DICTA. March 2022

Management Counsel: Law Office 101: The Best We Can Be: Inclusive Hiring and Sustainable Diversity . . . Page 8 Schooled in Ethics : Navigating Bad Legal Ethics Advice from a Senior Attorney . . . Page 19

A Monthly Publication of the Knoxville Bar Association | March 2022

TITLE IX:

CELEBRATING 50 YEARS IN THE CHANGING LANDSCAPE OF EDUCATION

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DICTA

March 2022

In This Issue

Officers of the Knoxville Bar Association

March 2022

COVER STORY 16

Title IX: Celebrating 50 Years in the Changing Landscape of Education

CRITICAL FOCUS President Jason H. Long

President Elect Loretta G. Cravens

Treasurer Catherine E. Shuck

Secretary Carlos A. Yunsan

Immediate Past President Cheryl G. Rice

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KBA Board of Governors Ursula Bailey Mark A. Castleberry Meagan Collver Jonathan D. Cooper

Daniel L. Ellis Magistrate Robin Gunn William A. Mynatt Jr. Vanessa Samano

Michael J. Stanuszek Amanda Tonkin Elizabeth Towe Zachary Walden

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The Knoxville Bar Association Staff 19

President’s Message

A Judicious Use of Resources

Practice Tips

If Only “Best Interest” Was As Simple As It Sounds

Management Counsel

The Best We Can Be: Inclusive Hiring and Sustainable Diversity

Legal Update

Now You See It, Now You Don’t—The Short Life of OSHA’s “Vaccine-or-Test” Rule for Large Employers

Schooled in Ethics

Navigating Bad Legal Ethics Advice from a Senior Attorney

WISDOM 6

Marsha S. Watson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Jonathan Guess Chandler Fletcher Database Administrator Programs & Communications Coordinator

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

Jeanie Matthews LRIS Assistant

Dicta

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

Exceptions to this policy must be cleared

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

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

March 2022

11 12 13 18 21

Volume 50, Issue 3

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.

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Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Executive Editor Executive Editor Brandon Allen Sarah Booher Anita D’Souza Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho

Managing Editor

Cathy Shuck Campbell Cox Melissa B. Carrasco Matthew R. Lyon Angelia Morie Nystrom Katheryn Murray Ogle Laura Reagan Ann C. Short Eddy Smith Grant Williamson

Marsha Watson KBA Executive Director

DICTA

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24 25 27 29 31

What I Learned About Inclusion and Why It Matters

Grace in Diversity

Well Read

The Sum of Us, What Racism Costs Everyone and How We Can Prosper Together

Hello My Name Is

Becca Plank

Lessons Learned: Reflections from a Retiring Lawyer

Candor

Judicial News

Meet Judge Jill McCook

Legally Weird

Start Spreading the News: Jets and Giants Actually Play in New Jersey

Better

Never Stop Speaking

Grammar Grinch

A Word After A Word After a Word is Power: Writing Advice from Great Novelists

Of Local Lore & Lawyers

Hugh Lawson McClung: East Tennessee Lawyer, Judge, Philanthropist

Barrister Bites

Firepits, French Toast and a Feeding Frenzy

Your Monthly Constitutional

Legitimate Political Discourse

Mitchell’s Malarkey

Believe It or Not, George Isn’t at Home

Tell Me A Story

The Importance of Showing Up

COMMON GROUND 4 20 26 28 30

Section Notices/Event Calendar Barrister Bullets New Members/Change of Addresses Bench & Bar in the News Pro Bono Project

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SECTION NOTICES & EVENT CALENDAR

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. If you have a CLE program topic or speaker suggestions, please contact the ADR Section Chairs Joe Jarrett (566-5393) or Betsy Meadows (540-8777).

Bankruptcy Law Section The Bankruptcy Section plans CLE programs and helps coordinate volunteers for the Pro Bono Debt Relief Clinics. 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 & Government Lawyers Sections for the extended CLE program “Government Contracting 101” scheduled for March 4. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs David Headrick (363-9181) or Marcia Kilby (362-1391).

Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. If you have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (931-260-5866).

Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you have a program topic or speaker suggestions, please contact the Employment Law Section 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 have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880), Kendra Mansur (771-7192), or Jimmy Wright (637-3531).

Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. If you are interested in getting involved, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040).

Government & Public Service Lawyers Section The Government & Public Service Lawyers 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 the Government Lawyers & Corporate Counsel Sections for the extended CLE program “Government Contracting 101” scheduled for March 4. For more information, please contact Hon. Suzanne Bauknight (545-4284) 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 have suggestions for CLE topics, please contact Section Chairs Justin Pruitt (215-6440) or Mike Stanuszek (766-4170).

New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any KBA member licensed since 2020 will automatically be opted-in to the section. During the last week of March, the section will sponsor a “What I Wish I Knew as a New Associate” program.

KBA Members Andrew Hale and Kelsey Osborne will speak to the group about the finer details of being a new associate. Join us to learn the things law school didn’t teach you. Gain insight into what to expect, how to prepare, and learn practical tips and strategies for mitigating the stresses and expectations that come with being a new associate. The program is only open to members of the New Lawyers Section. If you would like to get involved in planning Section activities next year, please contact Section Chairs Courteney Barnes-Anderson (803-341-0196) or Sanjay Raman (607-972-6140).

Senior Section The KBA Senior Section plans to start meeting again in 2022 for lunch. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307).

Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & 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 Tim Grandchamp (392-5936), Brittany Nestor (214-7869), or Tripp White (712-0963).

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event calendar March

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Law Office Tech Committee Government Contracting CLE Barristers High School Mock Trial Competition Barristers High School Mock Trial Competition Barristers High School Mock Trial Competition Professionalism Committee Barristers Meeting Health Law Update Webinar Judicial Committee CLE Committee Diversity in the Profession Committee Board of Governors Law Practice Today Expo

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Law Practice Today Expo Law Office Tech Committee Professionalism Committee Publications Committee Veterans Legal Advice Clinic Barristers Meeting Judicial Committee Conservatorship Practice Diversity in the Profession Committee Board of Governors

Check the KBA Events Calendar at www.knoxbar.org for scheduling updates.

March 2022

PRESIDENT’S MESSAGE By: Jason H. Long London Amburn

A JUDICIOUS USE OF RESOURCES It is axiomatic, to anyone with a basic knowledge of history and civics, that a democracy functions best when it can rely upon an informed and engaged electorate. This truth is nowhere more evident and important than in its application to the election of members of our judiciary. Judges, as elected officials, are in a difficult position. Their office is intended to be non-partisan and thus they cannot rely upon traditional party machine apparatus to advance their case for election to the degree that other office holders can. Sitting judges are bound by a code of ethics that regulates their conduct in a campaign significantly more than candidates for other offices. They do not speak at large public rallies or air commercials during the Super Bowl. Judges work in relative obscurity and their capacity and abilities are only on display for a small portion of the electorate.

Nonetheless, the election of judges is one of the most important obligations we take on as members of a democracy. I do not need to sell the importance of electing qualified and capable jurists to the members of this bar.

It is vital to a just society that we get these elections right. The challenge is in how we educate ourselves and others regarding these important elections and the candidates vying for office. We recognize that, as attorneys practicing in the Knox County court system, members of this bar association are in the best position to perform this service to the public and the Knoxville Bar Association is the most efficient vehicle for providing the service. With that in mind, I wanted to take this opportunity to remind everyone what resources are available through your KBA for the education of attorneys and the public in the upcoming judicial elections.

To begin with, one need only peruse the “Public Resources” section of the KBA website to get a better understanding of the importance of the elections, the need for participation, and the quality and competency of the candidates. Review the “Get to Know Your Judicial Candidates” section of the KBA website to see what resources are available, both to attorneys and the public. You will find a section on the importance of judicial elections and their effect upon our community, frequently asked questions about the process for electing judges in our Knox County courts, suggestions as to what a voter should be considering when making decisions, links to Knox County websites providing logistical details concerning the elections, and, perhaps most importantly, candidate profiles which are submitted by the candidates themselves to give an overview of their background and qualifications for office. I say that this information is available on the public section of our website as a service to the community at large, but it is equally valuable for practicing attorneys who, while they may have familiarity with some of the candidates, certainly cannot hope to know about each and every one of them. In short, the website is an excellent resource for gathering March 2022

all pertinent materials regarding Knox County judicial elections into a single, easily digestible format to serve the need of informing the electorate, both as to the crucial nature of these elections and the candidates. I encourage everyone to spend some time perusing the website between now and the start of early voting.

Next, the Judicial Committee of the KBA, led by Broderick Young and Sam Rutherford, is undertaking a mammoth project to interview each of the judicial candidates, via Zoom, in the weeks leading up to the election. Those interviews will cover topics ranging from the reason why candidates chose to run for election to what they believe they can bring to the process to improve our system of justice. In addition, each candidate will have an opportunity to give a brief closing statement speaking on whatever issues they believe are important for the voters to know.

These interviews will also be uploaded to the candidate profile section of the website for everyone to see. The interview project will provide candidates an opportunity in a non-political and loosely structured format to connect with voters and present their case for holding office.

Additionally, please be on the lookout for the candidate member survey for judicial candidates, which was released on February 25th with a deadline to respond by March 11th. Pursuant to the recommendations of the Judicial Committee and the actions of the Board of Governors of your Association from two years ago, we have determined that lawyers are the best individuals to evaluate other attorneys and judges in their capacity to serve on the bench. The survey will ask members to evaluate candidates on a scale ranging from Strongly Recommend to Strongly Do Not Recommend, including an option for “Do Not Know.” Those results will be released to the public as well, in our continuing effort to better inform the citizenry. I encourage everyone to take the brief time necessary to complete the survey. The more responses we receive, the better the results of the survey will be and the more meaningful for those looking for additional information regarding the candidates.

A few notes on logistics. The qualifying petition deadline for filing for judicial office will have passed by the time this article goes to print.

Early voting begins on Wednesday, April 13th and will end on April 28th. The Knox County primary election will be held on May 3, 2022.

Between now and then, I believe it incumbent upon attorneys in this area to stress to the public the importance of judicial elections and do what we can to inform both ourselves and the citizenry concerning the qualifications and abilities of those running for judicial office. Please join the KBA in this effort. The results will have a meaningful impact upon our legal community and the community at large for years to come.

Good luck to the candidates.

DICTA

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W H AT I L E A R N E D A B O U T I N C LU S I O N A N D W H Y I T M AT T E R S By: Amanda Lynn Morse

Deputy Law Director Knox County Law Director’s Office

GRACE IN DIVERSITY There is an incident that I am always reminded of when asked about the importance of diversity in the Bar. I was in court a few years ago against a very young male, white attorney. He had recently graduated law school and had been practicing law for just over a year. I found him to be incredibly frustrating (although to be fair, I am sure a great many people find me to be incredibly frustrating) primarily because he was so unaware of what he did not know versus what he did.

We were constantly arguing over motions, continuances, deadlines and the like.

Every time, I would have to refer him to the same basic local rules regarding the filing and service of motions. He had some weird habits that stood out to me; for example, he filed pleadings in Calibri font. Over and over, we would be in court and he had filed a new motion without complying with the rules, and the Court would walk him through the steps of what he should have done, or how to correct his filings as if he were a pro se plaintiff rather than an attorney representing a client. In one memorable instance, he filed a partial MSJ, in the middle of the hearing, without filing a statement of facts. He further admitted that he had never read rule 56.03, and once he had read it in court, argued that a “separate concise statement of material facts” was not required. The court opted to allow him to withdraw the motion rather than deny it.

I was so baffled by this that I eventually asked a male colleague of mine why this attorney was allowed so many “bites at the apple,” as it were. He replied, “his father and grandfather were very respected members of the area bar, so he is probably just being given a little grace.”

I do not write this to criticize this young attorney or the court; he was so painfully new even I wanted to help him. It is simply an example of the level of camaraderie and understanding that my colleagues of less diverse backgrounds seem to automatically enjoy. As a society, people instinctively relate to and bond with people who are like them. We are more likely to help someone out, or forgive transgressions of people we feel connected to, people who are like “us.” When I go to court, there is often no one “like me,” in the courtroom much less on the bench. I am a second generation MexicanAmerican. I am not from Knoxville. I do not have the same built-in community that people who were raised in Knoxville or went to school here have. I am the first person in my family to go to college, much less law school. There are no attorneys in my family or background. My father is a mechanic, and my grandfather worked primarily as a seasonal farmhand.

Where’s my grace?

Photo Ops

New Lawyers Section Welcome Reception

The 2022 Welcome Reception for the KBA’s New Lawyers Section was held on January 25 at Barrelhouse by Gipsy Circus Cider. The event was sponsored by of Heath Trentham with Northwestern Mutual and the featured speaker was Barristers President Meagan Collver. Section Chairs Sanjay Raman and Courteney Barnes-Anderson coordinated the event for Section members in their first three years of practice.

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March 2022

PRACTICE TIPS By: Laura Reagan Stern Family Law, PLLC

IF ONLY “BEST INTEREST” WAS AS SIMPLE AS IT SOUNDS I.

Introduction For those attorneys practicing family or juvenile law, “the best interest of the child” (BIOC) is a term that is used almost daily. When determining or arguing the BIOC there are specific factors set out in statute or rule. For newer attorneys, or those that don’t usually practice in family or juvenile courts, it is critical to note that there are different best interest factors depending on the legal issue you represent and there has been significant legislative change to the best interest factors in a termination of parental rights (TPR).

II. Child Custody and Guardian ad Litem In a child custody matter the court will order an agreement that allows each parent to exercise as much parenting time as possible after considering where each parent resides, the child(ren)’s need for stability, and all other relevant factors.1 There are fifteen (15) factors written in the statute that represent relevant factors that the court shall consider. These factors focus on both the needs of the child(ren) and each parent’s ability to provide for those needs. The best interest factors that are applied by a guardian ad litem when determining the best course of action for the child(ren) in neglect, abuse, and dependency proceedings are governed by Supreme Court Rule 40. There are seventeen (17) best interest factors, and they focus exclusively on the needs of the child(ren).

III. Termination of Parental Rights In a TPR, the BIOC factors have changed. In April 2021 Governor Lee signed House Bill 0200 which made the best interest factors more “child-centered”2. These factors address the needs of the child(ren) as a whole, meaning physically, mentally, emotionally, educationally, etc. The new factors for TPR can be found in Tennessee Code Annotated §36-1113(i)(1)(A-T) and they are as follows: (1) In determining whether termination of parental or guardianship rights is in the best interest of the child, the court shall consider all relevant and child-centered factors applicable to the particular case before the court. Those factors may include, but are not limited to, the following: (A) The effect a termination of parental rights will have on the child’s critical need for stability and continuity of placement throughout the child’s minority; (B) The effect a change of caretakers and physical environment is likely to have on the child’s emotional, psychological, and medical condition; (C) Whether the parent has demonstrated continuity and stability in meeting the child’s basic material, educational, housing, and safety needs; (D) Whether the parent and child have a secure and healthy parental attachment, and if not, whether there is a reasonable expectation that the parent can create such attachment; (E) Whether the parent has maintained regular visitation or other contact with the child and used the visitation or other contact to cultivate a positive relationship with the child; (F) Whether the child is fearful of living in the parent’s home; (G) Whether the parent, parent’s home, or others in the parent’s household trigger or exacerbate the child’s experience of trauma or posttraumatic symptoms; (H) Whether the child has created a healthy parental attachment with March 2022

another person or persons in the absence of the parent; (I) Whether the child has emotionally significant relationships with persons other than parents and caregivers, including biological or foster siblings, and the likely impact of various available outcomes on these relationships and the child’s access to information about the child’s heritage; ( J) Whether the parent has demonstrated such a lasting adjustment of circumstances, conduct, or conditions to make it safe and beneficial for the child to be in the home of the parent, including consideration of whether there is criminal activity in the home or by the parent, or the use of alcohol, controlled substances, or controlled substance analogues which may render the parent unable to consistently care for the child in a safe and stable manner; (K) Whether the parent has taken advantage of available programs, services, or community resources to assist in making a lasting adjustment of circumstances, conduct, or conditions; (L) Whether the department has made reasonable efforts to assist the parent in making a lasting adjustment in cases where the child is in the custody of the department; (M) Whether the parent has demonstrated a sense of urgency in establishing paternity of the child, seeking custody of the child, or addressing the circumstance, conduct, or conditions that made an award of custody unsafe and not in the child’s best interest; (N) Whether the parent, or other person residing with or frequenting the home of the parent, has shown brutality or physical, sexual, emotional, or psychological abuse or neglect toward the child or any other child or adult; (O) Whether the parent has ever provided safe and stable care for the child or any other child; (P) Whether the parent has demonstrated an understanding of the basic and specific needs required for the child to thrive; (Q) Whether the parent has demonstrated the ability and commitment to creating and maintaining a home that meets the child’s basic and specific needs and in which the child can thrive; (R) Whether the physical environment of the parent›s home is healthy and safe for the child; (S) Whether the parent has consistently provided more than token financial support for the child; and (T) Whether the mental or emotional fitness of the parent would be detrimental to the child or prevent the parent from consistently and effectively providing safe and stable care and supervision of the child.3 IV. Conclusion The application of the BIOC factors is complex regardless of the legal issue you represent. Remember that one standard is the same for all issues: the court is not limited to considering only the factors written and not every factor must be proven. Most importantly, know which factors you should be applying for your particular case.

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Tennessee Code Annotated §36-6-106 Tennessee Code Annotated §36-1-113(i)(1) Tennessee Code Annotated § 36-1-113(i)(1)(A-T)

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MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Brooklyn Sawyers Belk Litigation and Safety Counsel, Lyft, Inc. and Visiting Professor, University of Tennessee College of Law

THE BEST WE CAN BE: INCLUSIVE HIRING AND SUSTAINABLE DIVERSITY Early in my career and work with what I then called diversity, equity, and inclusion, I focused on diversity only to realize that diversity is nothing more than adding numbers to headcount. Later, I learned that the adding became subtracting because, without more, you merely add diverse employees and then subtract them because of attrition. As my work matured, I learned to reverse the focus: inclusion, equity, and diversity (IED) because diversity—hiring people who check different boxes—is unsustainable without inclusion.

Inclusion is the act of being included—the opposite of being (or, feeling or believing you are) left out, shunned, excluded, on the outside looking in; defined as the action or state of including or being included with a group or structure. It requires action, presence of mind, and deliberation. In the employment context, inclusion is more than merely hiring someone. Hiring is a first, but never the final, step: much is required between the two for successful outcomes.

Because I have led successful IED efforts, I offer these reflections.

Retaining talent is directly correlated to inclusivity—hiring officials’ and the associated institution’s ability to include the employee in the institution’s culture and adapt that culture as necessary to include new people and ideas.

Phrased differently, many people work for selfbenefit—from generating economic resources, to fulfilling altruistic notions of giving part of self to others, to engagement. People can satisfy that self-benefit need in any number of workplaces over their careers. But, many people will choose workplace longevity with a particular employer—a conscious decision to stay in a particular workplace—when they believe that they are part of the “thing” and, thus, included.

This inclusivity need and process is similar for all employees regardless of diversity, but perhaps more imperative when the employee is the only one or one of few people who identify in specific ways. To test this hypothesis, choose to be the only one of whatever group you desire in some institutional setting. By way of suggestion, places of worship tend to be segregated. Choose to attend a worship service where you believe you will be the only one who identifies a certain way at the service.

Assess how being the minority in the service impacts you, including the impact on your willingness to speak up, share your opinions, desire to shrink back, deny your authentic self, or avoid engagement opportunities.

Imagine those feelings aggregated over weeks, months, years, decades, your entire life; in a situation that is not by choice, but your life-style sustaining, needs-meeting, career. The test results will vary, including that

some people will leave the experiment unbothered. Things impact people differently. The human condition is complex and our experiences differ.

But addressing those who concluded their minority status can be—this is not absolute—intimidating, what solutions exist to address the dynamic?

One solution is operating in a spirit of inclusivity. For those who answer the weighty call of professional leadership, the burden of walking in that inclusive spirit in the employment context sits squarely in the recruiting, hiring, and retention space.

You include diverse candidates and employees by doing all you can to make them welcome, their voices heard and opinions counted in an evolving workplace that is adaptable. Over my diverse career, no pun intended, I have assisted others in finding diverse candidates, and been a recruiting and hiring authority. I have been successful in “finding” and then connecting diverse candidates and hiring officials, and have made some connections that resulted in sustained workplace diversity.

The techniques that I have employed are below. They are not novel, difficult, or even complex. These strategies worked for me. I have merely prioritized a few things.

Organizations that think as broad and diverse as the people who make up the world are stronger than they otherwise would be and, to think like that, requires a brain trust of people who are broad and diverse in their thinking.1 Thus, the more ages, races, genders, abilities, orientations—all the things—the better and the more people the organization is likely to reach. I believe so strongly in these principles that I apply them personally, too. One of the greatest compliments that I have received is people noting that my family has the most diverse friend and associate group that they have encountered. From Larry Nave, my 80-year plus, young friend who graduated from Emory and Henry College some 40 years before me, to all types of law enforcement officers, whom I met as a prosecutor and chose to stayed connected with, to Destiny Sirivong, our 20-something mentee, and so many people in between—all unique, adding something special to every encounter—and making my family richer for having learned from them. That is all, and it is summarized in six simple points.

1.

Go to the people. To start, I familiarize myself with diverse organizations. When working with entities seeking to increase workplace diversity, I become acquainted with organizations whose membership reflects that diversity and then

continued on page 9

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 Caitlyn Elam at 546-4646.

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M A N A G E M E N T C O U N S E L , continued from page 9 make meaningful connections with the organizations.

2.

and share their every opinion. I must demonstrate a conciliatory attitude and approach making space for all voices to be heard. The leadership team makes the final decision, but the willingness to listen on the decision-making path impacts morale, particularly if the voices have been omitted historically.

Mentor the desired talent. The world is full of less-seasoned professionals who want an opportunity to do the things they dream of and experienced counsel from those who went ahead of them. Mentoring less-seasoned professionals creates a network of people who are the employment candidates for the positions that you may be recruiting for in the future. In the IED context, the key is mentoring all types of professionals—regardless of gender, race, age, etc.—understanding that the broader range of professionals mentored is directly correlated to the range of familiar candidates in the applicant pool when you are the hiring official.

3.

Advertise widely. Diversity aside, professionals I know desire to be the best they can and earn phenomenal careers.

If opportunities are advertised to wide and diverse audiences, the odds of a diverse candidate pool increase. To target a particular group, consider number one.

4.

Adapt and evolve. I set the tone for the groups that I am blessed to lead. If people see me willing to disagree and commit, adapt, or even change course, many of them will follow suit, and we evolve together.

5.

Attitude. I offer this thought as an example. I like infrequent and fast meetings. But there are people who I supervise who operate with more deliberate speed. They need to meet often

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6.

Value. I am openly and unapologetically Christian. If you spend personal time with me, you may eventually hear a God bless you. In honor of my faith, I send faith-based Christmas cards. But, I have a direct report who believes different than me. He needs to know that his faith matters as much as my faith. I want my faith respected and, to have it respected, I have to also respect others’ faith. I want him to know that I respect him and his beliefs. To show that respect, for the holidays, I sent him a faith-neutral card—a small respect gesture. It did not require many resources, but made a lasting impression on my employee.

I have made mistakes in this area. I do not know all the answers. But, I am committed. I try to make a positive difference. These simple steps help me. I hope you find your own challenging, but admirable and worthwhile journey—opening doors for others—invaluable.

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Diversity Wins: How Inclusion Matters. The McKinsey & Company Report. May 19, 2020. See https://www.mckinsey.com/featured-insights/diversity-and-inclusion/ diversity-wins-how-inclusion-matters.

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WELL READ By: Hon. Chuck Cerny

Knox County General Sessions Court, Division I

THE SUM OF US, WHAT RACISM COSTS EVERYONE AND HOW WE CAN PROSPER TOGETHER, BY HEATHER McGHEE “You’re cutting off your nose to spite your face.” The idiom has intrigued me since the first time I heard it. People can make decisions which they think will give them some advantage over others, but the decision actually harms the person who made it.

That’s why Heather McGhee’s book, “The Sum of Us, What Racism Costs Everyone and How We Can Prosper Together” seemed so compelling. The marketing for the book described McGhee’s denouncement of “drained pool politics.” The book debuted at number three on the New York Times Best Seller list.

McGhee makes a very convincing argument that we make some of our policy (and voting) decisions based on the assumption that the advancement of one group of people comes at the expense of another, and that this “zero sum” assumption is not just false, but it is hurting both groups. Sometimes these votes against our own interests are responses to false and over-simplified “race neutral” rhetoric. She argues instead for a “Solidarity Dividend” that occurs when diverse demographic groups vote for what is actually in their mutual best interest.

“Why can’t we have nice things?” It’s McGhee’s first sentence in her introduction. The “nice things” aren’t mere baubles. She’s referring to “the more basic aspects of a high-functioning society, like adequately funded schools or reliable infrastructure, wages that keep workers out of poverty or a public health system to handle pandemics.” And the “we” that we are talking about “includes the white Americans who are the largest group of the uninsured and the impoverished as well as the Americans of color who are disproportionately so.”

There was a time in our history when government provided a “nice thing” that we don’t see very often anymore: huge, beautiful, clean, well maintained public swimming pools.

“By World War II, the country’s two thousand pools were glittering symbols of a new commitment by local officials to the quality of life of their residents, allowing hundreds of thousands of people to socialize together for free . . . Officials envisioned the distinctly American phenomenon of the grand resort pools as ‘social melting pots.’”

But persons of color didn’t get to blend in the “melting pot”. As segregation was becoming illegal, every region of the country dealt with the requirement to integrate the public pools by defiantly forming private associations or clubs that provided pools to whites only, or by informal “policing” by whites through intimidation (and violence) and even by filling in pools and not providing this benefit altogether.

McGhee’s “drained pool” and “zero sum” premises are freshly presented and well-reasoned, but they are not completely unheard of.

Martin Luther King, Jr. espoused a similar concept in his speech at the state capital in Montgomery, Alabama, after the march from Selma, on March 25, 1965, saying “…the segregation of the races was really a political stratagem employed by the emerging Bourbon interests in

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the South to keep the southern masses divided and southern labor the cheapest in the land…” Both King and McGhee rely on historian C. Vann Woodward for support of these arguments.

It’s not just swimming pools. Ms. McGhee looks at higher education. The U.S. government offered the states over ten million acres of land to build institutions of higher learning in the 1860’s. And in 1947, the GI Bill offered more free money, and veterans made up fifty percent of U.S. college admissions. But Blacks were almost completely excluded from these opportunities, until desegregation.

Ms. McGhee also takes on redlining. “Recent Federal Reserve Bank of Chicago research has found, with a granular level of detail down to the city block, that the refusal to lend to Black families under the original 1930s redlining maps is responsible for as much as half of the current disparities between Black and white homeownership and for the gaps between the housing values of Black and white homes in those communities.” But McGhee also describes whole towns that have had economic and social revivals based on interracial co-operation.

With topics so potentially inflammatory, you might expect the tone of the book to be strident, caustic or angry. But Heather McGhee just sounds logical, well informed, and even kind. (Ok, I admit I listened to the book on my “Audible” app.) I feel like she and I (and you) could be very good friends, and we might disagree about some things, but that she would always call me out when my reasoning is faulty.

I recently had the good fortune to meet Avice Reid, who moderated the Knoxville Bar Association event “Difficult Conversations”. (You can see the program on YouTube.) Ms. Reid is the Senior Director of Trinity Health Foundation. I couldn’t keep quiet in the question and answer time. I spouted off about how I had just read Heather McGhee’s book. I expressed frustration: “I know we have made some progress as a society, but unless persons of color acquire more political and economic power, these conversations will always be intellectual gymnastics.”

After the gathering, I spoke to Ms. Reid. She literally told me that she was not allowed to swim at the Concord Pool on Northshore Drive when she was a girl. She had to go across Northshore Drive to Carl Cowan Park. My wife’s mother used to take her to the Concord Pool.

We now exercise our dogs at the dog park that used to be the pool, which has since been filed in with dirt. It’s amazing how close to home and relevant McGhee’s thesis is.

It won’t shock you that Ms. McGhee’s political and economic viewpoints are a little left of my own. But McGhee’s book makes me wonder: are we guilty of very low level, superficial analysis of difficult problems? Are we (liberals and conservatives) buying into simplistic sound bites and dog whistles to formulate our economic policies, to the point where we have ostensibly race neutral policies that actually have racist consequences, and also hurt poor whites? Are we cutting off our nose to spite our face?

DICTA

March 2022

HELLO MY NAME IS By: Jennifer Franklyn

Leitner Williams Dooley Napolitan, PLLC

BECCA PLANK This month’s q-and-a features KBA and Barristers Member Becca Plank, who is a firstyear associate attorney at Landry & Azevedo.

Becca practices real property and business law, both transactional and litigation, as well as general civil litigation, and she is looking forward to adding bankruptcy to her practice areas in the future. She is a 2021 graduate of the University of Tennessee College of Law. I hope you enjoy getting to know Becca, a creative and bright new addition to the KBA. What do you enjoy most about your job?

I really enjoy the close-knit community that is my law firm. I felt welcomed right away and feel like I can go to anyone here when I have questions or need support or guidance.

What is one professional skill you are working on?

My current professional goal is to improve on giving legal consultations – taking in the facts and details from the potential client and building up the confidence to come up with decisions and solutions “on the fly,” so the potential client has the information necessary to make an informed decision.

Why did you decide to live and work in Knoxville?

My family moved to Knoxville when I was two years old, and my father had just become a professor at UT Law. I grew up here, and when I was a teenager, I spent so much time wanting to get out of Knoxville. I moved back after college and decided to become a tourist in my own city and ended up discovering that I love it here. I love that Knoxville has a “small town feel” but still has lots to do and explore, including many little weird quirks.

gifts for my friends and family. I would cook amazing meals and bake the most intricate treats possible. (Many of these are things I already do when I have the time, but to have the time to do all of these things would be a dream.)

What’s your binge-watching guilty pleasure?

I’m currently back to re-watching Grey’s Anatomy. I watch it when I need a good cry or when I need to fold laundry. (Sometimes both happen at the same time!)

If you could instantly become an expert in something, what would it be?

Carpentry and woodworking. I’ve taught myself some basic woodworking skills, and I love making little custom pieces of furniture with my miter saw. So far, I’ve made a standing desk, a coffee table, a small printer table for my father, and a few other things. I would like to advance my woodworking skills in the future.

What is one piece of advice that you would give to a new law student?

Don’t lose sight of the things you love to do outside of being a law student. Whether you love to bake, run, play sports, or hike, keep making time to do what you love. Beyond those hobbies, rest! If you skip a couple readings because you’re feeling burned out, it will be better for you in the long run than trying to push through every time.

If you became independently wealthy, and you no longer needed to work, what would you do with your time?

I would make everything myself. I would grow a garden with vegetables and herbs, and I would learn how to make pickles. I would also have a woodshop and make my own furniture, and I would hand-make March 2022

DICTA

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LESSONS LEARNED: REFLECTIONS FROM A RETIRING LAWYER By: John Eldridge

CANDOR It is human nature to avoid difficult conversations, and it is no different for attorneys. Thus, it is normal to want to avoid phone calls or meetings that have “uncomfortable” written all over them. We know that contact is going to have to be made but procrastination takes over.

Instead of, “Never put off today what can be done today,” it is, “Never do today what I can put off until tomorrow!”

But let’s be candid. Avoiding the difficult phone call or troublesome meeting with that other lawyer only hurts your client. To provide effective representation, it is imperative that you have an open channel of communication with the lawyer on the other side. That means making a phone call, even if you don’t want to.

Another place that lawyers avoid difficult conversations is with staff. You may need to request a change of behavior or a change of office procedure that is resisted because, “That’s just the way we’ve always done it.”

Terminating a staff member is the worst, but once that person who was disruptive or did not fit is gone, and you have found a replacement, you realize giving him or her the pink slip should have been accomplished long ago.

Certainly, another area of avoidance is when the attorney puts off that difficult conversation with a client. It may be some bad news about your client’s case or that you have done something, or neglected to do something, that hurts your client’s case. And especially, we avoid telling

our clients things that they don’t really want to hear. My mentor, Bob Ritchie, once said, “You can tell anyone anything, if you just say it right.”

How true that is! Other lawyers and your clients need you to be honest and forthright.

Sometimes it is difficult, but honesty is the best policy.

Another place that attorneys have a particularly difficult time being candid is when we make a mistake. No lawyer wants to have to reveal she messed up. The natural inclination is for the lawyer to bluster on through and not admit to your client or the other attorney or even to herself that she made a mistake. However, think about it: It is so utterly disarming when someone calls you up and says, “I’m sorry, I messed up.”

An honest apology will go a long way. And yes, whether you can accept responsibility for your errors will enhance your reputation. It may be that on a stressful day you were curt with a clerk, mean to a fellow lawyer, or God forbid, went off on a judge. The best course of action is to come with hat in hand and say: “I apologize; it was my fault; I messed up,” without trying to defend the mistake. A sincere apology never tries to explain, limit, or defend an action or inaction. So, be sincere.

One definition of candor is “sharp honesty in expressing oneself.”

And that is what we are talking about here. Sharp honesty is one of those traits that all good lawyers practice day in and day out. Candor is the way to go!

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DICTA

March 2022

JUDICIAL NEWS By: H. Bruce Guyton Retired U.S. Magistrate Judge

MEET JUDGE JILL McCOOK

March 2022

come before the Court.”

handling a diverse mix of matters. She was asked to serve as a Deputy Ethics Official, and in 2020, Judge McCook moved to the role of Manager of Compliance, the position she held at TVA when she became a judge.

As for why she sought the Magistrate Judge position, Judge McCook explained that she wanted to apply her education and experience at a high level in the public sphere.

She knew she could achieve this goal on the federal bench. And Judge McCook now looks forward to committing the rest of her career to public service: “It is the highest honor of my career to be appointed as United States Magistrate Judge. I look forward to serving the District Judges and the citizens of the Eastern District of Tennessee, as well as the legal profession, to ensure the fair administration of justice and efficient disposition of cases that

DICTA

DICTA

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

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

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

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EDITORS’ NOTE:

C

The retirement of Magistrate Judge Bruce Guyton created a vacancy on the federal bench in the Eastern District of Tennessee.

Over the course of several months in 2021, a Merit Selection Committee, comprised of distinguished area lawyers and non-lawyers, considered over 50 applicants. The Committee then presented five names to the District Judges, and they chose Knoxville attorney Jill McCook.

On January 31, 2022, Jill McCook was sworn in as United States Magistrate Judge for the Eastern District of Tennessee. She will serve an eight-year term, after which she may request to be considered for re-appointment.

Judge McCook grew up in the small town of Summersville, West Virginia (pop. 3200).

During high school, she knew she wanted to become a lawyer, as she participated in various activities that focused on a career in the law and public service, including Youth in Government. Judge McCook attended Emory & Henry College and pursued a pre-law curriculum.

As an undergraduate, Judge McCook interned with United States Magistrate Judge Pamela Meade Sargent in the Western District of Virginia. Judge Sargent encouraged her to pursue a legal career. Judge McCook showed her aptitude for litigation early, winning both the best brief and best overall performance in the Moot Court Competition in college.

After graduating Magna Cum Laude with honors in political science, Judge McCook attended law school at Washington & Lee University where she excelled, graduating Cum Laude, and was a member of Omicron Delta Kappa. She served as student law clerk to a state court judge and was selected by the faculty as a Burks Scholar. This is a program wherein a small group of third-year students teach legal research and writing to first-year students. Judge McCook has continued teaching during her legal career. From 2013 to 2021, she was Adjunct Professor of Legal Process at the University of Tennessee Law School.

Following summer positions with Knoxville law firms, Judge McCook began her life as a lawyer with the Greenberg Traurig law firm in Albany, New York. She remained there until she accepted a position as law clerk to United States District Judge Thomas A. Varlan in Knoxville.

Judge McCook clerked for Judge Varlan from 2010 to 2016, and for several years she was Senior Law Clerk. This experience gave her a keen understanding of the role of the Magistrate Judge in the federal court system. In 2016, Judge McCook joined the Baker Donelson law firm, as part of its Labor and Employment Group and she later joined the Government Enforcement and Investigation Group.

In January 2018, Judge McCook, motivated by a desire to work again in a public service role, joined the Office of the General Counsel at the Tennessee Valley Authority. There she worked on a litigation team

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L E G A L U P DAT E By: Regina Koho

Attorney, Tennessee Valley Authority Office of the General Counsel

NOW YOU SEE IT, NOW YOU DON’T– THE SHORT LIFE OF OSHA’S “VACCINE-OR-TEST” RULE FOR LARGE EMPLOYERS Introduction As COVID-19 has continued to ravage the country, federal, state, and local governments have struggled with how best to address the virus and its debilitating effects on the nation’s health and economy. One bright spot has been the development of effective vaccines, which first became available in late 2020.1 However, like many COVID-19 measures, vaccines have become politicized, and American vaccination rates have languished as compared with other developed nations.2 In November 2021, the Biden Administration sought to boost the country’s vaccination levels by implementing an emergency rule that would apply to employers with 100 or more employees3 and required, in short, that employees either be vaccinated or submit to weekly COVID-19 testing. This effort was short-lived—a little over two months after its implementation, the U.S. Supreme Court stayed the rule, which ultimately resulted in its withdrawal by the Administration.

The legal debate surrounding this rule highlights the stark divide among jurists—and the public—regarding the appropriate role of the federal government in combating this public health crisis. It also highlights the issues facing large employers that cross state lines, as they are now without a uniform vaccination standard to rely upon.

The Occupational Safety and Health Administration’s Authority to Enact “Emergency Temporary Standards” In 1970, Congress enacted the Occupational Safety and Health Act,4 which also created the Occupational Safety and Health Administration (“OSHA”), a part of the Department of Labor. Broadly speaking, OSHA is tasked with ensuring “safe and healthful working conditions”5 through the enforcement of occupational safety and health standards.6 Typically, OSHA’s standards must “be developed using a rigorous process that includes notice, comment, and an opportunity for a public hearing.”7 However, a limited exception exists for emergency situations. OSHA may promulgate an “emergency temporary standard” (“ETS”) that takes effect immediately8 if it determines “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and that an “emergency standard is necessary to protect employees from such danger.”9 The ETS then serves as a “proposed rule,” and over the next six months, the agency proceeds “with the notice-and-comment procedures of a normal OSHA standard.”10 At the end of that process, either the same standard or a revised one is promulgated.11 Background Leading Up to Supreme Court Review of the “Vaccine-orTest” ETS On November 5, 2021, OSHA issued its COVID-19-related ETS, which, with limited exceptions, required employees of covered employers to become vaccinated or to wear masks at work and submit to weekly COVID-19 testing.12 The ETS applied to roughly 84 million people.13 Not surprisingly, numerous parties—businesses, states, trade groups, and nonprofit organizations, among others—were waiting in the wings to challenge the ETS. Multitudes of petitions for review were filed, with at least one arriving in each of the federal circuits.14 Although the petitions were ultimately consolidated in the Sixth Circuit,15 the Fifth Circuit stayed implementation of the ETS pending judicial review before this occurred.16 Following consolidation, the federal government moved to dissolve

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the Fifth Circuit’s stay.17 In a 2-1 decision, the Sixth Circuit granted the motion. The majority opinion, authored by Judge Jane Stranch, an Obama appointee, concluded that the ETS was well within OSHA’s authority to issue standards to protect “against infectious diseases that present a significant risk in the workplace, without regard to exposure to that same hazard in some form outside the workplace.”18 Judge Joan Larsen, a Trump appointee, disagreed, “question[ing] whether the [federal government] c[ould] show that OSHA’s risk assessment and solution are tied to its authority—to protect employees against grave danger in the workplace.”19 The Court’s Ruling The ETS challengers then petitioned the Supreme Court, which expedited review.20 In a 6-3 unsigned ruling, the Court reinstated the stay on January 13, 2022. The majority concluded that the petitioners were likely to succeed on the merits of their argument that the ETS exceeded the Department of Labor’s authority, as its governing statute authorized “set[ting] workplace safety standards, not broad public health measures.”21 Although acknowledging that “COVID–19 is a risk that occurs in many workplaces,” the majority opined that “it is not an occupational hazard in most,” and that “[p]ermitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”22 The Court’s three liberal justices believed that the ETS fell “within the core of the agency’s mission: to ‘protect employees’ from ‘grave danger’ that comes from ‘new hazards’ or exposure to harmful agents.”23 The dissent specifically disputed the validity of the limitation placed on OSHA’s authority by the majority, observing that its governing statute did not require that employees be exposed to the danger OSHA sought to guard against “only while on the workplace clock.”24 And in overturning OSHA’s decision, the dissent accused the majority of “substitut[ing] judicial diktat for reasoned policymaking.”25 Conclusion Following the Court’s ruling, the Biden Administration announced that the ETS would be withdrawn, which also terminated the legal proceedings surrounding its validity.26 Although it is possible that OSHA will attempt to enact a version of the ETS through its formal rule-making process, it would undoubtedly become entangled in similar legal challenges and perhaps abandoned once again.27 All of this creates confusion and uncertainty for large employers, particularly those who have employees in different states, as they are “subject to a patchwork of state and local laws” related to COVID-19, with some jurisdictions requiring vaccines and others prohibiting such mandates or other protective measures.28 Perhaps the bright spot for attorneys is that this uncertainty provides plenty of new opportunities for providing legal advice to employer clients!

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Ben Guarino et al., “The weapon that will end the war”: First coronavirus vaccine shots given outside trials in U.S., Washington Post (Dec. 14, 2020), https://www. washingtonpost.com/nation/2020/12/14/first-covid-vaccines-new-york/.

See, e.g., Derek Thompson, How America Dropped to No. 36, The Atlantic (Sept. 26, 2021), https://www.theatlantic.com/ideas/archives/2021/09/how-america-lost-itslead-vaccination/620201/.

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Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., 142 S. Ct. 661, 663 (2022) (per curiam) (noting that [t]he purpose of the rule was to increase vaccination rates at businesses all across America” (internal quotation marks omitted)).

84 Stat. 1590, 29 U.S.C. § 651 et seq.

29 U.S.C. § 651(b).

29 U.S.C. § 655(b).

Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 663 (citing 29 U.S.C. § 655(b)).

29 U.S.C. § 655(c)(1).

Id. In re MCP No. 165, 21 F.4th 357, 366–67 (6th Cir. 2021) (citing 29 U.S.C. § 655(c) (2), (3)).

29 U.S.C. § 655(c)(2).

See Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 663–64. Like other OSHA standards, non-compliance could also result in fines for covered employers. See In re MCP No. 165, 21 F.4th at 367–68 (citing 29 C.F.R. § 1903.15(d)).

Emma Goldberg, OSHA withdraws its workplace vaccine rule, N.Y. Times (Jan. 25, 2022), https://www.nytimes.com/2022/01/25/business/osha-vaccine-mandate. html.

Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 664.

“Under 28 U.S.C. § 2112(a)(3), the Government notified the judicial panel on multidistrict litigation of petitions across multiple circuits, invoking the lottery procedure to consolidate all petitions in a single circuit. On November 16, the panel designated the U.S. Court of Appeals for the Sixth Circuit to review the petitions.” In re MCP No. 165, 21 F.4th at 368.

See BST Holdings, L.L.C. v. Occupational Safety & Health Admin., United States Dep’t of Lab., 17 F.4th 604, 611 (5th Cir. 2021) (concluding that OSHA’s ETSrelated statutory framework “was not . . . intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways”).

In re MCP No. 165, 21 F.4th at 368.

In re MCP No. 165, 21 F.4th at 371. Although there were a number of types of legal questions presented by the various petitions (e.g., “major questions doctrine,” id. at 372–74, Commerce Clause, id. at 384–85, non-delegation doctrine, id. at 386–87), the overarching legal issue was the scope of OSHA’s statutory authority to enact the ETS.

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Id. at 397 (Larsen, J., dissenting).

See, e.g., Devin Dwyer, Biden vaccine mandates face critical Supreme Court test, ABC News (Jan. 7, 2022), https://abcnews.go.com/Politics/biden-vaccinemandates-face-critical-supreme-court-test/story?id=82053509.

Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 665.

Id. Id. at 670 (dissenting opinion) (quoting 29 U.S.C. § 655(c)(1)).

Id. at 673.

Id. at 674.

Goldberg, supra n. 14.

Id. Id.

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DICTA

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TITLE IX:

50 YEARS IN THE CHANGING LANDSCAPE OF EDUCATION This year marks the 50th anniversary of Title IX of the Educational Amendments of 1972. Through case law and federal regulation, the nature of Title IX has expanded over these last fifty years, reshaping to fit the needs of the ever-changing landscape of education. Most significantly, Title IX has come to govern how recipients of federal funding respond to sexual misconduct in education. In 2020, the Trump-era Department of Education implemented one of the most significant changes through extensive federal regulation.1 This article explores the changes made to Title IX under these regulations as well as the response of the current administration and predictions for the future.

The 2020 regulations redefined sexual harassment.2 This overarching definition of sexual harassment includes: quid pro quo committed by an employee of the recipient of federal funding; unwelcome conduct that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to an educational program or activity; domestic violence; dating violence; sexual assault; and stalking.3 Institutions may create their own definition of consent for the purposes of sexual assault.4 These definitions should be clearly detailed in institution policy.

In addition to the new definition of sexual harassment, the regulations narrowed the scope of Title IX. In order to file a formal complaint under Title IX, a complainant must be participating in or attempting to participate in the recipient’s educational programs or activities, which are defined as situations under which the recipient exercises substantial control over the respondent and the context in which the alleged harassment occurs.5 These locations may differ from the institution’s Clery Act geography.6 Significantly, these regulations also do not cover instances of alleged sexual misconduct that occur outside the United States.7 Institutions which provide study-abroad or foreign exchange opportunities for their students should examine how they will address allegations of misconduct arising out of their international programs.

Allegations which fall under this new definition and within the scope of Title IX must be adjudicated through a prescriptive process outlined in the regulations.8 This process includes many procedural details which are not enumerated here, including but not limited to the requirement of a formal complaint, notice requirements, and the opportunity for informal resolution in some circumstances.9 The

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opportunity for a live hearing constitutes one of the most impactful requirements.10 While many public institutions have required hearings since Doe v. Baum,11 many institutions face their first live hearings under these new regulations. These hearings must include the opportunity for parties to have an advisor question other parties and witnesses.12 Hearing officers must make their determinations starting with the presumption that the Respondent is not responsible for a violation.13 Institutions may choose whether the hearing officers will use the preponderance of the evidence or the clear and convincing standard when weighing the evidence.14 These decision-makers cannot be the Title IX Coordinator or whoever investigated the allegations.15 These roles, and the role of the appellate officer(s), must be filled by different people, and parties still must be given the right to identify a conflict of interest or bias from any of the people in these roles.16 As a result, many institutions find themselves expanding their Title IX teams with paid employees or volunteers, who must receive specific training detailed under the regulations.17 Institutions should be prepared to find adequate training and to post the training materials on their websites for review.18 Institutions must also be prepared to find a way to share evidence directly related to the allegations with the parties.19 For many institutions, this may mean finding new secure forms of data sharing.

For many institutions, these regulations have resulted in new policies which are much narrower than their previous sexual harassment and misconduct provisions. While the scope of Title IX and the definition of sexual harassment are narrowed under the current regulations, institutions still have obligations under such laws as the Clery Act and the Violence Against Women Act. Institutions should be prepared to address alleged violations beyond those defined in the regulations in accordance with their obligations under these laws as well.

The regulations have also changed the role of Title IX in K-12 institutions. The 2020 regulations require K-12 schools, like their higher ed counterparts, to designate a Title IX Coordinator.20 In higher education the institution is considered to have actual knowledge of sexual harassment when the Title IX Coordinator, or other designated employees with authority, has knowledge of harassment; at the K-12 level, the school district is put on notice when any employee has

DICTA

March 2022

COVER STORY By: Kelly Hawk, JD, MSC

Title IX Coordinator/Institutional Compliance Officer Lincoln Memorial University

knowledge of the harassment.21 Educating employees on reporting duties will help ensure school can respond to allegations properly.

Much of the prescriptive grievance process also applies to K-12 schools. While K-12 schools are not required to have live hearings, they must still provide parties with the opportunity to ask questions of other parties and witnesses.22 The decision-maker can be a principal, but the separation of roles described above is still required.23 For schools used to their principals handling all discipline, this may present a significant change in process and a need to train more staff to handle these situations. Further, for K-12 schools, which tend to have smaller communities than institutions of higher education, it may be difficult to ensure that the decision-maker does not have bias or conflict of interest with the parties due to previous interactions. Although these may or may not prove to be actual conflicts based on the specific circumstances, schools should be prepared to address concerns from parties about bias and conflict of interest.

The 2020 Bostock decision looked at discrimination based on sexual orientation in the employment setting under Title VII of the Civil Rights Act of 1964.24 The Supreme Court in that decision found that Title VII prohibition on discrimination “because of sex” included sexual orientation and gender identity.25 Shortly after assuming office, President Biden issued an executive order instructing administrative agencies to examine how the Bostock decision applied to their rules and regulations.26 The Department of Justice and the Department of Education, which both enforce Title IX, issued guidance on the subject. In March 2021, the DOJ issued a memorandum, in which it declared that, as Title VII law has often informed Title IX and as the language of the laws is similar, the Bostock decision applied to Title IX as well.27 Later that summer, in June 2021, the Department of Education released a Notice of Public Interpretation.28 This notice indicated the Department’s intent to interpret Title IX and the federal regulations to include discrimination on the basis of sexual orientation and gender identity; the document also notified the public of the Department’s intent to enforce Title IX as if it were so written.29 The expansion of this definition has not been codified, and several State Attorneys General, including the Tennessee State Attorney General, have taken the stance that the Notice of Public Interpretation is outside the legal authority of an administrative agency.30 Shortly after this Notice, the Departments jointly released a Fact Sheet on the issue. This Fact Sheet included scenarios that the Office of Civil Rights would investigate. These scenarios included bullying on the basis of sexual orientation or gender identity, requiring students to go by their legal names and genders, and refusing to allow transgender athletes to participate in sports that align with their gender identity.31 In contrast, a recent Tennessee law prohibits transgender athletes from participating in sports that do not align with the athlete’s assigned-atbirth sex.32 Another Tennessee law prohibits K-12 schools from allowing transgender students to use communal school restrooms that align with their gender identity.33 Compliance with state law, if not carefully done, may put a school afoul of federal guidance. When crafting policies to address the concerns of transgender students in Tennessee, schools should work closely with counsel.

Although Tennessee state law regarding transgender athletes currently focuses on students in the K-12 environment, institutions should be mindful on the role of transgender athletes in collegiate sports.

The NCAA has issued its own policy regarding transgender athletes, which allows the athlete to compete with the team that aligns with their March 2022

gender identity, under certain conditions.34 While it does not enforce Title IX, the NCAA expects member institutions to comply with Title IX.35 The landscape of Title IX has changed immensely over the past fifty years, and it is certainly not finished changing. The Department of Education announced that it anticipates introducing a new notice of proposed rulemaking in April 2022.36 Based on guidance from this current administration, changes to the definition of sexual harassment and scope of Title IX are likely to be included. The announcement and the Notice of Public Interpretation lend themselves well to predicting the codification of sex discrimination including gender identity and sexual orientation. With new changes once again on the horizon, institutions of learning will likely find themselves leaning more and more on counsel and JD-preferred staffers.

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85 Fed. Reg. 30026 (May 19, 2020); 34 CFR §106.

See 34 C.F.R. §106.30(a) for the full definition. This article is not intended as legal advice nor as a comprehensive guide to complying with Title IX. 34 C.F.R. § 106.30 (a). See also 85 Fed. Reg. 30143 See 85 Fed. Reg. 30026, 30174 (May 19, 2020).

34 CFR § 106.44(a).

See 85 Fed. Reg. at 30197.

34 CFR § 106.44(a).

34 CFR § 106.45.

34 CFR § 106.45; 34 CFR §106.30.

34 CFR § 106.45(b)(6)(i).

See Doe v. Baum, 903 F.3d 575 (2018).

34 CFR §106.45(b)(6)(i).

34 CFR §106.45 (b)(1) (iv).

34 CFR §106.45(b)(1)(vii).

34 CFR §106.45(b)(7)(i).

34 CFR § 106.45(b)(1)(iii).

Id. Id.; 34 CFR §106.45(b)(10).

34 CFR §106.45(b)(5)(vi); 85 Fed. Reg. 30026, 30307.

34 CFR §106.8.

85 Fed. Reg. 30,026, 30,039.

34 CFR §106.45(b)(6)(ii).

34 CFR §106.45(b)(7)(i).

Bostock v. Clayton County, 140 S. Ct. 1731, 1740-43 (2020).

Id. Exec. Order No. 13,588, 86 Fed. Reg. 7023.

See Memorandum from Dep’t of Justice to Fed. Agency Civil Rights. Directors and General Counsels, Application of Bostock v. Clayton County to Title IX of the Education Amendments of 1972, (March 26, 2021).

Enforcement of Title IX of the Education Amendments of 1972 with Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County, 86 Fed. Reg. 32,637 (June 22, 2021).

Id. at 32,639.

See Letter from Atty Gen. Herbert Slatery III, et al., to President Joseph Biden, Administrative Action Related to Bostock v. Clayton County (July 7, 2021).

Dep’t. of Justice & Dep’t of Education, Confronting Anti-LGBTQI+ Harassment in Schools: A Resource for Students and Families, (June 2021).

2021 Tenn. Pub. Law Ch. 40 Tennessee Accommodations for All Children Act, 2021 Tenn. Pub. Law ch. 453.

NCAA, Transgender Student-Athlete Eligibility Review Procedures (Jan, 28, 2022), www.ncaa.org/sports/2022/1/28/transgender-studen-athlete-eligibility-reviewprocedures.aspx NCAA, Gender Equity Planning: Best Practices, www.ncaaorg.s3.amazonaws.com/ inclusion/bestprac/NCAAInc_BestPracticeGenderEquity.pdf Statement by U.S. Department of Education Assistant Secretary for Civil Rights Catherine Lhamon on Title IX Update in Fall 2021 Unified Agenda and Regulator Plan, US Dep’t of Educ. (Dec. 10, 2021), https://www.ed.gov/news/press-releases/ statement-us-department-education-assistant-secretary-office-civil-rightscatherine-lhamon-title-ix-update-fall-2021-unified-agenda-and-regulatory-plan?fb clid=IwAR1Fdz7TnNd1t5Idb0-NRe-9DUQk1xA4tqxP1bMzqC-CmzE6NdmTX8dlWH8.

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L E G A L LY W E I R D By: Lisa J. Hall Hodges Doughty & Carson

START SPREADING THE NEWS: JETS AND GIANTS ACTUALLY PLAY IN NEW JERSEY Are you sitting down? Perhaps watching football? I do hope you are sitting down, because I have to tell you something that is likely going to cause severe emotional distress if you are or were a New Yorker. The New York Giants and New York Jets do not engage in sporting events in the State of New York. The stadium they share, MetLife Stadium, is located in a neighboring state called “New Jersey.”

I know what you are thinking. Most Giants and Jets fans live in New York, and if they want to attend a game live and in person, it is a four hour roundtrip endeavor, involving public transportation or fuel, tolls and parking costs. Forget about taking an Uber after the game, unless you want to pay $125 or more. Compare this with transportation to see the Yankees at Yankee Stadium in the Bronx or the Knicks and Rangers at Madison Square Garden, which are easy trips by subway or bus and much faster than traveling to East Rutherford, New Jersey. The laborious nature of the commute to these games is a direct cause of the fact that the MetLife Stadium routinely has a large number of empty seats during Jets and Giants games. The Jets and Giants make money at the expense of their fans, who pay extra to travel to New Jersey, not to mention the “additional carbon footprint imposed on the environment.”

NFL fans enjoy a “sense of belonging and affiliation” known as “sports identification.” Factors that motivate people to become sports fans include eustress (positive response to stress), self-esteem, escape, entertainment, aesthetic, group affiliation and family needs.

Unfortunately, once New Yorkers learn that the Jets and Giants play in New Jersey, they lose their connection with these teams and sadly, only

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maintain minimal sports identification with the teams.

In the last ten years, the Jets record has been 51-93, and the Giants has been 57-87. Obviously, their fans are “insulted, ridiculed, harassed, tormented, and bullied” by fellow NFL fans of superior teams, due to the teams’ affiliation with New York as opposed to their actual home of New Jersey. This has caused depression, sadness, and anxiety, but most devastatingly, it has caused limited and damaged eustress. (I had never heard of “eustress” before today, but now that I know what it is and that some people have limited amounts of it, I will never get over it). It is clear that if the Giants and Jets return to New York, their fans will finally have the healthy social, psychological and physical benefits of sports identification of their home NFL teams restored. This is so exciting to imagine.

I know what you are thinking: “How can I maximize my eustress and the eustress of everyone around me?” Maybe you wish to restore your own sports identification. Maybe you want to reduce the obvious carbon footprint these teams have created by virtue of their location in New Jersey. Maybe you just want to be fairly compensated for your share of the $4 billion in damages the Jets and Giants have caused their fans.

I actually have good news! A class action lawsuit has already been filed to accomplish these goals and more! Abdiell Suero v. NFL, New York Football Giants, Inc., New York Jets, LLC, and MetLife Stadium Company, LLC, United States District Court, S.D.N.Y., No. 1:22-cv-31. Feel free to reach out to Mr. Suero’s attorney for more details about how you can join this class and as a result, be the change you wish to see in New York.

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March 2022

SCHOOLED IN ETHICS By: Paula Schaefer

Associate Dean for Academic Affairs and Art Stolnitz Professor of Law University of Tennessee College of Law

NAVIGATING BAD LEGAL ETHICS FROM A SENIOR ATTORNEY I recently posed the following hypothetical to my Professional Responsibility students: Associate Cherise tells Partner Steve that her recent legal research reveals that their brief (filed with an appellate court) failed to cite an important case. The case is clearly applicable, hurts their argument, and should have been addressed in their brief. Cherise will be arguing the case in the appellate court the next day. She has reviewed RPC 3.3.1 Based on that rule, she has decided she should reveal the case to the court. Steve tells Cherise: “It’s not a big deal.

Opposing counsel didn’t find the case. The court probably won’t find it either. We will definitely lose if you raise the issue during oral argument. You need to drop this.” What should Cherise do?

Admittedly, the question is simpler than it would be in real life. My students are required to assume the case should be disclosed pursuant to Rule 3.3. Cherise has already made that determination. And Steve doesn’t argue that Rule 3.3 is inapplicable. Instead, he justifies non-disclosure as good for the client and unlikely to be detected by the court.

My students do not hesitate, because they know what Cherise must do: she needs to disclose the adverse authority to the court. I ask if it might be difficult to contradict Steve’s instructions. They recognize that it would be a tough conversation, but they have no doubt that Cherise will do the right thing. Certainly, they would do the right thing.

In the 1960’s, Stanley Milgram’s work on obedience was groundbreaking.2 His research addressed how far a person would go in carrying out an authority figure’s instructions when those instructions conflicted with the person’s conscience. Test subjects were told that they were participating in a study about the impact of punishment on learning.

A person in a white lab coat (the authority figure) directed the subject to flip a switch that would provide an electric shock to a “learner” (who was strapped to a chair and connected to an electrode) when the learner provided an incorrect answer to a question. The subjects were put in control of a shock generator that contained thirty switches that ranged from 15 volts (marked “Slight Shock”) all the way to 450 volts (two switches prior were marked “Danger: Severe Shock” and the final two switches were marked XXX.). The subject was directed to increase the shock’s intensity when the learner gave a wrong answer. The learner was behind a screen, but the subject could hear his pained grunts and then screams as he was shocked after each incorrect answer. When the learner pleaded the subject to stop, the subject looked to the man in the white lab coat for direction; that man consistently told the subject that the experiment must continue.

Milgram’s experiment revealed that almost two-thirds of study participants were willing to shock the learner at the direction of the man in the lab coat. In post-experiment interviews, Milgram found that most subjects did not view themselves as responsible for their conduct. Subjects explained they would not have engaged in this conduct themselves, but that they did it because they were required to by the man in the lab coat—the person in charge.

Junior attorneys can be in a similar situation. Even if they believe their conduct is prohibited by professional conduct rules, they will look

for guidance from an authority figure—a senior attorney like Steve in our hypothetical. If the senior attorney tells the junior attorney to engage in the conduct, it will be difficult for the junior attorney to act in accordance with the rules. It is undoubtedly even more difficult when the senior attorney makes an argument that the rule does not apply at all—something that an attorney might do when determining if a bad case is “directly adverse” and must be disclosed despite being overlooked by an opponent.3 Perhaps just as important, Milgram also studied how good we are at predicting unethical obedience—by others and ourselves. In one study, Milgram asked students to predict the behavior of 100 hypothetical subjects in the study. These students predicted that only between 0 and 3% would shock to the highest level. In another study, Milgram asked subjects to predict whether they personally would continue the shocks to the end. Not a single person predicted that they would give the highest level of shock. These predictions are striking when compared to what happened in the actual experiment. The results tell us that we are more likely to follow bad advice than we may think.

But it is not all bad news. In one of numerous variations on Milgram’s original experiment, the subject was given competing instructions from two authority figures—each in a lab coat and each seemingly playing a similar role in the experiment. When the learner loudly protested at the 150-volt level, the men in lab coats provided the subject with contradictory commands. One told the subject that he must continue the experiment, while the other told him the experiment has to stop. Of twenty subjects, eighteen immediately ended the experiment, one ended the experiment at the following volt level, and one had already stopped prior to the disagreement between the experimenters.

The take-away for junior attorneys is that a competing authority figure can help you find your way through an ethical dilemma. There are several avenues for an attorney to get advice from a second authority figure. An attorney may want to consult an additional senior attorney at the law firm. That could be the firm’s ethics counsel or another trusted senior colleague who can provide a second opinion. Either type of senior attorney can help the junior attorney navigate the situation with the other attorney. But even when there is not another firm attorney who can play this role, RPC 1.6(b)(4) allows an attorney to consult with an outside attorney to seek advice about compliance with professional conduct rules.

This outside attorney could be ethics counsel at the Board of Professional Responsibility4 or a trusted attorney at another firm. Looking to an outside advisor—someone detached from the situation—can help a junior attorney navigate a difficult ethics question, despite bad advice from a senior attorney.

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Tennessee RPC 3.3(a)(2) provides that a lawyer shall not “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”

Stanley Milgram, Behavioral Study of Obedience, Journal of Abnormal and Social Psychology, Vol. 67, No. 4, 371, 375 (1963); Stanley Milgram, Obedience to Authority An Experimental View 3 (1974).

The phrase “directly adverse” is not as flexible as some attorneys may perceive.

See, e.g., Tyler v. Alaska, 47 P.3d 1095, 1104 (Alaska Ct. App. 2001); Miche Bag, LLC v. Compton, 2009 WL 2338150, *1-2 (D. Utah 2009).

The TBPR provides a link for informal ethics inquiries. https://www.tbpr.org/forlegal-professionals/informal-ethics-inquiries

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

March 2022

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MONTHLY MEETING Plan now to attend the Barristers monthly meeting on Wednesday, March 9, starting at 5:15 pm at outdoor patio at The Firefly at the Hilton, located at 501 W. Church Avenue, Knoxville. Social time starts at 5:00 pm.

Register by clicking March 9 on the event calendar at www.knoxbar.org.

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 Co. Public Defender’s Community Law Office, the UT College of Law, LMU- 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. The next Veterans Legal Clinic will be held in person at the Knoxville Community Law Office on March 9. Sign up at https://www.knoxbar.org/?pg=Upcoming-Legal-Clinics.

VOLUNTEER BREAKFAST COMMITTEE CONTINUES OPERATIONS The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. at the Volunteer Ministry Center, located at 511 N. Broadway, Knoxville, Tennessee. The Barristers Volunteer Breakfast Committee always needs volunteers to serve food or sponsor. The cost is $150 for sponsoring, and we need 4-5 volunteers. If you are unable to fund the breakfast, the Barristers will subsidize the cost of the breakfast.

We meet at 6:15 a.m. and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30 a.m. It’s a great way

to serve the community! Please contact either Matt Knable at (865) 360-5044 or Laura Wyrick at (865) 297-5511 with any questions and/or about volunteering.

VOLUNTEER FOR ANNUAL HIGH SCHOOL MOCK TRIAL COMPETITION The High School Mock Trial Regional Competition will occur during the first weekend of March in the City County Building on March 4 and 5, and the final two teams will advance to the championship round held in LMU’s Business Courtroom on March 6. The competition consists of five rounds, and each round requires, at a minimum, six bailiffs, 16 scoring judges, and six presiding judges. This program is supported entirely by volunteer efforts. Traditionally, East Tennessee law school students, attorneys, and judges have donated their time to serve in the roles of bailiffs, scoring judges, and presiding judges during the competition.

Please contact either Bridget Pyman at (865) 546-7000 or Isaac Westling at (865) 637-2900 with any questions, and if you are interested in volunteering, you can sign up at: https://memcentral.wufoo.com/forms/ z11pjxd21x2jchv/.

MEMBERSHIP COMMITTEE HOSTS MARCH MADNESS SOCIAL HOUR The Barristers Membership Committee is planning a March Madness themed social hour for the KBA Barristers to socialize, network, and enjoy quality time with their friends and peers. The event is scheduled from 5:00-7:00pm on Thursday, March 24 at Hops & Hollers, a Beer Bar & Beer Garden outside of Downtown Knoxville. Register by clicking March 24 on the event calendar at www.knoxbar.org. Stay tuned for details about the KBA March Madness Bracket Challenge.

Photo Ops

Barristers Veterans Legal Advice Clinic

Several veterans and their families received legal advice from attorneys and law students at the Barristers Veterans Legal Advice Clinic on February 9 at the Knox County Public Defender’s Community Law Office. Our thanks to all of the volunteers for making the monthly clinic a continued success.

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March 2022

BETTER By: Melissa B. Carrasco

Egerton, McAfee, Armistead & Davis, P.C.

NEVER STOP SPEAKING “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”

This was the text of Senate Resolution 12, introduced on January 10, 1878, by the Republican Senator from California, Aaron Augustus Sargent.1 Senator Sargent was born in Newburyport, Massachusetts.2 He met his wife, Ellen, when they were teenagers, and he vowed to marry her as soon as he had the financial means to do so.3 For a budding newspaper reporter, that was easier said than done; so when gold was discovered in California, twenty-two-year-old Aaron borrowed some money, kissed Ellen goodbye, and headed West.4 Mining didn’t exactly work out, so Aaron did what any young newspaperman would do: he started a newspaper—the Nevada Journal in Nevada City, California. After three years, he returned to Massachusetts, married Ellen, and they headed back to start their new life in California.5 The next several years were busy for the Sargents. After Ellen became acclimated to her new life in California, she began speaking up in support of women’s rights—particularly the right to vote.6 She became good friends with fellow Massachusetts native Susan B. Anthony, and in 1869, Ellen founded the Nevada County Women’s Suffrage Association. Later that year, Susan B. Anthony and Elizabeth Cady Stanton founded the National Women’s Suffrage Association, and Ellen became its treasurer.7 In the meantime, Aaron was quite busy. In addition to running the newspaper, Aaron started studying the law, and he was admitted to the California bar two years later.8 Then, he entered politics, was elected District Attorney, and in 1860, he became the vice president of the Republican National Convention. That was the year that the Republicans selected Abraham Lincoln as its presidential candidate after three contentious votes.9 In 1872, three years after the National Women’s Suffrage Association was founded, Aaron was elected Senator, and the couple moved their family of five – 2 daughters and a son – to Washington D.C.10 By that time, Susan B. Anthony was such a good friend that she took the long train ride with them.11 In fact, Ellen and Aaron made sure their home in Washington D.C. was always open for Ms. Anthony, Ms. Stanton, and other advocates for women’s rights. By 1872, it had been twenty-four years since the Seneca Falls Convention formally launched the women’s suffrage movement, and these leaders needed a place to stay in D.C.—close to the people who could cast the deciding votes.

The Sargents did more than just open their home. Aaron (now Senator Sargent) put on his lawyer hat yet again and advocated for the release of Ms. Anthony after she was arrested for refusing to pay a fine for illegally registering to vote.12 He went all the way to President Grant, and Ms. Anthony was released.

Then, in 1878, the last year of his term, Senator Sargent introduced Senate Resolution 12.13 This was not the first time anyone had introduced a proposal which would give women the right to vote. Bills, resolutions, and petitions had been introduced periodically for over a March 2022

decade.14 However, this time, Senator Sargent went further. When he introduced Senate Resolution 12, he made a statement—really a request, “We ask that women may be permitted in person, and on behalf of the thousands of women who are petitioning Congress . . . to be heard . . . before the Senate and House.”15 He asked that women finally be allowed to have a voice in Congress, which ironically, is essentially what the right to vote would provide.

The Senate agreed, and several women were permitted to testify before the Senate Committee on Privileges and Elections. They were given only two hours.16 The Senators listened, and then they voted to postpone Senator Sargent’s resolution indefinitely.17 It would be another 41 years before Sargent’s resolution would be passed by the Senate and then sent to the states for ratification as the Nineteenth Amendment.18 Neither Aaron nor Ellen lived to see it.

Aaron died nine years later in 1887.

Ellen returned to California, settling in San Francisco, where she continued speaking up for women’s rights in general, founding the Century Club, which was San Francisco’s first, private women’s club.19 But, most of all, she never stopped advocating for women’s right to vote. When she was seventy-four, she began filing tax protest lawsuits— after all, “taxation without representation” dates back to the American Revolution.20 In 1911, she campaigned for a referendum to amend the California constitution to give women the right to vote. Ellen died a few days before California passed the referendum, so she was never able to see her dream realized.21 But, as word of her passing spread throughout California, flags were lowered to half-staff in recognition of Ellen’s indelible mark upon the state.22 It was the first time that a woman had receive such an honor.

On June 4, 1919, nearly eight years after Ellen passed away, the Susan B. Anthony Amendment, originally introduce by Ellen’s husband Aaron Sargent, finally passed in the Senate and was signed by VicePresident Thomas Marshall.23 Its language was exactly as Aaron had penned it forty-one years earlier: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”

Aaron and Ellen Sargent did not live to see the Nineteenth Amendment ratified. But, what they did see is the future that we have enjoyed for over a century—that having both a voice and a vote is necessary to give any person the opportunity to achieve their highest potential. And so, they worked to leave us something better.

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United States Senate, Woman Suffrage Centennial, https://www.senate.gov/ artandhistory/history/People/Women/Nineteenth_Amendment_Vertical_Timeline. htm, last visited Feb. 5, 2022.

Gary Noy, Area Couple Fought for Women’s Rights; Sen. Aaron Sargent Wrote Words that Became 19th Amendment to U.S. Constitution, The Union (Jun. 17, 2004), available at https://www.theunion.com/news/area-couple-fought-for-womensrights-sen-aaron-sargent-wrote-words-that-became-19th-amendment-to-u-sconstitution/.

Id. Id.

continued on page 22

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B E T T E R , continued from page 21 5 6

7 8 9

10 11 12

13 14 15 16

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Id. Bernard Zimmerman, 19th Amendment Anniversary: “The Ballot, in the Hands of Women, Would Help to Redeem the World,” The Union (Aug. 18, 2020), available at https://www.theunion.com/news/19th-amendment-anniversary-the-ballot-in-thehands-of-women-would-help-to-redeem-the-world/.

Id. Noy, supra n.2.

Kenan Heise, The 1860 Republican Convention (Chicago Tribune Dec. 18, 2007), available at https://www.chicagotribune.com/nation-world/chi-chicagodaysrepublicanconvention-story-story.html.

Zimmerman, supra n. 6.

Id. Mae Silver, Ellen Clark Sargent, https://www.foundsf.org/index.php?title=Ellen_ Clark_Sargent, last visited Feb. 5, 2022.

United States Senate, supra n. 1.

Id. Id. Senate Journal, Ch. 20 (1878), available at https://www.archives.gov/legislative/ guide/senate/chapter-20.html.

Id. United States Senate, supra n. 1.

Zimmerman, supra n. 6.

Id. Silver, supra n. 12.

Zimmerman, supra n. 6.

United States Senate, supra n.1.

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March 2022

GRAMMAR GRINCH By: Sarah M. Booher Garza Law Firm, PLLC

A WORD AFTER A WORD AFTER A WORD IS POWER: WRITING ADVICE FROM GREAT NOVELISTS Any time I am lucky enough to run into Federal Defender Beth Ford, the first thing I ask my fellow bookworm is if she’s read anything good lately.1 Reading is my Tennessee football all year round.

Let’s be honest - I’d much rather be curled up at home reading than at work writing a demand, or a complaint, or a brief. That’s just tedious old legal stuff. Or is it? What can we glean from the magic of fiction that we can carry with us into the workplace reality to make us better written practitioners? What can the “greats” tell us about telling our own legal stories? Turns out, quite a bit.

Plot your story first. – Agatha Christie For a lot of novelists, figuring out what they’re doing and how to start is the hardest part. The same is generally true for us. Before you put fingers to keyboard or pen to paper, make a plan. Take the time to determine what your most important points are, the best way to organize them, and the best tone to convey them.

Get the big truth first. If you get the big truth, the small truths will accumulate around it. Let them be magnetized to it, drawn to it, and then cling to it. - Ray Bradbury Bradbury believed it was difficult to keep the passion for a budding novel alive long enough to finish it, so you had to get in there and immediately find your truth and let everything else fall in around it.

Many of our legal writing professors taught this concept as “start with our best argument.” Either way, don’t waste time. Respect your readers (especially your judges) enough to get straight to the point.

If a sentence, no matter how excellent, does not illuminate your subject in some new and useful way, scratch it out.

– Kurt Vonnegut Make sure each and every word you write in your legal documents actively contributes to building or strengthening your points. Read every sentence of your document independently and ask yourself why it is there.

Does it add value? If it doesn’t, it’s just verbal and/or legal fidgeting that should be deleted.

The first thing I do in the morning is brush my teeth and sharpen my tongue. – Dorothy Parker My legal writing professor used to ask students in the margins of their poor or average papers if they liked their tea tepid, too. In other words, stop using passive voice, make more accurate word choices, and confidently state and support your position. After all, we’re here to win, and you don’t have to be disrespectful to have a sharp tongue!

What is writing? Telepathy, of course. - Stephen King Huh? <scratches head> What King is getting at here is that the words on the page are not what’s ultimately and supremely important.

What’s important is that we are trying to get ideas from our head into someone else’s head, and that transfer is happening across time, experience, and nuance.

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Delete the adjectives and you’ll have the facts. – Harper Lee Be cognizant not only of your opponent’s embellishments, but of your own, too. Any given exaggeration is not necessarily a bad thing, but you might be using it to cover up a weakness in your story. It might also give you a reputation amongst your peers as having a flair for the dramatic. Consider taking a better approach than writing “fluffy facts”.

Own it up front, state it subtly and toward the end of your argument, or pair/substitute it with a less vulnerable fact.

Don’t tell me the moon is shining; show me the glint of light on broken glass. – Anton Checkhov If you never had a professor underline a sentence on an essay you submitted with “conclusory” written in the margin beside it, did you even go to law school? Effective written advocacy shows the reader why your argument prevails. Often, the supporting details that are obscured by conclusory statements are key details that aren’t elicited until a motion hearing that would have otherwise been avoidable. Including the “how” and “why” in your legal writing will make you a more effective and efficient advocate.

Language can never live up to life once and for all. Nor should it. Language can never “pin down” slavery, genocide, war. Nor should it yearn for the arrogance to be able to do so. Its force, its felicity is in its reach toward the ineffable.

– Toni Morrison Harnessing the power of the written word is inextricably intertwined with appreciating its inherent failures. Words don’t always do justice and that’s a hard truth for a profession so reliant upon them. However, being cognizant of this reality allows the legal writer to be authentic. Grandiose, sweeping language has a place, but it’s generally the dramatic stage. Being a powerful written advocate means tempering force with authenticity.

Never use a long word when a short one will do.

– George Orwell If I had a ten-dollar bill for every time one of my professors told me to stop using ten-dollar words, I’d be on vacation right now. Although we want our writing to be intelligent and polished, sesquipedalian2 writing can often come across as stuffy and condescending. Arguments can be made most effectively when our word choices are straightforward and concise.

In summary, effective writing is a discipline in mindfulness. For attorneys, this means mindfulness in our communication and advocacy.

While perspectives on writing may vary across the legal field, we can all agree that it is a necessary tool in our professional toolbox, and one worth being intentional with regarding growth and improvement.

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Beth, if you’re reading this, my most recent favorites are Great Circle by Maggie Shipstead and Donuts and Other Proclamations of Love by Jared Reck.

See what I did there?

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OF LOCAL LORE & LAWYERS By: Joe Jarret, J.D., Ph.D Attorney, University of Tennessee

HUGH LAWSON McCLUNG: EAST TENNESSEE LAWYER, JUDGE, PHILANTHROPIST Throughout my public sector legal career, I have been afforded the opportunity to serve as an adjunct instructor for various institutions of higher learning. In so doing, I always made it my practice to learn as much about the history of the institution as possible. My first such opportunity came when I was invited to teach several courses on behalf of students studying at BethuneCookman University (BCU), in Daytona Beach, Florida. BCU is a historically African American college, and I was delighted to learn that several of the African American soldiers with whom I served in the Army were attending there just as I began teaching. During new employee orientation, I learned that Mary McLeod Bethune opened the Daytona Literary and Industrial Training School for Negro Girls— what would become BethuneCookman University—“with $1.50, faith in God and five little girls, along with Dr. Bethune’s son, Albert.” 1 Dr. Bethune went on to become a national and international figure with a long list of notable accomplishments, including counseling US presidents, playing a role in the founding of the United Nations and creating an influential African American women’s organization. She also helped found the United Negro College Fund, of which Bethune-Cookman was a charter member. The University was a crowning achievement in a storied career. 2 When I started practicing law in Knox County, I was offered an adjunct instructor position with the University of Tennessee’s Graduate School of Public Policy and Administration. After accepting the position, I went to work learning as much about the history of UT as possible. By the time I accepted a full-time teaching position with UT, I was pretty glib about its magnificent history and contribution to higher learning in Tennessee. It wasn’t until I became a UT alum (Ph.D., Educational Leadership), that I learned about the namesake of the building in which my office is located, to wit, McClung Tower, named after Hugh Lawson McClung. As fate or coincidence would have it, Hugh Lawson McClung was, among other things, an East Tennessee lawyer and judge.

Judge Hugh Lawson McClung was born on June 2, 1858, in Russellville, Tennessee to Hugh Lawson (1810-1891) and Anna Gillespie McClung (1825-1875). A great-grandson of James White,

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Knoxville’s founder, he graduated from the University of Tennessee with his BA degree in 1877 and was admitted to the Tennessee bar in 1879. During his professional life, he was a member of the law firm of Webb & McClung (later Webb, McClung & Baker), a Chancellor of the Knoxville Chancery Court, and ultimately, a “Special Justice of the Tennessee Supreme Court.” In Judge McClung’s time, the Chief Judge of the Tennessee Supreme Court would occasionally request that the Governor temporarily appoint a special justice during the absence of one of the members of the court. In Judge McClung’s case, it was Governor Benton McMillon, who served as the 27th Governor of Tennessee from 1899 to 1903, who appointed him a special justice at the request of Tennessee Supreme Court Chief Justice David L. Snodgrass.

Justice Snodgrass probably merits an article of his own, considering the fact that his antics outside of the courtroom were, shall we say, un-justice like. For instance, in 1895, after a heated argument with a Chattanooga attorney who was openly critical of the court in general, and Justice Snograss in particular, Justice Snodgrass, claiming his critic was reaching for a firearm, drew his own concealed pistol and shot the critic, inflicting a minor wound to his arm.3 Needless to say, there’s more to the story, best saved for another day.

Getting back to Justice McClung, along with his legal duties, he also served as a Trustee of the University of Tennessee, a Trustee and Chairman of the Board of the East Tennessee Institute for Girls, a Trustee and President of the Board of the Robert N. Strong Hospital, a Trustee of the Knoxville Public Library, and the director and president of the Holston National Bank.

After a life of public service and philanthropy, Judge McClung passed away on April 25, 1936. He is buried in Knoxville’s Greenwood Cemetery. Presently, over 1000 students a day pass by the building that is his namesake, most of whom are unaware of the legacy of public service left behind by this dedicated, lawyer, judge, philanthropist and civic leader.

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See https://www.cookman.edu/history/index.html for a history of BCU. Id. For more information on Justice Snograss go to http://www.hamiltoncountyherald. com

March 2022

BARRISTER BITES By: Angelia Morie Nystrom

The University of Tennessee

FIREPITS, FRENCH TOAST AND A FEEDING FRENZY A couple of years ago, Hugh made an astute observation: our house was the “boring house” as related to teens. We didn’t have a lot of the high-tech entertainment that most of his friends had. We had often said that ours was an “Amish house.” We were proud of that… but apparently Trace was not. Trace was constantly asking to spend the night out…but never really wanted people to stay at our house. Understanding that Trace was getting older and that our time with him at home was limited, Hugh made it his personal mission to “make our house cool.” He purchased a big screen television and a gaming system for our bonus room. We moved Trace into a larger bedroom and decorated it with more grown up things. But something was missing.

Our outdoor space included a nice basketball goal and big driveway, but it also included a playset with a tree house. While it was great for an elementary schooler, it was decidedly not cool for a middle schooler—let alone high schoolers.

A wise man once said, “What goes up must come down.” While it is a reference to gravity, it also applies to playsets. During the COVID shutdown, our playset came down and the playground area became a firepit. All of a sudden, our house became cool again.

These days, on any given weekend, there are usually between 4 and 10 teenage boys at our house, sitting around the firepit. They talk, play music and eat lots of s’mores until all hours of the night. And, since most of them are not yet driving, they generally spend the night.

It is really a good thing that I love to cook because teenage boys love to eat. Growing up in a house of girls, I was unfamiliar with this phenomenon. Trace is a swimmer, and he eats copious amounts of food and drinks about a gallon of milk a day. He also only weighs about 120 lbs. Most of his friends are much larger and have appetites that rival – and often exceed-- his.

With the number of boys usually at our house, I needed more than just cereal. I also needed things that I could make the night before and bake the following morning. Lucky for me, The Trust Company does a quarterly newsletter and always includes a recipe on the back. Last month, they featured a Blackberry French Toast Casserole, which was adapted from a Southern Living recipe. They even included a full-color photo. It was billed as a recipe that could be prepared ahead and then baked the next day. I was intrigued.

The following weekend, I decided that I was going to use Trace and his buddies as my guinea pigs. The prep time on the French toast casserole was about 15 minutes, and the cook time was about 50 minutes.

It was warm and satisfying and reminded me of a really good bread March 2022

pudding. It was also a huge hit with teenage boys.

To prepare the Blackberry French Toast Casserole, you need the following ingredients: 1 ½ cups seedless blackberry jam, 1 French bread loaf sliced in 1” pieces, 6 large eggs, 1 8oz package of cream cheese (cubed in ½” pieces), 2 cups half and half, 1 TBS vanilla, and fresh blackberries.

Preheat oven to 350°. Heat jam in microwave in 15 second intervals until pourable. Place half of the bread cubes in a greased 9x13 baking dish and top with half the jam and dot with half of the cream cheese.

Repeat layers of bread cubes, jam and cream cheese.

Then, whisk eggs, half and half, and vanilla and pour over the top.

If you need more liquid to soak all the bread, add more half and half.

Top with fresh berries. Cover with foil and bake for 20 minutes, then uncover and bake for 20-30 more minutes or until the center is set.

You can serve with maple syrup (the preference of teenage boys), but my personal favorite is with whipped cream and a dash of cinnamon. The recipe also suggested pairing the French toast with a savory side of sausage or bacon. When I prepared it for the boys the first time, I baked Benton’s hickory smoked bacon in the oven.

Trace and his buddies will generally eat about a pound of bacon each. With pork prices rising higher and higher, I started looking for an alternative that would be savory and filling. I found the perfect recipe in Garden & Gun. Alma’s Breakfast Casserole is the perfect savory option when making breakfast or brunch for a crowd. To prepare it, you will need 1 lb hot pork breakfast sausage, 1/2 TBS cayenne pepper, 6 slices of light white bread, 10 large eggs, 2 cups shredded sharp cheddar cheese, 2 cups whole milk, ½ tsp mustard powder, 1 tsp black pepper.

To prepare it, preheat oven to 350°. Brown sausage in skillet with the cayenne pepper, breaking into small pieces. Allow to cool. Cut bread into cubes. Beat eggs in a large bowl. Mix in cheese, milk, mustard powder, and pepper. Add bread and sausage, then mix to combine. Pour into a 9x13 inch casserole dish, and bake for 45 minutes until brown on top. It is easy… and it is delicious.

I’ve made both recipes multiple times, and they are never-fails. As a bonus, they cook at the same temperature for roughly the same amount of time. They come out of the oven and are ready to serve together.

If you are looking to feed a hungry mob (whether it be your family, friends or a bunch of teenage boys), I can promise that these are crowd pleasers. Be warned, though: It may look like sharks having a feeding frenzy!

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Address Changes WELCOME NEW MEMBERS

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

THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS: NEW ATTORNEYS Bruce L. Beverly Lincoln Memorial University - Duncan School of Law Brewton Brownlow Couch United Way of Greater Knoxville Liza Guben District Attorney General, 6th Judicial District James Cody Haley The Law Office of J. Cody Haley Brian T. Hill Hebbler & Giordano Tyler Hood

Sarah C. Easter BPR #: 026281 Easter & DeVore, Attorneys PLLC 7417 Kingston Pike, Suite 202 Knoxville, TN 37919-5680 Ph: (865) 566-0125 sce@helpingclients.com

Mary J. Newton BPR #: 037605 Newton Law 550 W. Main St., Suite 600 Knoxville, TN 37902-2567 Ph: (865) 224-6591 Mary@MJNewtonLaw.com

Sarah W. Keith BPR #: 025767 Law Office of Sarah W. Keith 625 Market St., Suite 404 Knoxville, TN 37902-2212 Ph: (865) 213-3541 sarah.keith80@gmail.com

Taylor P. Scott BPR #: 038192 Bradley Arant Boult Cummings LLP 4823 Old Kingston Pike, Suite 130 Knoxville, TN 37919-6473 Ph: (615) 252-3559 tscott@bradley.com

Jordan T. Newport BPR #: 037604 Hagood Moody Hodge PLC 900 S. Gay Street, Suite 2100 Knoxville, TN 37902-1862 Ph: (865) 525-7313 jnewport@hagoodmoodyhodge.com

Lisa A. White BPR #: 026658 Mason Lietz & Klinger LLP 5101 Wisconsin Ave. NW, Suite 305 Washington, DC 20016-4138 Ph: (202) 640-1162 Lwhite@masonllp.com

Austin B. Lucas Andrew W. McRee Lincoln Memorial University - Duncan School of Law Jodi S. Patterson Kristi M. Pickens Peterson White, LLP Mary E. Roth DeRoyal Industries, Inc. Jessica Sue Sisk Jessica S. Sisk, Attorney at Law Brandon D. Sizemore Sizemore Law John Patrick Taylor U.S. Attorney’s Office Sarah Marie Thronsberry Gentry, Tipton & McLemore, P.C. Jeremiah B. Webb Clint William Wren Legal Aid of East Tennessee, Inc. John Stanford Young, III Bell & Young, PLLC

NEW LAW STUDENT MEMBERS Peter Amoruso Leroy J. Ellis Sean Gilkey Bianca M. Guzman Parker T. Henley Daniel P. Hesketh Deborah G. Moore Ryan C. Valdez

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March 2022

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

LEGITIMATE POLITICAL DISCOURSE Over my twenty years of teaching constitutional law I’ve often discussed current constitutional issues with my students. In fact, in my introductory course, I typically devote the first few minutes of each class not to the syllabus, but to the great controversies of the moment, from abortion to vaccine mandates.

Sometimes the issue is the changing composition of the Supreme Court. There have been six successful nominations during my teaching career: Alito; Sotomayor; Kagan; Gorsuch; Kavanaugh; and Barrett. My students and I have discussed them all. Each one has inspired reasoned and sometimes passionate debate. My current students will soon have another nomination to chew on: whomever President Biden nominates to replace retiring Associate Justice Breyer. In one sense, this nomination will likely be historic: Biden has promised to nominate a Black woman to the Court for the first time in U.S. history. But in another sense, it will be routine: Whomever Biden nominates will not change the Court’s ideological composition, where Republican nominees hold a six-three advantage over Democratic nominees. The new Justice, whoever she turns out to be, will write a lot of dissents.

Unfortunately, there is a far more urgent constitutional issue that my students and I are currently discussing: the continuing impact of the January 6 Insurrection. We have been following the January 6 Committee’s public activities, including its recent request for information from Ivanka Trump and several subpoenas directed at the people allegedly behind the creation of fake electoral college vote certifications.

The Committee’s public hearings will likely not occur before the end of the semester, so we are confined mostly to press reports about its activities and about the Insurrection itself.

Fortunately, from a teaching perspective, there is a lot happening.

Perhaps most notably, former President Donald Trump recently claimed that former Vice President Mike Pence had the constitutional authority to determine the outcome of the 2020 presidential election when the electoral votes were counted on January 6: “Unfortunately, he didn’t exercise that power. He could have overturned the election!”1 There are two important points to address in those two brief sentences. First, no vice president has the power to determine the outcome of a presidential election by picking and choosing among electoral votes. According to the Senate’s former in-house historian, Donald A. Ritchie, “[t]here’s not much he can do. His job is really just to read them out aloud. It’s up to the members if they are going to do anything.”2 Which makes eminent sense. Otherwise, Dan Quayle would certainly have chosen George H.W. Bush (and himself ) over Bill Clinton and Al Gore in January 1993. Al Gore would have chosen himself over George W. Bush in 2001. And I’m sure that Joe Biden would have been sorely tempted to choose Hilary Clinton over Donald Trump in 2017.

And that just ain’t the way it works.

The second point to note is that Trump claimed that Pence “could have overturned the election!” Trump’s opponents have pointed out that “overturned” seems to be an admission that Biden won the election. And

it doesn’t seem to be a misstatement. Elsewhere in the same speech, Trump talked about Pence’s power to “change the outcome.”3 A few days later, Pence repudiated Trump in no uncertain terms: “Frankly there is no idea more un-American than the notion that any one person could choose the American president. Under the Constitution, I had no right to change the outcome of our election. And Kamala Harris will have no right to overturn the election when we beat them in 2024.”4 Pence is correct constitutionally, although his political prediction is somewhat less certain. As his open break with Trump illustrates, the GOP seems to be at war with itself, and the flashpoint seems to be January 6.

Recently, the Republican National Committee censured Representatives Liz Cheney and Adam Kinzinger, the two Republican members of the January 6 Committee. The censure resolution states, in part, “Representatives Cheney and Kinzinger are participating in a Democrat-led persecution of ordinary citizens engaged in legitimate political discourse.”5 The reaction was immediate and harsh. Republican Senator Susan Collins of Maine said it was “absurd” to call the Insurrection “legitimate political discourse.”6 Senate Minority Leader Mitch McConnel criticized the RNC resolution and described the events of January 6 as a “violent insurrection for the purpose of trying to prevent the peaceful transfer of power, after a legitimately-certified election, from one administration to the next.”7 Collins and McConnell are correct. While our First Amendment gives broad protection to core political speech, as well as the right to assemble, it does not protect violence. It does not even protect threats of violence.8 Nor does it protect incitement of violence.9 On January 6, 2021, over a hundred police officers were injured in the Insurrection. Several of them died shortly thereafter. If that isn’t violence, I don’t know what is. And it sure isn’t “legitimate political discourse.”

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“Quiet part loud: Trump says Pence ‘could have overturned the election,’” The Guardian, January 31, 2022, available at: https://www.theguardian.com/usnews/2022/jan/31/donald-trump-mike-pence-overturn-election.

“Can Congress Overturn the Electoral College Results? Probably Not,” New York Times, December 14, 2020, available at: https://www.nytimes.com/2020/12/14/us/ politics/congress-election-role.html.

“Quiet part loud: Trump says Pence ‘could have overturned the election,’” The Guardian, January 31, 2022, available at: https://www.theguardian.com/usnews/2022/jan/31/donald-trump-mike-pence-overturn-election.

“In blunt rebuke, Pence says Trump was ‘wrong’ to claim vice president could have overturned 2020 election,” USA Today, February 4, 2022, available at: https://www. msn.com/en-us/news/politics/in-blunt-rebuke-pence-says-trump-was-wrong-toclaim-vice-president-could-have-overturned-2020-election/ar-AATu7hp.

“RESOLUTION TO FORMALLY CENSURE LIZ CHENEY AND ADAM KINZINGER AND TO NO LONGER SUPPORT THEM AS MEMBERS OF THE REPUBLICAN PARTY,” February 4, 2022, available at: https://int.nyt.com/data/documenttools/rnc-jan6resolution/2d6a07e7cf8d8cfb/full.pdf. “‘Legitimate political discourse’: Three words about Jan. 6 spark rift among Republicans,” Washington Post, February 8, 2022, available at: https://www. washingtonpost.com/politics/2022/02/08/gop-legitimate-political-discourse/.

Id. Virginia v. Black, 538 U.S. 343 (2003).

Brandenburg v. Ohio, 395 U.S. 444 (1969).

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

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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.

MITCHELL PANTER NAMED SHAREHOLDER AT LEWIS THOMASON Mitchell Panter’s practice centers on representing health care providers in professional liability matters and disciplinary investigations with Tennessee’s various health-related boards. He also assists providers with licensing and regulatory issues. Panter also represents businesses in complex commercial disputes involving trade secrets, restrictive covenants, and other breach of contract matters. Panter is an adjunct professor at the University of Tennessee College of Law, where he teaches Civil Pretrial Litigation.

fireplace in the meeting room!) and it would be a great office sharing arrangement for up to 4 people who are starting out. Rent includes utilities, alarm, and internet. Contact Perry Childress at (865) 8032545.

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Private office building for Lease at 5301 Kingston Pike. 1,907 square feet with 2 entrances, 4 offices, 2 conference rooms, and workspace located in the heart of Bearden! Space previously occupied by Landry & Azevedo. Email justin.cazana@avisonyoung. com or call 865-450-8883 for inquiries.

JUVENILE COURT ASSISTANCE BOARD 2022 BASKET AUCTION & SPRING LUNCH – APRIL 8 The Lunch and Silent Auction begins at 11:30 am followed by the presentation of the Susan D. Kovac Award to Knox County’s Most Outstanding Child Welfare Attorney. The live auction begins at 12:45 pm.

All proceeds to benefit the Volunteer Advisory Board and to assist with hosting the Annual Foster Care Appreciation Dinner for Foster Care parents and to help meet emergency needs of children in Foster Care.

FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates? Click on Public Resources and select “Career Classifieds” from the dropdown navigation.

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

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: •

Existing association of attorneys have available 1-2 office spaces in historical building 1816 Clinch Ave., across from Ft. Sanders Reg. Hospital to include parking spaces, conference room, reception area, receptionist, phone system, internet and Lexis access. Email cburks@ jnblawfirm.com or call (865) 522-4964 for inquires.

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1520 Highland Avenue in Fort Sanders Available - The offices are $1,000/month and includes a private office and access to a common area that includes a full kitchen, reception area, conference room and separate client meeting room, plus 1 free parking space in addition to free on street parking. The office is “Class A” space (there’s even a

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March 2022

M I T C H E L L’ S M A L A R K E Y By: T. Mitchell Panter

Lewis Thomason, P.C.

BELIEVE IT OR NOT, GEORGE ISN’T AT HOME My office is flanked between two fantastic lawyers of a different vintage. The walls that separate our offices are thin, so I hear essentially all of their phone conversations, which are often comical, sometimes frightening, but mostly routine. So, in all, I don’t mind the telephone traffic too much. What I don’t love, though, is their excessive use of voicemail.

It’s not their fault. It’s generational. And to be clear, there’s nothing particularly offensive about the voicemails themselves. None are particularly insightful or substantive, and they’re usually of this variety: “Hello _____. This is ______. It’s ____ o’clock on _____, and I’m calling to discuss the _______ case. When you get a chance, please give me a call at _______. Take care.”

It’s the meaninglessness of these voicemails that proves my essential thesis—i.e., that voicemails are generally stupid and a massive waste of time. Minus the case description, there’s nothing in a normal voicemail that you can’t get from looking at caller I.D., and it’s always fair to assume that if a person calls you and you miss their call, they’d like a return call when you’re available. Telling me who you are, that you want me to call you back, and giving me a number to call is stupid.

This problem could easily be solved by giving more detail in the voicemail, right? As Lee Corso tells us, “Not so fast, my friend.” The only thing worse than a standard voicemail is a long and rambling one.

(We’ve all hit * to record over an awkward message or received voicemails where the sender didn’t know that * was an option.)

This brings me to my larger “point,” which I use loosely: Al Gore gave us email. Why not use it? Email is the modern-day carrier pigeon.

It’s unintrusive, efficient, and easy to manage. Plus, unless you’re creepy to begin with (which is an issue I’ll save for another day), email spares everyone from the embarrassment of leaving or receiving a rambling or awkward voicemail (including those of the butt-dial variety). Even better, an email recipient—unlike in the case of voicemail—can respond quickly, substantively, and seamlessly (there’s literally nothing worse the competing string of “tag-you’re-it” voicemails).

Despite those newfangled “case machines,” which is a term for “computer” that a senior lawyer I once worked for used, and the ease of email, people continue to leave voicemails like it’s 2002. In theory, it shouldn’t be that big of a deal, and I should just move on. That’s not my style.

Plus, don’t underestimate the pain voicemails cause me. Like stepping on a scale, nothing good comes from listening to them. When the little red light on my office phone starts blinking, I break into a cold sweating and begin to pace excessively. To keep from totally losing it, I typically delete voicemails almost reflexively and without listening.

(Don’t worry, I return my calls.) You would think my anxiety has some rational limits. Sadly, it does not. My anxiety is the same if it’s a voicemail from the BPR or my drycleaner.

In writing this exposé, I was comforted to learn that I’m not alone.

March 2022

Apparently, my entire generation (I’m a millennial) despises voicemail.

According to a New York Times article on the topic, “Even millennials who came of age before cellphones were ubiquitous regard voicemail as a source of performance anxiety.”1 That same article—which recounts Jon Favreau’s scene from Swingers” in which he leaves a series of uncomfortable, self-sabotaging messages on the answering machine of a woman whose courtship he was seeking—makes a pretty compelling case for why millennials aren’t wrong in their disdain for voicemails:2 In sum: “A missed-call notification on a cellphone can be its own request for a call back. A “Call me” text will likely be read more quickly than a voice mail message will be heard, and if the matter is urgent, multiple missed calls may declare that most vociferously.”3 I can’t fully sympathize with the youngest of millennials or Gen Zers, who grew up texting and had, as the Times called it, “unmediated cellphone access to their friends.”4 To this day, my childhood home is in an area with no cell service, and I sent my first text message as a senior in high school. At the risk of sounding like your grandmother who recounts the days when “frankfurters only cost a nickel,”5 my first soiree into text land was tricky because each message was billed on an individualized basis.

Flush with cash from my lucrative job as the evening stock boy at the McMinnville Kroger (the happiest I’ve ever been, occupationally, by the way), I convinced my parents to add a text plan to our family cell phone package. I obviously don’t remember the exact cost, but it was somewhere south of $10 a month and came with up to 500 text messages (sent and received).

At first, that threshold was reasonable. With time, though, texting became more wide-spread, and I quickly began exceeding my allotment.

At times, the charges were so great that they mimicked long-distance calls with no MCI discount. My parents were, needless to say, pretty unhappy, and in the greatest injustice that had ever befallen upon me (at least at the time), I lost text privileges for several months. They were Ursula and I was Ariel. I had no voice and a heap of emotions (mostly angst). Still, I refused then to devolve to the draconian ways of voicemails, and for the most part, I’ve kept that course through today.

Sadly, my colleagues refuse to jump on the bandwagon. One day, though, millennials will rule the world, and when we ascend the throne, we’re coming for you voicemail. Like home ownership, American cheese, retirement accounts, and canned tuna, you will be our next casualty.

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Teddy Wayne, At the Tone, Leave a What?, N.Y. TIMES, (June 13, 2014), https:// www.nytimes.com/2014/06/15/fashion/millennials-shy-away-from-voice-mail.html (last accessed Feb. 10, 2022).

Id. Id. Id. That’s a Big Daddy reference for those of you who aren’t familiar with Adam Sandler’s finer work.

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

PRO BONO SPOTLIGHT By: Caitlin Torney Pro Bono Project Attorney Legal Aid of East Tennessee

CLINIC VOLUNTEERS NEEDED: COME JOIN US! Clinics are a wonderful way to get involved in the community and help reach underserved populations. A few hours of your time can make such a difference in a client’s life! The Pro Bono Project has many inperson clinic opportunities planned for 2022 but will continue to offer phone advice and Zoom options for clients and attorneys whenever possible. Clients with transportation or medical issues who otherwise wouldn’t be able to attend in-person clinics have been able to access legal advice through Zoom and via phone. Many attorneys have indicated they prefer the flexibility of virtual volunteering as well. If you would like to be involved but are uncomfortable or unable to attend an in-person clinic, please email me directly and we can arrange for you to participate remotely.

I will briefly outline the clinics we are currently planning below.

Attorneys from all legal specialties are needed, as our clients have a wide range of legal concerns. Legal clinics are a great way to give back to your community, get CLE hours for the time you volunteer, and are a fun way to connect with other members of the local bar! Keep an eye on the KBA and Legal Aid’s websites and social media accounts for news and information about upcoming opportunities to volunteer.

Legal Advice Clinic for Veterans The Legal Advice Clinic for Veterans, held on the second Wednesday of each month at the Public Defender’s Community Law Office, is an excellent legal resource for our local veterans and veterans across East Tennessee. Attorneys from private firms, non-profit firms, and the Knoxville Bar form an advice team to tackle many of our veteran’s legal questions. This clinic is the first point of contact for many veterans in need to connect with local attorneys that can help outside the clinic with document preparation and more complex legal issues. The legal help provided is often as varied as the participants. Attorneys provide advice or brief services in areas such as family law, renter’s rights, bankruptcy, consumer protection, contract disputes, child support, personal injury, and more.

Faith and Justice Clinics The Knoxville Bar Association and community faith leaders partner with Legal Aid of East Tennessee to put on the Faith and Justice Legal Advice Clinic. Churches, mosques, and synagogues host the clinic in places of worship, a natural community gathering place. The safe, neutral space allows the conversations between participants and attorneys to be comfortable, useful, and efficient. The clinic offers free legal advice to anyone who shows up and is one of the most popular clinics for volunteers. We treasure the unity that this clinic builds, and we encourage you to come and take part!

Virtual Debt Relief Clinic – 2022 ABA Award Winner I am so excited to announce that the Virtual Debt Relief Clinic was recognized by the American Bar Association as the 2022 winner of the Louis M. Brown Award for Legal Access! This award honors programs that significantly improve the delivery of legal services and information to people with a moderate-level income. In 2022, we are partnering with other Legal Aid organizations to expand the clinic statewide. Our first Virtual Debt Relief Clinic of 2022 will be hosted by the Memphis Alliance for Legal Services on Saturday, April 30th. We still need attorneys in the Eastern District to volunteer at this clinic, as clients from our service area will likely attend.

In addition to the virtual clinic, we also hold a quarterly in-person Debt Relief clinic in Knoxville. The clinic is held at the Knox County Public Defender’s Community Law Office on Saturday mornings

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beginning at 9:00am. Judge Bauknight welcomes clients and volunteers and presents an overview of Chapter 7 bankruptcy. Following the presentation, volunteer attorneys give personalized advice to clients.

Attorneys who conclude that bankruptcy is an appropriate option often agree to pro bono or reduced-fee bankruptcy representation for clients at this clinic. Clinic dates for 2022 have been set and are listed below.

Virtual Pro Se Name Change Clinic LAET is excited to partner with Belmont School of Law and the Young Lawyer’s Division to host a virtual name change clinic in June for Pride Month. We regularly get calls across our service area from clients who would like help changing their legal name to reflect their gender identity. While we can place many clients with volunteer attorneys for full representation, the demand is high and many clients from our more rural counties struggle to access legal assistance. We also expect a fair number of domestic violence victims and immigrants to be interested in attending this clinic. We will announce a firm date in the next month and send out links to sign up to volunteer.

Pro Bono Program Outside of clinics, we are always looking for new volunteers to take cases on for full representation! Right now, we are seeing a huge demand for help with conservatorships and probate. If you are interested in taking pro bono cases, please feel free to reach out to me directly or go to our website, www.LAET.org to check out Pro Bono Matters, where you can browse available cases and find a case that appeals to you.

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Upcoming Clinic Opportunities Legal Advice Clinic for Veterans: In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. Phone advice options available.

• Wednesday March 9th, April 13th, May 11th Noon – 2pm • To sign up, please use the form on the KBA Website or email ctorney@laet.org.

Virtual Debt Relief Clinic: Via Zoom.

• Saturday April 30th 10:00am – Noon • To sign up, please email ctorney@laet.org.

Virtual Debt Relief Clinic: Via zoom, Saturday morning in June. Specific date TBD. Debt Relief Clinic: Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. advice options available.

• Saturday June 25th , September 10th , November 19th 9:00 AM – Noon • To sign up, please email ctorney@laet.org.

March 2022

TELL ME A STORY By: Grant Thomas Williamson

Associate, Bradley Arant Boult Cummings, LLP

THE IMPORTANCE OF SHOWING UP If you had talked to me at any time before the summer leading up to my Senior year of undergraduate school, going to law school would not have been something that was on my mind. Largely because of an incredible English teacher I was privileged to have in high school, I was dead set on finishing up my Bachelor of Arts Degree in English so that I could also teach English in high school and hopefully have a similar impact on future generations of students.

As you may have guessed, I am not a high school teacher today.

I decided during my Senior year to go to law school and, while the nuances of that decision are an entirely different story than the one I want to tell today, I can ultimately trace that decision back to one man: Joe Gaynor. Joe Gaynor is the father of one of my closest friends from high school, Alistair, an attorney in Georgia (where I grew up), and, outside of my own father, possibly the man in my life that I most respect and look up to. Joe Gaynor was the person who I first spoke with when going to law school was something I started to consider. And the prospect of being just a little bit like Joe Gaynor played a role in my decision to go to law school. (I promise I put more thought into law school than that, but, honestly, it probably was not that much more).

The particulars of this story escape me, but they are not important; what is important about the story is the impact that it had on me as a high school student and that it continues to have on me as I think about it almost daily as a husband, a new father, and as an attorney. Once upon a time in high school, I was an athlete – those days are long gone, sadly. At some point during my Senior year of high school, we had a relatively meaningless football game. It was not a playoff game, there were no possible records to be broken during the game, and as far as I can remember there was nothing else of note or particular importance about this one game. Joe Gaynor did not have any children who played on my high school football team or that were involved in any capacity with the game except as fans. Simply put, Joe Gaynor did not need to be at that football game.

And yet, despite the numerous reasons why the game did not matter and why Joe Gaynor would have been completely justified in not coming to the game, Joe Gaynor, as he always does, showed up because he wanted to support my friends on the team and because he wanted to support me. Showing up was not as easy as making the drive to this particular March 2022

game after he got off work: Joe Gaynor was out of town for the week leading up to the game (in New York, maybe) and had to shift his work schedule around and book a flight back to Georgia just to come to an admittedly meaningless high school football game that did not have any grand implications and that was not even an event for his own children.

Joe Gaynor moved mountains to show up for me at a meaningless high school football game, and that still means the world to me. Simply showing up for another person can have an incredible, lifelong impact, and I keep that in mind every day in how I approach my role as an attorney.

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