care, health-monitoring devices designed specifically for the elderly, and so, so much more. Some of the items were so outrageous they made us laugh. Other made us want to buy the prototype immediately.

In our opinion, CES 2019 introduced and showcased more innovative and creative inventions than those on display in years at the annual geekfest. We were impressed and excited. We will discuss some of the items we saw in future articles.

See you next month.

DICTA

March 2019

WELL READ By:

OEB Law, PLLC

EDUCATED “Don’t you ever get sick of people at church asking you how paralegal school is going?”

I remember being startled when my friend posed this question to me sometime during our first year of law school. When I announced to my small, Episcopalian congregation that I was going to law school, there were no thoughts that I was overstepping my bounds or going against the Lord’s will. We had a disproportionate number of attorneys in our church, and I think their general question was what had taken me so long to get there.

The experience was very different for my friend who attended an extremely conservative church. It never occurred to congregation members there that she would want to be a lawyer in her own right. She was expected, if she had to leave the confines of her family and home at all, to go out in the world to do job appropriate for women (which meant being no more than support staff for the male attorney).

I hadn’t given this conversation with my friend much thought over the years. Until I read Educated. Educated is nothing short of a painful, shocking, beautiful, compelling read that I haven’t been able to get out of my head since I read it over a month ago.

If I took anything from her book just short of 350 pages, author Tara Westover demonstrates to her readers not only how lucky she was to escape her survivalist, fundamentalist, Mormon childhood alive, but also just how hard she fought to ultimately receive a PhD from Cambridge University. Born sometime in September of 1986 (the family is unsure of her exact birthdate because she wasn’t born in a hospital and didn’t receive a birth certificate until she was 9 years old), Westover grew up in rural Idaho.

Her father prohibited her and her siblings from attending public school, believing it was run by the Illuminati. In fact, he used the standoff at Ruby Ridge to paint a manipulated and horrific story to show his children just how adverse the government was to them and how they were constantly in danger of being taken away from their loving, God-fearing parents.

What’s more, the controlling patriarch also forbade any western medical treatment. Every ache, pain, and injury was treated herbally by the healer and midwife mother; the author herself would not go to a real physician or take over the counter pain reliever until she was an undergraduate student at Brigham Young University. The family was no stranger to injury, either. Early in the book, Westover describes a car wreck as the family returned to Idaho from Arizona in the middle of the night.

Her brother fell asleep at the wheel, and Westover believes her mother suffered a traumatic brain injury. She took to the basement for several weeks, treating herself with sleep and essential oils. Later in the book, another brother was working in the family scrap yard draining fuel tanks, when an explosion occurred, burning his entire leg. Westover was left to care for her brother, putting ice on the wounds, until their mother returned from a complicated childbirth in another state. Some years later, yet another brother was nearly killed in a motorcycle wreck, amongst his other injuries.

Westover was not immune for injury or incident, either. The same brother verbally and physical abused Tara, their other sister, and his girlfriends throughout her childhood, frequently waking her up in the middle of the night choking her because she was a “whore” for wearing mascara and talking to a less devout Mormon boy in town. When she finally confronted her parents about her brother’s abuse when she was in college, her father demanded that she recant her allegations against her brother, since she came to him with no evidence that the brother had abused her in any way (despite her mother witnessing multiple events throughout her upbringing).

March 2019

Sarah M. Booher

It was the brother who fell asleep at the wheel who broke the mold and showed Westover that there was an escape from that rural life they were born into. He had gone to college and did not believe that their lack of formal education was any reason for her to not attend, also. He encouraged her to buy textbooks with her meager earnings at odd jobs around town to learn enough math and English to take the ACT and begin pursuing a higher education. College proved difficult, yet eyeopening, both in and out of the classroom. Before college, Westover didn’t shower but two or three times a week, and she didn’t wash her hands. She didn’t care about food rotting in the refrigerator, and she was shocked by how mainstream her fellow Mormon roommates were. Inside the classroom, Westover was reading her textbook and came across a word she didn’t know or understand. She raised her hand and said she didn’t know what it meant. The word was “Holocaust.” Needless to say, neither her hygiene nor her classroom questions that others regarded as inappropriate jokes won her a lot of friends, so the learning curve had to be quick and steep for Westover to not only endure, but flourish.

Only 32 years old now, it is clear that from the memoir that Westover is still processing the events that have unfolded in her life and led her to where she is today. She and her other two brothers who pursued an education are estranged from the rest of the immediate family, both out of necessity and at their father’s command. It is clearly a very painful reality for Westover, as she loves her family, but still struggles with their religious and philosophical extremism. She is still obviously finding her voice.

Nonetheless, this book is a must read for everyone, if for no other reason than to examine our own assumptions about family, education, convictions, love, opportunity, and how we support one another in this shared journey called life.

DICTA

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

PROHIBITION, PRE-EMPTION AND POT But I would not feel so all alone Everybody must get stoned1

It’s been over fifty years since Bob Dylan insisted that we all join him in his favorite recreational activity. What was a radical idea in 1966 became public policy thirty years later – at least in California.

Now, it sometimes seems that everybody is, indeed, getting stoned, and doing so legally.

Almost everybody, anyway. To date, thirty-three states have legalized medical marijuana. Twenty-two states and the District of Columbia have decriminalized possession of small amounts. And ten states (plus D.C.) have authorized recreational use.2 Other states may soon follow suit – including Tennessee, where several bills loosening marijuana prohibition are currently pending.3

On the other hand, the national government maintains a blanket prohibition. The wacky weed is designated a “Schedule 1” drug in the Controlled Substances Act,4 that is, a drug that has no medical use and a high potential for abuse.

This presents several constitutional issues, most notably something we call federalism. Back in 1787, James Madison and his fellow Framers superimposed a new national government upon the thirteen existing state governments. This created a strange duality that exists to this day: as you read this article, you are simultaneously governed by the laws of at least two entities – the State of Tennessee and the United States of America.5 If you violate Tennessee’s laws, the local cops or the THP might arrest you; if you violate a national law, you may get a visit from the Feds.

Inevitably, conflicts will arise between these two legal systems. To his credit, Madison recognized this, and, being an ardent nationalist,6 he reconciled those conflicts in favor to of the national government: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.7

With all due respect to those who espouse “states’ rights,” this provision is pretty specific. If a conflict arises between national and state law, it’s clear who the big dog is. This gives rise to a doctrine commonly called “preemption.” While it takes various forms, it basically means that national law will trump any state or local law to the contrary.

So, if you find yourself in, say, Colorado, you should obey national law, even though state law allows you to indulge, right? Well, yes. I’m not encouraging anyone to violate national drug laws. As a practical matter, however, people get away with doing so, rather openly, every day. How can that be?

It boils down to one word: forbearance. The national government, whether headed by Clinton, Bush II, Obama, or Trump, has increasingly declined to enforce the national prohibition of marijuana. This has effectively left the matter to the states, which have increasingly tolerated the growth, sale and use of pot. Indeed, many states have gone beyond mere toleration; they have regulated and taxed cannabis, to the increasing benefit of their treasuries.8

Enter Howard Wooldridge. Howard is a retired police detective,

someone who spent many years fighting the War on Drugs, something he now considers immoral. Not only has prohibition failed, Howard maintains, it has wasted enormous amounts of resources – police officers who could be chasing murderers and rapists are instead riding around in helicopters looking for “a green plant.” Beyond that, it has given cops an excuse, even an incentive, to violate the civil rights of many of our citizens – especially young minority men – through the use of aggressive tactics such as “stop and frisk.” Indeed, Howard calls marijuana prohibition “the New Jim Crow,” since it sends so many young African-Americans to jail, stamping them as criminals before they are even out of school, preventing them from finding legitimate employment, leaving them with little alternative to a life of destitution and crime.

When Howard took up the cause of ending marijuana prohibition, his was a lonely voice. In the last few years, however, his dogged efforts have paid off, not only at the state level, but at the federal level, where Howard, with his signature cowboy hat and T-shirt (“COPS SAY LEGALIZE POT. ASK ME WHY.”) is a familiar presence in the halls of power. Indeed, in a recent interview on my radio show, Howard made the bold prediction that national prohibition of marijuana will soon end.9

How, I asked, could he be so sure? Wouldn’t a change to the Controlled Substances Act require a bipartisan consensus, something that is vanishingly rare these days? Yes, Howard replied, but both Republicans and Democrats have their reasons for supporting a change. Republicans are swayed by Tenth Amendment arguments – let the states decide how they will deal with the issue – while Democrats are concerned with the social and political costs of prohibition.

Forging consensus in a polarized political environment?

Compromise? What a concept. James Madison would be proud. So would his buddy, George Washington, who distilled a lot of whiskey and grew a lot of hemp. And, somewhere, Bob Dylan is smiling.

Zimmerman, Robert, Rainy Day Women #12 and 35, Track 1 on his album, Blonde on Blonde (1966). “[A] ‘rainy-day woman’, as any junkie [sic] knows, is a marijuana cigarette.” Shelton, Robert, No Direction Home: The Life and Music of Bob Dylan, (2011) 224-225 (quoting Time magazine, July 1, 1966).

2

National Conference of State Legislatures, Marijuana Overview, December 14, 2018,

available at: http://www.ncsl.org/research/civil-and-criminal-justice/marijuana overview.aspx.

3

“Democrats introduce marijuana bills, including one to allow out-of-state prescription cards,” Nashville Tennessean, January 31, 2019, available at: https://www/ tennessean.com/story/news/politics/2019/01/29/tennessee-marijuana-bills-out state-prescription-cards/2712075002/. “Republican sponsors of medical marijuana

bill optimistic about chances of success,” Nashville Tennessean, February 6, 2019,

available at: https://www.tennessean.com/story/news/politics/ 2019/02/06/medical marijuana-tennessee-republican-sponsors-bill-optimistic-chances success/2792450002/.

4

21 U.S.C. 13.

5

You are, of course, also governed by the ordinances of the City of Knoxville and Knox

County, or whatever city or county you happen to be in at the moment. No confusion there.

6

At least at the time. Madison went through several phases, as I discussed with

Harvard Law School professor Noah Feldman on my public radio show. Your Weekly Constitutional, “The Three Lives of James Madison,” available at https://www. podomatic.com/podcasts/ywc/episodes/2018-03-20T11_58_50-07_00.

7

U.S. Const. art VI, § 2.

8

I discussed this phenomenon several years ago with Vanderbilt law professor Robert

Mikos, who studies federalism. Your Weekly Constitutional, “Recreational Marijuana,”

available at https://www.podomatic.com/podcasts/ywc/episodes/2013-03 31T18_52_07-07_00.

9

Your Weekly Constitutional, “Marijuana Update, 2019,” available at https://www. podomatic.com/podcasts/ywc/episodes/2019-01-29T08_00_32-08_00.

1

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

26

DICTA

March 2019

LONG WINDED By:

Jason H. Long London Amburn

LOVE & BASKETBALL

There are a lot of things going on in the news right now which would be excellent topics for a DICTA column. As I write these words, the government is a mere four days away from a second shutdown.

Robert Mueller continues his investigation with no current report as to when it may end or whether it is leading anywhere. Governor Lee was recently inaugurated and a slew of bills have been introduced in the General Assembly, ranging from the mundane to the sublime. Even within our own bar, we are generating all sorts of good stories. Wynne has taken over as president and we managed to immediately break her leg, apparently. The Golden Gala took place over the weekend and was a rousing success, honoring the true legends of our association.

However, please forgive me if I take a pass on all of these meritorious stories to take this opportunity to talk about two timely topics that I hold very dear to my heart and which are inextricably linked: college basketball and my father.

My dad, as I think I have mentioned before, was a big man (6’6” – and that’s in 1952 inches, today he would be something like seven feet). He was not a tremendous athlete, but he was a pretty effective basketball player, starting all four years for old East High. After high school, he continued to play in recreational and church leagues around Knoxville, coached children’s leagues, and earned extra money as a paid referee. Dad’s playing career came to an abrupt end in his late 30s when he was working for a newspaper down in Hollywood, Florida. The paper scheduled a charity game against a team comprised of former Miami Dolphin football players. Midway through the 1st period, a scuffle broke out as players jockeyed for a rebound. My dad was body slammed by former Pro Bowl running back, Mercury Morris, and his playing career ended on the spot.

One of, if not the most, indelible images from my childhood is walking in to our den on any given weeknight in the early 80s while a University of Tennessee basketball game was being played. Most nights, we would use the den as a family room to gather and play games or watch TV shows. However, during basketball season, when the Vols played, dad would take the room over. He would turn off all the lights, plug in his clock radio, set to the Vol Network, and stretch his 6’6” frame out across our sofa. He would set his ashtray next to the sofa and lie there, beer in hand, smoking his cigarettes and listening to the game. He usually had a wager riding on the game as well.

He died fifteen years ago this March. It was right in the middle of the NCAA tournament and my last memories, like my best memories, of him were watching those games together. He had been diagnosed with lung cancer (not a surprise to him or anyone in the family) and he was staying for a brief period of time in hospice care while we made arrangements to get him back home with the support he needed. I went over to his room after work one night to watch basketball and spend time with him. He was pretty high on morphine at the time and, as we watched Indiana play, he kept asking me why I insisted on shooting that “stupid half court hook shot.” I tried to explain to him that I was not playing for Indiana at the moment and that no one on their team was shooting half court hooks (stupid or not), but I could tell he wasn’t buying it.

He did have many lucid moments that night and we talked about our family and my law practice and the days we listened to the Vols on the old clock radio. At some point he told me he thought he Vols had a good chance to beat Kentucky next year (that thought made him happy).

We talked a while longer, said we loved each other, and I kissed him goodnight. That was the last time I ever spoke with him.

I said all of that to say this, my dad would have loved everything about the current incarnation of the Tennessee men’s basketball team. If there is a heaven, and I truly believe there is, I know he is watching Rick Barnes, betting on Vols to cover the line, having a beer or two, and trying to sneak in a cigarette when St. Peter isn’t watching. For me, I’m just going to enjoy this wonderful ride that these men are taking us on for as long as it will last, and will be holding my dad in my heart every step of the way.

Go Vols!

Addendum: I promised two of our members I would make amends for last month’s article about how Carol Anne and I met. It should be noted that Chris Cain was the person who encouraged each of us to spend time together and eventually convinced me that I should ask her on a date. I admit that Chris is not the first person you think of when you think of Cupid, but he was for us. Thanks Chris. Keith Stewart wanted me to point out that he was working with us at the Habitat House the day we painted and started to really get to know each other.

That is absolutely true. I’m not sure what relevance it has to the rest of the story, but Keith was there at the beginning and he wanted everyone to know.

Like most young boys, I idolized and even mythologized my dad. I would come into the den on game night and listen with him. I can recall the near blackness was illuminated only by the lit end of his cigarette and the glow from the radio as John Ward described the action for us. You have to really pay attention to understand what is going on in a basketball game called on the radio so I would listen intently to pick up the nuances of every game Ward was describing so I could talk about it later with my dad. In a way, dad made me somewhat of an expert on the later-era Ray Mears teams, Don Devoe teams, and even that one season that Cliff Wettig coached (how about that for trivia?).

Dad loved those teams, despite their mediocrity. We had a few all-Americans (Ellis, Wood, Johnson – I was too young to remember much of King and Grunfield) and shared a couple of regular season SEC titles (we even won one tournament as I recall) but no one would ever confuse Tennessee for a basketball school back then. But dad never gave up. He desperately wanted them to succeed, although he never showed much emotion one way or the other (unless we were playing Kentucky because he absolutely hated those guys).

March 2019

DICTA

27

28

DICTA

March 2019

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.

PARALEGAL ASSOCIATION MARCH MEETING The Smoky Mountain Paralegal Association (“SMPA”) will hold its monthly meeting on Thursday, March 14, 2019, at 12:00 p.m. at the Blount Mansion Visitors Center, Knoxville, Tennessee. Tasha Blakney w/ Eldridge & Blakney will be speaking on Personal Injury.

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. If you would be interested in speaking at a future SMPA meeting, please contact April L. Denard, CP, First VicePresident, at aprileigh34@gmail.com.

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,

March 2019

you can post a job and search for candidates.

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

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

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

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

•

Please email a resume and cover letter to ndm@helpingclients.com 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 900 sq ft. Present floor plan accommodates four offices plus a conference room and a reception area.

One Level. Offices on either side occupied by long-term law firms. Very Affordable Rate with a two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.

McKellar & Easter is seeking an attorney to rent office space in its West Knoxville location. Rent shall include access to the internet, phone lines, a fax line, and copy machines. Additional office space can be provided for a legal assistant or paralegal if necessary.

DICTA

29

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

PRO BONO SPOTLIGHT By: Kathryn Ellis Pro Bono Director Legal Aid of East Tennessee

Mark Your Calendars:

VOLUNTEER FOR PRO BONO PROJECT

It’s time to update our list of Knoxville attorneys willing to help Legal Aid of East Tennessee clients through the Pro Bono Project. If you are interested and willing to assist us, please complete the form below and return it to me either by e-mail (kellis@laet.org) or by fax (865-525-1162).

* March 9 (9:00-12:00) – Free Legal Advice Clinic Co-Sponsored by LAET, the CAC’s Office of Aging, and the KBA at the L.T. Ross Building (2247 Western Ave., Knoxville) * March 13 (12:00-2:00) – Veterans Advice Clinic at the Knox County Public Defender’s Community Law Office * March 16 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County Office

* April 10 (12:00-2:00) – Veterans Advice Clinic at the It’s time to update our list of Knoxville attorneys willing to help Legal Aid of East Tennessee Knox County Public Defender’s Community Law Office Want tothe Volunteer? clients through Pro Bono Project. If you are interested and willing to assist us, please 13(kellis@laet.org) (9:00-12:00) – Knox Fill out our new Pro Bono Volunteer Survey: complete the form below and return it to me either by* April e-mail orCounty by faxSaturday (865- Bar at LAET’s Knoxville Office https://www.surveymonkey.com/r/DCTWYFSt 525-1162).

Volunteer for Pro Bono Project Name: _______________________________________________________________________ Law Firm: ____________________________________________________________________ Work Address: ________________________________________________________________ Phone Number: ________________________________________________________________ E-mail Address: ________________________________________________________________ BPR Number: __________________________________________________________________ Types of Volunteer Work You Are Interested In (Mark All That Apply): ____ Individual Cases ____ Debt Relief Clinics ____ Saturday Bar (Knoxville) ____ Veterans Clinics ____ Saturday Bar (Maryville) ____ Faith & Justice Clinics ____ Other (specify) _________________________________________________________ Areas of Law You Are Willing to Accept Cases In: ____ Bankruptcy (Chapter 7) ____ Consumer Debt ____ Family – Adoptions ____ Family – Conservatorships/Guardianships ____ Family – Divorce ____ Family – Order of Protection ____ Landlord/Tenant – Detainer Defense ____ Landlord/Tenant – Security Deposit

____ Probate ____ Income Taxes ____ Tort Defense ____ Social Security Denials ____ Driver’s License Reinstatement ____ Expungement ____ Foreclosure ____ Estate Planning

____ Other (Specify): ___________________________________________________________ _____________________________________________________________________________ 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

March 2019

Q: A:

THE LAST WORD By:

Jack H. (Nick) McCall

Harry, on January 31, you retired from Baker, Donelson after over forty years of law practice. Looking back, what are some memories and observations that you have?

HARRY P. OGDEN

Nick, you have “opened the door!” Let me share some “war stories” that might have some lessons in them for other people.

The first jury trial I ever had was in September 1977 – Amy and I had moved here in July 1977 from Memphis--in front of the Hon. Robert Love Taylor. I had my name on Judge Taylor’s District Court appointment list and got an arraignment date for my client – my very first case in federal court in September. My client was from Coker Creek, near Tellico Plains. He had four counts under the Dyer Act. That federal law was new to me; when I hit the books, I learned it was the property equivalent of the Mann Act--instead of transporting women across state lines for immoral purposes, it involved moving stolen autos/auto parts across state lines. Coker Creek was known for chop shops and was a pretty rough area. Now, I was appointed to this case the first working day after Labor Day; trial was set for late September, probably about 20 - 25 days following my appointment. Judge Taylor prided himself on having the most current docket of any federal district court in the country.

As I was preparing for trial the night before, I got a call from Bob Ritchie, a wonderful lawyer and dear friend. Bob said: “Harry, Judge Taylor will call you everything but a child of God in front of the jury and everyone, but don’t worry about it. Just let it roll off like water off a duck’s back and keep going. Don’t let it bother you.” I thanked Bob.

It turned out that Bob was trying a 17-count drug case before Judge Taylor the same day as my trial; he was defending a pharmacist. Bob’s trial was that morning; I had ours in the afternoon. At the end of the day, Judge Taylor had two convictions. Justice came very swiftly in Judge Taylor’s court.

Bob was one of those lifelong mentors whom I’ll always remember. (In fact, Amy had him as a patient in her dental hygienist’s chair before I met him; I had met him through Amy, before I got that first case, while he was sitting in her dental chair.) I had three other lifelong mentors besides Bob.

One dear friend and early mentor was Judge Charles Nearn on the Court of Appeals, for whom I clerked. He knew former Justice Hamilton Burnett, for whom our local Inn of Court is named. (Not a lot of people know how to pronounce his name properly, but Judge Nearn taught me how to pronounce it right: “It’s Burn-it, dern it!”) Judge Nearn was an early mentor in his style, in dealing with his secretary, and in writing opinions.

We’d go from Memphis to Jackson to hear arguments. He, Judge Matherne and Judge Carney, the three Western Section judges at the time, would have a pre-hearing powwow and assign cases between themselves, one-two-three. Judge Carney was always number one; he was presiding judge and was a gentleman farmer from Ripley, Tennessee. (He and his wife were wonderful people; he owned the bank in Ripley and had a Charolais cattle farm in Lauderdale County. Whenever the State had a Democratic governor and there was an opening on the Supreme Court, he’d always make his first call to Judge Carney and say: “C.S., would you want to be on the Supreme Court?”

His answer was always the same: “Of course, I’d be interested in it, if the Court is willing to sit in Ripley. I don’t want to go to Jackson.” Under the Tennessee constitution, that cannot be done, so that was the end of that.) Judge Matherne was number two; Judge Nearn was number three. When a case was called, Judge Nearn would give me a one-, two- or three-finger sign beside his cheek

– just like a baseball coach--to let me know which cases I’d better pay attention to.

We’d go back to the office in Memphis after arguments; Judge Nearn would pick up a case file, write out an opinion in longhand on a legal pad, and give it to his secretary to type. Then, it was my job to fill in the blanks he’d left in the opinion. In my interview, he said, “The taxpayers of the State of Tennessee pay me to write opinions; the State of Tennessee pays you to help me get it right.” He added: “We’re the Court of Appeals. There’s another court above us, and if we screw up on the law, the Supreme Court will take care of it.

But, I cannot mess up on the facts, and you have to make sure I’m right about the facts, as well as the law.”

I’d have ten or more draft pages on an opinion to work on. Judge Nearn would cite a proposition of law; sometimes, he’d put in a case name that he’d remember, and I’d have to fill in the rest of the citation. Other times, he’d leave a blank and say, “I know there’s a Supreme Court opinion on this. See if you can find that case.” Other times, there’d be a blank with just no clues. Some days, I’d literally beat my head against the law books; at the end of the day, I’d say, “Judge, I just cannot find anything to put in this blank here as authority for this particular proposition of law.” He’d take his pencil out; strike through what he’d written; and say: “Well, if it’s not the law of the State of Tennessee yet, it ought to be--and maybe, it will be, after we’re through with this.” It really began to strike me then of the power and authority of judicial opinions.

Another war story: The first time I was ever in front of Judge Bill Inman – Judge Dennis Inman’s father; chancellor for many years and later, Governor Lamar Alexander’s legal counsel – was in Rogersville. As was my wont at the time, I went back to chambers to introduce myself and shake hands with the judge before court began; not to talk about the case, but so as not to be a complete stranger before we went on the record. Judge Inman asked, “How’s my friend Ed Cole?” ( Judge T. Edward Cole in Knox County.) I said, “Judge Cole is fine; I’ve been thrown out of his court a time or two already.”

Judge Inman said, “You know, I’ve never known anyone who’s as sensitive to his win-loss record in the Court of Appeals as Ed Cole. He gets pretty unhappy when the Court of Appeals reverses him. I kind of give it my best shot, and I send it on. If I’m right, it’s fine, and if not, that’s what the Court of Appeals is there for.” Judge Inman was right more than he was wrong, by the way.

Judge Nearn told me, before I left to work for a law firm in Memphis for a brief time: “Harry, there’s three things you need to know. Number One: don’t screw around with your secretary. Number Two: don’t ever open a beer or a bottle of liquor in your office at 5:00; as soon as you do, somebody’s going to walk in, and you’re going to wish you didn’t have that drink in your hand.

Number Three: be very protective of your files--document everything you do-because sometime in your life, another lawyer will come into your office and say: ‘Show me your file.’ ”

I never had Rule Three happen. I’ve had plenty of nice and attractive secretaries in my career, and we had great working relationships, but always thought I went home to the prettiest one. But, I have violated Judge Nearn’s Rule Two sometimes, even before 5:00. It’s still good advice, though.

Part 2 will follow in next month’s edition of DICTA.

“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 March 2019 DICTA

31

Prsrt Std US POSTAGE

PAID

KNOXVILLE, TN PERMIT NO. 3 0 9

P.O. Box 2027 Knoxville, TN 37901

An unforgettable evening honoring our colleagues who have been licensed 50 years or more. Photographs by JoPhoto.

See more at www.knoxbar.org.