Legal Update: Tennessee Supreme Court – Evidence Cannot Be Used to Contradict Written Contract . . . Page 15 Schooled in Ethics: When Zealous Advocacy Becomes Extortion and Unethical Conduct . . . Page 21
A Monthly Publication of the Knoxville Bar Association | May 2019
A THANK YOU NOTE TO CHARLES AND JARED KUSHNER THE FIRST STEP ACT OF 2018
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In This Issue
Officers of the Knoxville Bar Association
COVER STORY
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President Elect Hanson R. Tipton
Treasurer Cheryl G. Rice
Immediate Past President Keith H. Burroughs
Secretary Jason H. Long
KBA Board of Governors Hon. Suzanne H. Bauknight Jamie Ballinger-Holden Loretta G. Cravens Kathryn St. Clair Ellis Elizabeth B. Ford
Rachel P. Hurt Allison S. Jackson Stephen Ross Johnson Elizabeth K.B. Meadows Mary D. Miller
T. Mitchell Panter Robert E. Pryor Jr. Mikel Towe
The Knoxville Bar Association Staff
Watch What You Say (Or “Don’t Say Nothin’ at all”)
The Future of Electronic Filing and Service in Knox County Trial Courts
No Phone Zone: Observation 101
Heading to Overtime! Proposed 2019 Update to the Federal Overtime Rules
Tennessee Supreme Court – Evidence Cannot Be Used to Contradict Written Contract
When Zealous Advocacy Becomes Extortion and Unethical Conduct
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Jonathan Guess Database Administrator
Lacey Dillon Programs Administrator
Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org Tracy Chain LRIS Administrator
Volume 47, Issue 5
Dicta
DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association. All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Watson (522-6522).
Dicta is the official publication of the Knoxville Bar Association
Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Sarah Booher Jennifer Dobbins Elizabeth B. Ford Joseph G. Jarret F. Regina Koho
Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Elizabeth Towe
Managing Editor Marsha Watson KBA Executive Director
DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. May 2019
DICTA
Judicial News Practice Tips
Management Counsel: Law Practice 101
Legal Update
Schooled in Ethics
WISDOM
8 Tammy Sharpe CLE & Sections Coordinator
President’s Message
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Marsha S. Watson Executive Director
A Thank You Note To Charles And Jared Kushner The First Step Act Of 2018
CRITICAL FOCUS
5 President Wynne du Mariau Caffey-Knight
May 2019
Outside My Office Window
Dear Arthur
Glory Days
Birthday Parties: The Next Frontier in Lawyer Advertising
Leading the Way – UT Law Institute for Professional Leadership
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Around The Community Legally Weird
Around The Bar
Hello My Name Is
Lisa Bailey
Urban Legends
The Knoxville Skyline: Profitting from the Butcher Brothers’ Tumultuous Legacy
Vite et crede
Just Doing Our Job
Of Local Lore & Lawyers
The Tennessee Supreme Court: The Formative Years
Bill & Phil Gadget of the Month
iPad Pro—Complete Laptop Replacement or Toy
Well Read
“Pardon me, Ray?”
Your Monthly Constitutional
Lies My Teacher Told Me
Long Winded
A Hollywood Script
Barrister Bites
The Best Part of Waking Up Is...
COMMON GROUND
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Section Notices/Event Calendar Barrister Bullets Bar Hopping Bench & Bar in the News Pro Bono Project Last Word
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SECTION NOTICES & EVENT CALENDAR
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. Join the ADR Section for the upcoming CLE program “Family Law Mediation” on May 6 featuring Melody Luhn. If you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777). Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. The next Pro Bono Debt Relief Clinic will be held on May 4 and volunteer registration is available by clicking May 4 in the event calendar at www.knoxbar.org. If you have a program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. Save the date for the Annual Corporate Counsel Update extended CLE on August 15. If you would like to get involved, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. Join the Criminal Justice section for a CLE entitled “Clearing the Fog: Juvenile Court Delinquency Practice Demystified” on June 20 featuring Tammy Hicks and Chris Kleiser. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Hedrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. Join the Employment Law Section for the CLE program “Workers’ Compensation in the Post-Reform Era: Navigating the System and Avoiding the Pitfalls” on July 25 featuring Judge Conner, Judge Johnson & Judge Lowe. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) and Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. Join the Family Law section for a CLE entitled “What’s New in Fourth Circuit: Accessing Record Online” on May 7 featuring Mike Hammond, Magistrate Richard Major and Robert Everett. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Section The Government & Public Service 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 & Public Lawyers section for a CLE on August 27 featuring Doug Overbey, U.S. Attorney for the Eastern District of TN. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Ron Mills (215-2050). Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. Join the Juvenile Court & Child Justice section for a CLE entitled “Adoption Law Update” on August 20 featuring Meghan Bodie. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2017 will automatically be opted-in to the section. On May 16 the Section will sponsor a “Wags & Bags Cornhole Tournament & Yappy Hour” at Bearden Beer Market. The section encourages all KBA members to bring your pups and your competitive spirit. Proceeds will be donated to a local animal shelter. For information about the Section, please contact Section Chairs Erica Green (525-5134) or Jimmy Snodgrass (545-4228). Senior Section The KBA Senior Section will meet next on Wednesday, June 5, 2019 at Calhoun’s on the River. The program title is “Ignored Heroes of World War II: The Manhattan Project workers of Oak Ridge, Tennessee” and will feature Richard Cook, Author & Historian. The luncheon will be held from 11:30 a.m. to 1:00 p.m. The price includes an entree, side item, salad and beverage. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307). Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963) or Patrick Slaughter (637-6258). If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963) or Patrick Slaughter (637-6258).
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Law Day Luncheon Pro Bono Debt Relief Clinic ADR Section CLE Law Office Tech Committee Meeting Membership Committee Meeting Veterans Legal Advice Clinic Barristers Meeting Federal Court Bench Bar Conference Judicial Committee Professionalism Committee Board of Governors Meeting Past Presidents Dinner Lunch & Learn New Lawyers Section Bags & Wags Memorial Service Diversity in the Profession Committee Meeting Knoxville Bar Foundation Dinner CLE Committee Meeting Publications Committee Meeting
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3 Trivia Night 4 Law Office Tech Committee Meeting 5 Senior Section 6 Barristers Arcade Social Hour 11 Professionalism Committee Meeting 11 In Chambers CLE-Magistrate Eckard 12 Veterans Legal Advice Clinic 12 Barristers Monthly Meeting 13 Lunch & Learn 17 Diversity in the Profession Committee Meeting n 19 Board of Governors Meeting n 25 Criminal Justice & Juvenile Court Section CLE n n n n n n n n n n
Mark Your Calendar Supreme Court Dinner September 4, 2019 May 2019
PRESIDENT’S MESSAGE By: Wynne Caffey-Knight Elmore, Stone & Caffey, PLLC
WATCH WHAT YOU SAY (OR “DON’T SAY NOTHIN’ AT ALL”) Occasionally, middle-of-the-night musings prompt me to jot onto a post-it or magazine sitting on the bedside table. One, meant to inspire my writing to you, said “I misplace remotes, hairbrushes, sunglasses and pens.” Those are all true, but I haven’t a clue how that was meant to evolve into a President’s Message. The latest, “Beautician v. Farmer,” makes perfect sense. It refers to my results of interest-aptitude testing from UT’s Career Center when I was trying to figure out what do with my undergraduate degree other than my careers of bartending and semiprofessional steel dart throwing. Those results are actually somewhat spot-on. Playing with hair and make-up was a favorite teen pastime. Gardening remains one of my great joys. Ultimately, a better choice for me was the law and the legal profession – those platforms critical to protecting freedom. So important is our work and the rule of law that our nation celebrates Law Day, established by President Eisenhower’s proclamation and later designated by Congress’s 1961 joint resolution for to be celebrated annually on May 1. One of my three focuses this year is returning to civil public discourse. We are bombarded with negativity from all sides – the press, social media, so-called entertainment, and sometimes, one another. Fortuitously for me, Law Day’s theme celebrates the cornerstones of a free, civil society: Free Speech, Free Press, Free Society.
on government power. Indeed, restricting speech and the press may be tantamount to restricting democracy. Look, for example, to the suppression of speech, and later to its protection, in the Civil Rights movement. Free speech was then and later recognized to include actions without words, ranging from burning draft cards to protest Vietnam to sitting in the front of the bus to protest segregation. Burning the American flag is protected, and Tennessee’s General Assembly has protected property owners’ placing political signs or flying the American flag as free speech.1 On the other side of the coin, while speech and the press may be free, they also have great capacity for harm. Of course, the Supreme Court has recognized limits, such as in wartime, sharing state secrets, libel, slander, or shouting fire in crowded theater. But perhaps there should be more of the self-imposed kind. Heaven knows free speech may never seem more precious than when accidentally hitting oneself with a hammer. My concern though is for the propensity to exercise our speech to the point of drowning out the voices of others. There is knowing when to speak, when not to speak, how to say something and how not to say something.
Litigators live by the credo to never ask a question on crossexamination unless they already know the answer or the answer does not matter. And, “a good lawyer In eighteenth century France, public WE HAVE FREEDOM OF disagreement with the king carried an almost certain SPEECH, BUT YOU GOT TO knows how to shut up when he’s won his case.”2 Parents raise their children with various mantras, death penalty. Voltaire, a citizen of the time, is WATCH WHAT YOU SAY. such as “Do unto others as you would have them mistakenly attributed for the powerful saying, “I may -TRACY MORGAN, COMEDIAN do unto you,” “before saying something ask yourself disapprove of what you say, but I will defend to the ‘is it kind, is it true, is it necessary,’” or the advice death your right to say it.” Even though those are Thumper learned, “If you can’t say somethin’ nice, don’t say nothin’ at all.” not his words, he was an early, vocal proponent of free speech and thereby The words “hate” and “dumb” were not looked well upon in Lochlin and clearly placed himself at risk. For Americans, The First Amendment Cynthia Caffey’s household. ensures “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the Politics, college campuses and public circumspection of law freedom of speech, or of the press; or the right of the people peaceably enforcement efforts – where there should be open dialogue and exchange to assemble, and to petition the Government for a redress of grievances.” - are some of the most vociferous and vicious verbal battle grounds. The This constitutional right, I venture to say, is a right of all humanity. trampling of free speech, through the exercise of free speech, is very Happy to borrow from great minds and leaders, I share some of their real. The legal profession, by its very nature in pitting one side against sentiments: another, is not immune from falling into the same trap. Putting aside •
If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter. George Washington
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Hand in hand with freedom of speech goes the power to be heard, to share in the decisions of government which shape men’s lives. Robert Kennedy
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Without freedom of thought, there can be no such thing as wisdom - and no such thing as public liberty without freedom of speech. Benjamin Franklin
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Our liberty depends on the freedom of the press and that cannot be limited without being lost. Thomas Jefferson
Not all nations have been so fortunately led with the foresight to memorialize these human rights as in a constitution or other law. The United Nations tried to do so globally in its Universal Declaration of Human Rights that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Freedom of speech and freedom of the press are essential for transparency, disseminating information, exchanging ideas and thoughtful discussion as checks May 2019
the liberty implications, consider just the effect on the interactions and relationships in our daily lives. Consider respecting the messenger, even if you do not agree with the message. Lawyers are charged with protecting our freedoms, but as servant leaders, also with leading by example. I believe for the most part we do a pretty good job of that. We are sometimes opponents, but not necessarily adversaries. We literally “cross the aisle” in court rooms every day to shake the hands of colleagues. Keep crossing that aisle.
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See Tenn. Code Ann. §§ 5-5-114, 6-54-144, 66-27-602, and Tennessee Freedom of Speech Act, Tenn. Code Ann. § 2-7-143. Alan Dershowitz.
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JUDICIAL NEWS By: Richard A. Major Knox County Criminal Court Administrator and Fourth Circuit Court Magistrate
THE FUTURE OF ELECTRONIC FILING AND SERVICE IN KNOX COUNTY TRIAL COURTS Knox County is dedicated to meeting the online expectations of an increasingly technology driven legal community. The law and the procedural rules regulating court system technology are rapidly developing. In response to these new developments, Knox County’s Court Clerks are working together in an unprecedented manner to address current needs and to anticipate the future requirements of all court system users. The Clerks are either implementing or experimenting with new online tools, self-service kiosks, electronic signatures and text messaging. All of the Court Clerks have adopted some form of electronic document management and are actively accelerating the number of courts that scan all of their filings. In Circuit Court and Fourth Circuit Court, these nascent document image repositories are even accessible to the public via an online portal. However, when it comes to court technology, the question most commonly posed is, “When are we going to start e-filing?” Given the significant efficiencies attorneys and courts enjoy from a well-executed electronic filing platform, this is a crucial question. Under Supreme Court Rule 46A, e-filing is defined as “the electronic transmission of documents in cases pending in the court, using the dedicated e-filing system maintained by the clerk of the court.” During the past year, the Court Clerks’ staff have conducted preliminary meetings to explore the feasibility of electronic filing solutions for the trial courts. Although introductory in nature, many of the trial court Judges earnestly support these efforts. An active partnership with the bar is essential to laying the groundwork for long term success in electronic filing. Furthermore, the County Mayor has recently formed a Court Technology Committee which includes the Court Clerks, the Knox County Department of Information Technology and other court system partners. The purpose of this committee is to plan the future of technology in the courts. An integral part of that conversation is electronic filing. Undoubtedly, there are clear efficiencies and user experience advantages inherent in shared case management, document imaging and electronic filing platforms. Given the benefits of an electronic filing platform, it is anticipated the committee will submit a recommendation for a case management system that includes an electronic filing component.
technological standards promulgated by the Supreme Court. Pleadings and other papers filed electronically under such local rules shall be considered the same as written papers. As this provision notes, electronic filing is permissible in Tennessee courts only when it is authorized by local rule. Additionally, the provision clarifies that electronically filed documents are equivalent to their physically filed counterparts. The Supreme Court delegated to the Administrative Office of the Courts the duty to develop the technological standards contemplated by the statute and rules. Since many attorneys practice in courts across different counties, addressing uniform standards for this new interface between attorneys and the courts, is a laudable goal. The standards set minimum data requirements that are intended to facilitate a consistent “look and feel” throughout the state. Furthermore, the standards detail the application process that courts must utilize to request the approval of an electronic filing vendor. Currently the Administrative Office of the Courts has pre-certified two commercial e-filing vendors for Knox County to consider. Only three months ago, the Tennessee Supreme Court adopted Rule 46A, which governs the electronic service (e-service) of papers that have been electronically filed pursuant to local rules of court. Rule 46 describes e-service as the automatically generated electronic transmission of notice that a document has been e-filed to all participants in a case, who are also registered users of that system. Electronic service will then have the same legal effect as traditional service of a paper document. Anyone who is not a registered user of a court’s e-filing system must still be served through traditional means. The technical functionality to support electronic service will become available to Knox County through the use of pre-certified e-filing vendors. Knox County is committed to making electronic filing available to its trial courts. The County Mayor’s staff and the court system are working closely together to examine case management platforms that integrate an electronic filing component. As the emerging legal landscape is now expanding the opportunities for electronic filing, Knox County is poised to be one of the first counties to make the option of e-filing available to all of its courts.
The history of electronic filing in Tennessee trial courts begins in 2010 with the adoption of Tennessee Rule of Civil Procedure 5B. Rule 5B permits electronic filing for civil cases in both Chancery and Circuit Courts. Shortly thereafter, Shelby County introduced electronic filing. More recently, Rutherford County and Davidson County have also adopted electronic filing in some of their courts. Just last year two significant expansions to the scope of electronic filing occurred. The Tennessee Rules of Criminal Procedure added Rule 49.2, permitting electronic filing in criminal cases as well. Moreover, Tennessee Code Annotated section 16-15-701 was enacted, allowing General Sessions Courts to commence electronic filing. Notably, under Supreme Court Rule 46, electronic filing is permitted in appellate courts. These recent developments indicate that the electronic filing landscape is quickly evolving. The text of the statute and rules all share the following relevant provision: Any court governed by these rules may, by local rule, allow papers to be filed, signed, or verified by electronic means compliant with May 2019
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OUTSIDE MY OFFICE WINDOW By: Robbie Pryor Pryor, Priest & Harber robertpryorjr.blogspot.com
DEAR ARTHUR When I heard Arthur was sick I decided to write him a letter. I knew his diagnosis was terrible, and I just had to make sure I offered a few words. After piddling and plodding my way through it, I finally wrapped it up, but before I could place it in the mail, damn if Arthur didn’t up and die on me. To be honest, I really didn’t believe he would die. He just didn’t seem like the kind of man who could do something so silly as to succumb to the common destiny of all humans. Can Atticus Finch die? I’d see him at Pete’s. He was at the courthouse. He was in front of City Council. Arthur was everywhere. I’d see him at every home football game. He had seats three rows in front of us. He would usually have Snake Cain with him. Snake would be wearing a baseball cap and Arthur his usual straw hat with band. He was a true fan, and there beneath a the crisp fall sky, blanketed in the beautiful sounds of the Pride of the Southland and the pageantry we all love, I watched him occasionally transform into his 8-year-old self. It would cause me to imagine him at the games with his father, sitting in those same seats in section U, yelling at the referees for a bad call and raising his hands above his head when a touchdown play was developing. He always made a point to look back and ask about my father, sincerely interested in how he was getting by. After a big play, it was a simple tip of the hat and that smile, the crooked one that made you think he knew more than you. I saw him the Friday before the last Bama game at Pete’s. Arthur greeted you with your first name, not “hello” or another standard greeting. Your name was the first word out of his mouth, and he said it like a drawn out question. “Raaaabbie?” he said. “How’s your dad?” He always made you feel like you were important, a friend. He told me and anyone in the restaurant listening that day that we were going to kill Alabama. Pete’s son, Joey, said Arthur always predicted we were going to kill Alabama - “Bet the house on it. Bet your wife, the car, bet it all.” His outlook, his enthusiasm, his unflappable good nature - if I were in a hostage situation, I’d want Arthur with me. There are plenty of broken hearts down at Pete’s. He would beat Pete to the restaurant in the morning, waiting for him to open up. Pete was in full-memory mode the other day when I was there. “Arthur complained when his coat rack was taken down.” Pete said. “He had to have a place for his hat.” Pete said this looking out onto Union Avenue, as if Arthur might walk in at any moment. Tisha, one of his regular servers, a sweet lady who has been taking care of people at Pete’s for 20 years, laughed through tears as she described how Arthur hated Heinz Ketchup bottles. “Wouldn’t touch them. It took too long.” She had to put the ketchup on his potatoes. “He was spoiled, and I spoiled him.” she admitted.
You welcomed me when I was a young lawyer starting out. Though separated by a generation we’ve always had a common bond - the “jr.” behind the name, the whole son-of-a-lawyer thing. I appreciate talking to you about it over the years. When we had a case against each other early in my career you didn’t try to take advantage of my youthful ignorance, and even offered solid advice. I’m sure you don’t remember. I do. I try not to forget how special it feels for a new attorney to have a seasoned lawyer speak to them as a peer. I try to go out of my way with new lawyers, because of the way you treated me. You’ve always had the ability to make me feel as though we were old friends. I think others feel that way about you. That is a rare quality - to make people feel that way. I mentioned in my recent Dicta column that you were “legendary and kind,” and both of those fit. I look forward to seeing you back at the football games this year. My son has always enjoyed seeing you and Snake down in front of us. He has grown up watching you two enjoy the games. Once, when I didn’t go to a game and my father gave him the tickets (he’s 19 years old now), he reported back that “the two old guys with the hats were there.” It made me smile. We didn’t beat Bama like you predicted at Pete’s but I think this is our year. If you continue to think we can beat the Tide, then cancer doesn’t stand a chance. Everyone at my firm and in my family sends their positive thoughts and prayers. Get better my friend. Sincerely, Robbie Arthur didn’t get better. I will always remember him like the last time I saw him. He was leaving the counter, walking to the door in his way - leaning back on his heels, the posture of someone balancing books on his head. He put on his coat and hat, paused and turned to me, hand still on the brim his hat. “Raaaabie, tell Bob hello,” he said. I waived. He tipped his hat and gave me that knowing smile. “See you around,” he said.
See you around, Arthur. It was an honor.
After hearing of his death, I picked up the sealed envelope from the outgoing mail. It was waiting on a stamp. I tore it open. Dear Arthur, I was sorry to receive the news of your diagnosis. I wanted to drop you a note to wish you a speedy recovery. I know that yours is not a diagnosis that pays much attention to such wishes, but if grace and class can overcome then I’ll see you at Pete’s counter real soon. You and I know that Pete’s food is probably as close to a cure as anything those doctors are giving you. Everyone at Pete’s asks about you. They’re worried. We all are.
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PRACTICE TIPS By: Allison J. Starnes-Anglea Director of Career Services, LMU Duncan School of Law
NO PHONE ZONE OBSERVATION 101 Several years ago I handled an out-of-town matter for a client I inherited through the “cover this one quick thing” process most small firms subscribe to for case dumping. I was in a neighboring county, and I had been warned to review the local rules before I appeared. That day, I learned the only thing more important than the written local rules of court are the unwritten local rules of court.
In my finest seersucker suit I walked in, looked around, and immediately decided I had no interest in having my matter taken up first. I was already an outsider due to my age and gender, so adding “blundering” to my description should be avoided. I needed to watch some of the local attorneys make their motions in order to get acquainted. So, I waited. I watched a few local attorneys have short matters heard, taking note of their process. The attorneys all began with “May it please the Court.” Fancy. Also, they stood at the podium like statues and only passed documents through the bailiff, even when it was from attorney to attorney. How orderly. As I waited, I realized something quite interesting: no one, not even the parties waiting for their cases to be called, was on their smartphone. No. One.
Though not all local rules are as action-packed as my lesson in observation, here are a few interesting local rules: Intended proof such as names of witnesses and proposed exhibits must be exchanged by counsel in person or over the phone at least seventy-two (72) hours prior to the trial of a civil case in the 8th District.2 A similar rule governs civil cases in the 7th District, with an exchange deadline ten (10) days before trial. No surprise witnesses in the 7th, Mr. Matlock.3
I thought, “Clearly cell phones are despised in this room, no matter what their use may be.” I decided this must be one of those unwritten local rules. My morning became simply riveting when a fellow Knoxville attorney entered and took a seat next to me. I whispered “good morning,” and she stared at me like I had four heads. “Oh, so we’re going to play that game?” I thought. Oblivious, my new neighbor immediately got out her phone and began aimlessly scrolling through news apps. Should I have said something to her about no one else being on their phones? Maybe. Should she have acknowledged my greeting? Definitely. So, I remained silent and happily petty. The next thing you know, a hearing is halted: Actually stopped in the middle of attorney argument by the Chancellor. Silence fell. The bailiff approached the row of waiting attorneys with his hand reaching forward. He took my neighbor’s phone and said simply, “No phones.” She gasped. He turned on his heel and walked back to the bench. The case resumed. I smirked as she sat openmouthed. It. Was. Awesome. Yes, they gave her phone back to her at the end of the docket, and of course she apologized. I can only imagine how embarrassed she was, but I all I could think was “How did she not notice the complete lack of phone usage in this entire courtroom?!” The moral of that story is: Be observant when outside your comfort zone. And always respond to my greetings because I’m not afraid to let you embarrass yourself. As amusing as unwritten local rules can be, it’s always important to know your written local rules. Not only will it save you embarrassment and save your client time and expense, it is your duty under the Rules of Professional Conduct to provide competent legal services and assess reasonable fees, with the fees charged locally to be a consideration in your evaluation of reasonableness.1
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The judge’s full name must be typed BOLDLY below the signature line on proposed orders for circuit cases in the 7th District. You may want to boost your line item for ink expenses if you practice in this district regularly.4 Rules on attire and forbidden conduct appear in the 2nd District’s civil court rules, so remember to leave your swim suit and chewing tobacco in the car.5 There is a more specific attire requirement of “jacket and tie” for male attorneys in the 1st District.6 There, female attorneys must “wear appropriate clothing.” Leotards are considered inappropriate attire in this district, disappointing those who appear in court immediately following jazzercise class.7 Rule 9 in the 6th District’s juvenile court governs “Initiation of Cases and Intake Proceedings,” referring attorneys onward to the “Intake Process Manual.” Hope you like reading.8 Remember, not every rule is written. Read your local rules, but don’t forget those important unwritten rules when you appear. Tenn. Sup. Ct. R. 8, RPC 1.1; 1.5. 8th Jud. Dist. Cir. R. 17.01. 3 7th Jud. Dist. R. 119.01 (civil). 4 7th Jud. Dist. R. 126.01. 5 2nd Jud. Dist. Cir. & Chancery R. 14.08; 14.09. 6 1st Jud. Dist. R. 1.03(H). 7 Id. 8 6th Jud. Dist. Juv. R. 9. 1 2
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AROUND THE COMMUNITY By: Gary Wade Dean and Vice President, LMU Duncan School of Law
GLORY DAYS Except for his military requirements in 1935 and from 1941 through 1945, General Robert R. Neyland served as head football coach at Tennessee from 1926 through 1952. Although credited with four national championships, his 1938, 1939, and 1951 teams stand out. The 1938 squad, led by tailback George Cafego, end Bowden Wyatt, and guard Bob Suffridge, finished the season undefeated. In the following year, the Vols became the last team in NCAA history to go undefeated, untied, and unscored on in the regular season. Few alive today can remember those days. In 1951, Neyland’s team, featuring Heisman runner-up Hank Lauricella, captured the national championship. Only a few more fans recall that glorious season. If Attorney Bill Petty is not of one of them, his personal and professional relationships, especially with Gus Manning and the late Haywood Harris, nevertheless qualify him as an expert on Vol football over almost 70 years. Bill’s pedigree as a Vol is unassailable. “The General,” who continued as athletic director after retiring as coach, hired Manning as Sports Information Director in 1951. In 1954, Bill Smythe, an admissions director, discovered a young Bill Petty when he was still at Gallatin High School. During Bill’s freshman year at UT in 1955, Smythe landed him a job at the student center to help pay his way through school. In the following school year, Bill was assigned a room in the East Stadium Dormitory, where the athletes were housed. As the gatekeeper at Vol football practices, he became an eyewitness to an historic 1956 season—more about that in paragraphs that follow. By 1957, Bill had become the Head Counselor at his dorm and, in his words, Manning’s “general flunky” in the press box. In return, Bill received tuition, books, a room, and meals. By 1958, he found time to be elected President of the Student Body, a huge honor in those days. Two years later, Bill enrolled in UT’s College of Law. During this period, Neyland promoted Manning to Director of Ticket Sales and Harris, his assistant, was named Sports Information Director. By then, Gus, Haywood, and Bill had begun an alliance which would last half a century. After passing the bar in 1963, Bill worked at Fireman’s Fund for two years before returning to UT as the Athletic Department’s Director of Promotions. After five years in that position, he joined Bob Child and John O’Conner in the practice, and, except for a year plus as the City Law Director, Bill has been the one constant in the firm as it has evolved over the last five decades. His “second job” during all of this time was as official statistician during the Vol home games. To digress, Neyland had hired Wyatt as head coach the same year Bill started at UT. In his second season, Wyatt, who had previously won conference titles at Wyoming and Arkansas, led the 1956 Vols to a huge victory over Coach Bobby Dodd’s (a 1931 Vol All-American) previously unbeaten Georgia Tech. The team finished the regular season with a perfect 10-0 record—only to be nosed out in the final poll by Oklahoma. Johnny “Drum” Majors and Kyle “Buddy” Cruze were the star players. Wyatt was named National Coach of the Year. In that magical season, Majors to Cruze back-to-back completions set up the only score in the game against Tech; and, Bill, as the team’s dorm counselor, began a
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relationship with each of these men similar to his strong connection with Manning and Harris. Majors started his career as an assistant at UT and eventually had a successful head coaching stint at Iowa State before his National Championship team at Pittsburgh. In 1977, “Johnny came marching home” to Knoxville. Over the next 16-years, he led the Vols to three SEC Championships. Old timers remember Buddy, who died just last year, for his exploits in football, basketball, and track, first at Knoxville High School and then at East. In 1952, he became the one and only high schooler to be named as MVP for All-State teams in both football and basketball. In a state basketball tournament game, he set records in rebounds with 25 and in points with 47 which stood until 1993. Petty, Manning, and Harris often talked about a story Cruze told on himself. The day after setting his state records, he forgot his player’s pass to the next game. When he informed East High coach Buford Bible of his plight, Bible walked right by, leaving Buddy at the door. Fortunately, Cruze found a friendly face who loaned him a dollar for a ticket. Petty remembers Cruze teasing his old friend Majors for finishing second to Paul Hornung in the 1956 Heisman Trophy vote. Cruze contended that Johnny would have won had he just thrown him more passes. In fact, Majors threw only 59 passes his senior season, converting 32 and setting a team record for completion percentage. In that era, most coaches subscribed to the Texas Coach Darrel Royal’s philosophy: “Three things can happen on a pass and two are bad.” Today, Majors continues to be effusive in his praise of his favorite receiver, “No one could run routes or make catches like Buddy. In the 1955 win over a tough Vanderbilt team, I threw the ball three feet behind him twenty yards down field. He reached back with his right hand and pirouetted toward the end zone without breaking stride. It was the best catch I ever saw.” Had the Commodores won, they would have gone to the Sugar Bowl. Johnny, now 83 years young, says with a mischievous smile, “I hated that for Vandy.” Petty, Manning and Harris were all watching television when Majors and Cruze were featured as All-Americans on the old Perry Como TV show. Johnny was the last to be introduced on a team that included NFL Hall of Famers Jim Brown and Hornung. During rehearsal, Como commented that he and Majors were the same size. Buddy suggested that Johnny ad-lib a response in the live performance: “Yes, but I can’t sing.” Como folded up with laughter when Majors repeated the line, as did the live audience. On Monday nights, Bill Petty, now in his 49th year of practicing law, still plays a card game called Tong with Gus, now 95 years old. They still miss Haywood. Bill retired as the Vol’s head statistician in 2011 after 41 years on the job. He and Majors often eat at the Lunch House on Magnolia Avenue. The coach always draws a crowd. Their stories of the glory years are often repeated but never grow old.
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May 2019
MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Jennifer
Pearson Taylor
By: Ian
London Amburn
Hennessey
London Amburn
HEADING TO OVERTIME!
PROPOSED 2019 UPDATE TO THE FEDERAL OVERTIME RULES
March Madness for college basketball may be over, but it hasn’t stopped the suspense with overtime from the US Department of Labor (DOL). Originally, new updates to federal overtime rules were expected in 2018, but were subsequently delayed. Under current Fair Labor Standards Act (FLSA) rules, certain employees1 with a salary of more than $455 per week ($23,660 annually) are not eligible to be paid overtime for working more than 40 hours per week. Could that be about to change?
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March Madness On March 7, 2019, the DOL finally issued a Notice of Proposed Rulemaking under the Fair Labor Standards Act (FLSA). In the notice, the DOL specifically outlines its plans to raise the annual minimum salary requirements for the FLSA’s “white collar” (executive, administrative, and professional) overtime exemptions. The updated rules could thus result in making over a million more American workers eligible for overtime and leading to a significant increase in costs for employers. Or, in the (in)famous language style of basketball personality Dick Vitale: “It’s an overtime thriller, baby! A real knee-knocker for employers!”2
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2016: DOL shoots, but a federal court rejects3 A 2016 DOL rule change would have roughly doubled that salary level, requiring employers to pay overtime to certain salaried employees unless they make more than $913 per week ($47,476 annually). However, that increase never went into effect. During a class action lawsuit against the DOL, a US District Judge in Texas temporarily enjoined the new rule, citing a lack of authority by the DOL to make the change. In August 2017, the same judge permanently blocked the DOL’s rule, ending that update to the FLSA overtime rules. Since then, employers have been left waiting, unsure how to plan for possible changes to the overtime rules. The 2019 proposed rule outlines an increase that some say would hit a middle ground between current rules and the larger 2016 expansion.
Xs and Os In developing the proposal, the DOL reports that it used “a longstanding and commonsense methodology” after receiving public input from six in-person listening sessions held around the country and more than 200,000 comments that were received as part of a 2017 Request for Information following the 2016 injunction blocking the prior rule.
The Proposed Rule includes: •
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An increase to the total annual compensation requirement for “highly compensated employees” from the currently-enforced level of $100,000 to $147,414 per year. A commitment that the DOL will periodically review and update the salary threshold. An update would continue to require noticeand-comment rulemaking. Permission for employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid annually or more frequently to satisfy up to 10 percent of the standard salary level. No changes in overtime protections for: • Police Officers • Fire Fighters • Paramedics • Nurses • Laborers including: non-management production-line employees • Non-management employees in maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, and other construction workers No changes to the job duties test. No automatic adjustments to the salary threshold.
Final Thoughts The new proposal increases the salary threshold by 50% and is expected to pass into law without the same opposition seen in 2016. Keep in mind, however, currently this is still only a DOL proposal. The final rule with be forthcoming. During the 60-day comment period (which closes on May 21, 2019) the public may submit comments on the rule. Following the comment period, a final rule will be published and, based on statements set forth in the proposed rule, the DOL anticipates that the final rule will become effective on January 1, 2020. So perhaps it’s not a “knee-knocker” for employers quite yet. But you will want to stay tuned! Come next January, the updates to the federal overtime rules might just be ready for “prime time.”
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For example, managers and those with advanced knowledge “in a field of science or learning” such as lawyer. Under the “Vspeak Glossary of Terms and Teams,” a “knee-knocker” is defined as a close game (http://www.espn.com/dickvitale/vspeak/) (last visited April 10, 2019). This, in Vspeak, may possibly be described as a “Wilson Sandwich,” which is defined as “what you get when your shot is rejected in your face.” See “Vspeak Glossary of Terms and Teams,” (http://www.espn.com/dickvitale/vspeak/) (last visited April 10, 2019).
An increase to the minimum salary required for an employee to qualify for exemption from $455 to $679 per week (equivalent to $35,308 per year).
About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Cathy Shuck at 541-8835. May 2019
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L E G A L LY W E I R D By: Lisa J. Hall Hodges, Doughty & Carson
BIRTHDAY PARTIES: THE NEXT FRONTIER IN LAWYER ADVERTISING I remember planning birthday parties for my kids when they were younger. I would say it was so much fun, but my daughter’s birthday is about four weeks after Christmas, and by the time I got around to exhaling after the chaos of the holidays and thinking about her birthday, there was not much time to pull off anything that was Pinterest-worthy. Otherwise, I would obviously have thrown birthday parties that were the envy of all the land. We did have a roller skating party for her when she turned eight, and we used the number 8 to replace letters in as many words as we could in the invitation (gr8, sk8, d8, etc.), and that was rather clever in my opinion, at the time. My son’s birthday is in September, and he received the benefit of forethought and more enthusiastic planning. This included personalized and themed t-shirts reflecting how old he was, creative cakes, fun venues, and goody bags. Oddly enough, neither of my children ever requested a birthday party with a specific lawyer theme, unlike a couple of small children in recent years.
told his mother he wanted a “George Sink party with all 9s!” Mr. Sink’s local ads reflected his phone number – 999-9999, which clearly made an impact. Little Landen made it a practice of walking around and quoting the commercial and “telling people he would call George Sink on them.” Landen did not get a George Sink cake, but there were 9s on the cake, 9s on the cupcakes and balloons shaped like the number 9. (If that last sentence reminds you a little of the lyrics of the Eagles song “Life in the Fast Lane,” (“lines on the mirror, lines on her face”) you are not alone). Also, obviously, life-sized cardboard cutouts of George Sink were at the party. Many of the boys in attendance were wearing their best power ties. The best gift of all was the personal appearance of George Sink, who was a good sport (and obviously silently thanked the Lord above for all of the free publicity).
It all started in 2015 in Prairieville, Louisiana, where then-twoyear-old Grayson Dobra began his obsession with local attorney Morris Bart. Whenever his commercials would air, little Grayson was “fixated.” He would sit and stare at the television, and among his first words were “One call” or “Bart, Bart, Bart, Morris Bart, Morris Bart.”
It was obvious that when it came time to plan his birthday party, it would be a Morris Bart birthday party, complete with a Morris Bart cake and a life-size cardboard cutout of Morris as a present. Mr. Bart was not available, but he sent an autographed picture, a T-shirt, and various other swag. In the days and weeks after the party, he became very attached to his t-shirt, refusing to let anybody take it off of him, and also gave the photo of Morris Bart a kiss goodnight before going to bed. Three years later and hundreds of miles away, a four-year-old child named Landen in Greenville, South Carolina had his own toddler lawyer idol named George Sink. Landen
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When we learn about marketing, we are often reminded to consider our intended targets. I have no idea if Morris Bart or George Sink have cornered their respective markets, but they have a fierce and devoted following among the toddler/preschool set. They also have lifesize cardboard figures of their likeness, apparently ready for the taking upon request. I am going to spend the rest of my life trying to figure out the practical use for a life-size cardboard figure of an attorney, right after kissing my nightstand photograph of Morris Bart every night before bed. Also, if you would like to order a life-size cardboard figure of Lisa Hall, simply call 999-9999. And yes, there is a discount for bulk orders.
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May 2019
AROUND THE BAR By: Douglas Blaze Dean Emeritus and Professor of Law UT College of Law
LEADING THE WAY – UT LAW INSTITUTE FOR PROFESSIONAL LEADERSHIP Throughout our country’s history, no occupation is more responsible for producing leaders than the law. Our profession has supplied the majority of U.S. presidents and, over the past several decades, almost half the members of congress. Lawyers lead in firms, in corporations, and in non-profit organizations. Outside of the workplace, lawyers lead teams, committees, task forces, and volunteer boards. Today leaders face challenges of incredible breadth and complexity, and the problems we face as a society can only be solved by trained and committed leaders. And while lawyers will be called up to take up those challenges, few of us have had any formal leadership training. Neither legal education nor the profession have focused leadership development – until very recently. Now a small but growing number of law schools are taking up the challenge of leadership education.
UT Law has been at the forefront of those efforts. Getting Started In 2012, the College of Law recognized the need to include leadership and professional development preparation in the curriculum. Utilizing a memorial gift from alumnus and bar leader, Larry Wilks (’80), Tennessee attorney George T. “Buck” Lewis (UT ’80) and I worked together to develop Lawyers as Leaders, a course on leadership and professional development. Buck, appointed as the Larry Wilks Distinguished Practitioner in Residence, did the lion’s share of the work in developing the course. Offered for the past seven years, course topics include professional leadership, law firm management, bar association service, public service, ethics, redefining success, professional planning and legacy. Recognizing the success of the course, the law school began to evaluate other curricular and extracurricular opportunities to address leadership preparation. As a result of discussions, the college embraced the potential and need for a coordinated leadership program involving teaching, service and research. In discussing such a program with alumni, the potential financial support for the effort became readily apparent. The College of Law faculty voted to approve establishment of an Institute for Professional Leadership and received formal university approval in July, 2014. Curricular Expansion Since creation of our core course, Lawyers as Leaders, the leadership program has grown to include four additional courses. - Leadership Practicum: Class sessions explore leadership skills and project design, implementation, and evaluation. Students them, in groups, undertake legally-related service projects. - Leading as Lawyers: Trans-Pacific Perspectives: Through a May 2019
collaboration between UT Law and the University of Queensland law school in Brisbane, Australia (thanks to a connection through Wayne Ritchie) a small cohort of UT law students and UQ law students explore leadership principles and skills, self-leadership, and professional development from cross-cultural perspectives. Taught over a two week period, the students live together, learn together, and socialize together. The course location alternates each year between Brisbane and Knoxville. - Thriving as a Lawyer: Developed by Candice Reed (UT Law ’00), students are introduced to principles of positive psychology. The course helps law students recognize likely pitfalls in the practice of law and helps them develop strategies to crease the likelihood of thriving in the legal profession later.
- Lawyering and Professionalism (First Year Only): This required course exposes students in their first semester to a wide range of available career paths. Students also begin to experience what it means to be a lawyer through exercises, discussion, and from guest speakers. Students then examine principles of effective leadership, leadership development, and professional planning. Outreach The Institute reach extends beyond UT law students. Buck Lewis will be teaching a leadership course at Tulane Law School next spring. Institute faculty also regularly leadership development CLE programs. In addition, the Institute has hosted two leadership education symposia for lawyers and legal academics. The most recent one, held in early April, included representatives of 24 law schools from across the country. We have also worked with other law schools to establish a new Leadership of the Association of American Law Schools. I will serve as chair of the section in 2020. We also want to stay connected to and enhance the leadership development of our alumni and other members of the profession. To that end, we recently launched the Leading as Lawyers blog (leadingaslawyers. blog) and a series of videos of significant leaders discussing leadership lessons (law.utk.edu/programs/leadership/). Looking Ahead We have lots of other plans in the works. But we need the support and engagement of our alums and other lawyers. We truly thrive, as a program and as a law school, when we are significantly engaged with the practicing bar. So please share your thoughts and ideas (leadershipinstitute@utk.edu). Help us achieve our goal of producing future leaders of impact and influence who are committed to making our profession and our communities better.
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HELLO MY NAME IS... By: Jennifer A. Dobbins Associate Attorney Lipsey, Morrison, Waller & Lipsey, P.C.
LISA BAILEY Lisa Bailey’s path to becoming a lawyer is an inspiring one. Her previous work experience was in technology sales, and although she had considered law school, she never had the right opportunity. But Lisa’s life changed when her husband passed away suddenly, and she was thrust in the middle of messy estate litigation. Spurred by tragedy, she decided to begin a second career in law. “I had a challenging experience settling his estate, and that experience led me to be interested in probate, estate planning, and estate administration,” Lisa explains. Lisa was determined to pursue her new career and enrolled in the part-time program at the Duncan School of Law. By day, she continued to homeschool her four children through their respective high school graduations, and by night, she attended law school classes.
There is more to Lisa than meets the eye. For instance, Lisa loves fast cars. She owns a beloved red 1966 Mustang, and her dream car would be the same model—but as a 5-speed convertible (still red, of course). Lisa also describes herself as a “die-hard” Tennessee Volunteers fan, and she has attended Tennessee football games since age sixteen, including the Orange Bowl and games in Los Angeles and New York City. Lisa lives by her mother’s advice: “Whatever you do with your life – pray, work hard, always be prepared and do your best.” In talking to Lisa, it is clear that she possesses the self-determination necessary to persevere and thrive despite any obstacle. The Knoxville Bar Association welcomes this passionate and focused lawyer to her second career.
During law school, she reached out to a professional acquaintance of her husband, Knoxville estate lawyer Anne McKinney, and Lisa expressed her interest and desire to practice in probate and estate law. Anne hired Lisa as a law clerk, and Lisa was able to experience first-hand the practice of estate and probate law as she finished law school. Lisa says that working as a clerk for McKinney & Tillman, PC during law school only solidified her resolve to become a probate and estate lawyer. “I was very fortunate to have the opportunity to clerk at McKinney & Tillman. Ms. McKinney and Ms. Tillman are excellent mentors – I couldn’t ask for better guidance and training,” Lisa says. In 2016, Lisa graduated from law school and passed the bar exam, then began her work as an Associate Attorney at McKinney & Tillman. She describes her work with evident passion in her voice, and she clearly enjoys working with one-on-one with her clients. “I have a special connection with my clients because often I have lived through the same things they have and have been in the very same place. I know what it’s like when there are issues in settling an estate while you’re suffering from a loss. Regardless of whether it’s drafting an estate plan, a probate issue, a conservatorship, or litigation, my goal is to give my clients peace of mind.” Apart from work, Lisa displays the same warmth in describing her children’s accomplishments: Elisabeth, her oldest, is a University of Tennessee alumna and a medical resident studying neurology and currently living in Augusta, Georgia; Victoria is an Account Manager at Swim and Tri in Knoxville and a swim coach; Christina is a senior majoring in pre-medicine at the University of the Cumberlands in Williamsburg, Kentucky, and she plans to become an orthopedic surgeon; and Josiah is a freshman at John Gupton College in Nashville, where he is studying to become a mortician, and he returns home to Knoxville three days each week to work at Mynatt Funeral Home. Lisa frequently travels with her children as well. Her most recent vacation was with her daughter Christina to Columbus, Georgia, to attend the NAIA National Swimming and Diving Championship where Christina won the NAIA National Champion title in 200-yard backstroke.
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May 2019
L E G A L U P DAT E By: Sarah R. Johnson Holifield Janich Rachal Ferrera, PLLC
TENNESSEE SUPREME COURT – EVIDENCE CANNOT BE USED TO CONTRADICT WRITTEN CONTRACT In a case closely watched by Tennessee’s business community, the state’s highest court held that trial courts cannot use evidence outside of the written agreement to interpret a contract if that evidence is contrary to the contract’s written terms. The case stems from an agreement BlueCross first made in 1999 with insurance agency Individual HealthCare Specialists, Inc., to allow Individual HealthCare to solicit applications for BlueCross insurance policies. New contracts were entered into by the parties each year during a 10 year business relationship that spelled out the commission rates for sales of new insurance policies and renewals of existing insurance policies.
change the commission rate. The trial court ordered BlueCross to pay Individual HealthCare more than $2.1 million in damages and legal fees. The Tennessee Supreme Court acknowledged that Tennessee judges have long used extrinsic evidence of the circumstances when parties entered into a contract to interpret what they intended the written words to mean. However, in the Tennessee Supreme Court’s ruling on January 18, 2019, the court determined that this long time practice should end, and the use of evidence outside the written contract was to cease when interpreting what the parties intended the written words to mean. Individual Healthcare Specialists, Inc. v. BlueCross BlueShield of Tennessee, Inc., No. M201502524SCR11CV, 2019 WL 256716, at *31 (Tenn. Jan. 18, 2019). The Tennessee Supreme Court found that the language in the contract between BlueCross and Individual HealthCare clearly gave BlueCross the right to unilaterally change all of the commission rates, including the renewal rates. The Court concluded that the trial court erred by using evidence of the parties’ pre-contract negotiations to contradict the written words in their agreement and overturned the lower court judgment. Essentially, this ruling revises the application of Tennessee law to not allow the use of extrinsic evidence of pre-contract negotiations to justify an interpretation of the contract that contradicts the contract’s written words. Judges in Tennessee must exclusively look at the “four corners” of the signed document to determine the interpret the contract. Therefore, it is extremely important that written contracts are carefully reviewed to ensure the terms accurately reflect all aspects of the agreement among the parties.
For years, BlueCross paid Individual HealthCare commissions on renewal policies at the renewal rate in effect when the policy was first issued. In 2011, however, BlueCross cut the commissions paid on renewal policies based on the rate in effect when the policy was renewed, which was substantially less. Individual HealthCare objected to the change, claiming that BlueCross could not change those rates without Individual HealthCare’s permission. Ultimately, the parties’ business relationship ended and Individual HealthCare sued BlueCross in Davidson County Chancery Court for breach of contract. The parties disputed, among other things, whether BlueCross had the authority to unilaterally change commission rates on renewal policies. The trial court considered the oral testimony of three former BlueCross executives who helped negotiate the agency contract. The former BlueCross managers said that during the pre-contract negotiations neither party intended for BlueCross to have the authority to unilaterally May 2019
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A THANK YOU NOTE TO
CHARLES AND JARED KUSHNER
The FIRST STEP Act of 2018 Illegal campaign contributions, tax evasion, witness tampering, a prostitute hired to seduce a brother-in-law, and fourteen months spent at the Federal Prison Camp, Montgomery by Inmate #26526-050. These are the facts that will not appear when one researches the legislative history of the FIRST STEP Act, a bipartisan effort at criminal justice reform by the 115th Congress.1 However, without the behind the scenes work of the First Son-in-Law, Jared Kushner, son of inmate #26526-050, who knows if this attempt at criminal justice reform would have been successful. Charles Kushner was a New Jersey developer who was active in the Democratic Party. His questionable actions caught the eye of the District of New Jersey’s United States Attorney, Chris Christie, who sought an indictment of Charles on eighteen counts of tax evasion, witness tampering, and making illegal campaign donations. According to The New York Times, Mr. Kushner, also, retaliated against the “cooperating witness” in the case, who was his brother-in-law. He hired a prostitute to seduce his brother-in-law, taped the encounter, and then sent it to his sister. The judge found these actions to be “horrific” and sentenced Mr. Kushner to twenty-four months at the Bureau of Prisons.2 Years later, the same newspaper gave Jared Kushner the credit for seeing the bill passed and signed by the President on December 21, 2018.3 Coincidence?4 According to the Federal Bureau of Prisons (BOP) website, on March 21, 2019, there were 180,193 federal prisoners incarcerated.5 This article is an overview of what the 118-page FIRST STEP Act might change for those 180,000+ people and for those not yet in prison. The statute is divided into six titles, and it covers an eclectic combination of topics from Recidivism Reduction to how the Federal BOP is to secure firearms. What follows is a very brief summary of those two titles in addition to the titles dealing with sentencing reform, a reauthorization of the Second Chance Act of 2007, restraints of pregnant inmates, and compassionate release.
1. RECIDIVISM REDUCTION
This section of the statute establishes a system of incentives and rewards, as well as penalties, that will lead to the loss of the incentives. The earning of incentives may qualify an inmate for time credits toward
the reduction of the sentence or term of supervised release (the time that an offender is supervised after serving a sentence of imprisonment) reduction. The BOP will be relying on a risk assessment tool which must be completed within 210 days of the signing of the legislation, and all 180,000 inmates must be assessed within six months of completion of the assessment tool. The program is not available to inmates convicted of any of the offenses on a list of more than sixty offenses, nor is it available to those who are deportable. The list includes common offenses such as bank robbery, threats against the President, and certain controlled substance offenses. The statute specifically says that whether or not a program is faith-based will not be a reason for discrimination against it in any manner.6 2. BOP SECURE FIREARMS STORAGE The Director of the Bureau of Prisons is responsible for ensuring that each penal or correctional institution has a secure storage area (outside of the secure perimeter) for firearms or that employees are allowed to store firearms in a vehicle lockbox.7 3. RESTRAINTS ON PREGNANT PRISONERS PROHIBITED Between the time that an inmate’s pregnancy is confirmed and the conclusion of post-partum recovery, the inmate shall not be placed in restraints. There are exceptions if an inmate presents an immediate and credible risk of flight or poses an immediate and serious threat of harm to herself or others. The statute defines restraints and requires reports when restraints are used.8 4. SENTENCE REFORM It is this title that contains the most sweeping changes and has received the most attention from prosecutors, defense attorneys, and courts. The title changes the scheme of mandatory minimums in drug cases for defendants who have prior drug or violent felony convictions; it broadens the existing safety valve which provides relief from mandatory minimums for certain defendants with little or no criminal history; it clarifies how multiple sentences for violations of 18 U.S.C. § 924(c) are to be imposed; and it makes the Fair Sentencing Act of 2010 retroactive. a. Mandatory Minimums: A mandatory minimum is a minimum sentence that must be imposed by a judge unless the prosecutor makes a motion authorizing a court to depart below the statutorily set mandatory minimum. Before December 21, 2018, the scheme of mandatory minimums in 21 U.S.C. § 841(b)(1) (A), the garden-variety possession with the intent to distribute and distribution of controlled substances statute, provided for a ten-year mandatory minimum when an offense involved a threshold amount of drugs. The mandatory minimum for that same quantity of drugs rose to twenty years if the person had one prior final conviction for a serious drug felony. (The prior convictions can be federal or state priors.) If the person had two prior final convictions for serious drug felonies, the mandatory minimum was life. The new statute lowers the mandatory minimum for having one prior to fifteen years, and those with two priors will now face a mandatory minimum of twenty-five years.9 Just having a prior on one’s record does not automatically lead to these enhanced sentences. The United States must file
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May 2019
COVER STORY By: Beth Ford Community Defender
an information giving notice of the prior serious drug felony or serious violent convictions that will be relied upon for the enhanced sentences. The new statute narrows the definition of a prior drug conviction, and the statute clarifies that the offense must have a maximum term of ten years or more prescribed by law. Additionally, the defendant must have served a term of imprisonment of more than twelve months, and release from that term has to be within fifteen years of commencement of the instant offense.10 The statute gives to defendants, but it also takes away. Previously, only drug priors could lead to those enhanced mandatory minimums. Now, “serious violent felonies” may be a basis for a notice of enhancement. The offender must have served a term of more than twelve months on the prior serious violent felony, but, unlike the drug priors, there is no staleness limit.11
d. Application of the Fair Sentencing Act: In 2010, an attempt was made to remove the sentence disparity that existed between powder cocaine and cocaine base (crack), because the difference overwhelmingly punished people of color. The disparity moved from a powder-to-crack ratio for sentencing of 100:1 down to 18:1. However, the change was not retroactive.16 The FIRST STEP Act makes the Fair Sentencing Act retroactive.17 According to the Brennan Center for Justice, 3,000 inmates will be affected. Several hundred of those people could be from the Eastern District of Tennessee.18 5. SECOND CHANCE ACT OF 200719 REAUTHORIZATION
The constitutionality of the definition of serious violent felony has been frequently raised since 2015 when the United States Supreme Court decided Johnson v. United States,12 and it may be expected that the litigation will continue as a result of this new statute. The issue also may be raised as to whether a sentence based on the newly included crimes of violence as a predicate for a mandatory minimum would violate the ex post facto clause for an offense that was committed before December 21, 2018. b. Safety Valve: The safety valve provision provides relief for people who would be subject to a mandatory minimum under 21 U.S.C. §§ 841, 844, 846, 960 and 963 but for having a limited criminal history [one criminal history point under the United States Sentencing Guidelines (USSG)], did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense, the offense did not result in death or serious bodily injury, was not a supervisor, manager, leader, or organizer (as defined by the USSG), and was not engaged in a Continuing Criminal Enterprise, and not later than sentencing, truthfully provided all information regarding offense.13 Being eligible for the safety valve provision authorizes a judge to sentence below the mandatory minimum without a motion being filed by the United States.
The statute reauthorizes the funding of a grant that has a focus on reentry programs. 6. MISCELLANEOUS CRIMINAL JUSTICE If none of those topics were interesting, welcome to the Miscellaneous Criminal Justice section, which covers a multitude of topics. There are directives to encourage placing inmates within 500 miles of their homes by the BOP and a reaffirmation that lower risk inmate should be sent to home confinement for the maximum time allowed by law. The process for Compassionate Release for those who are terminally ill has been changed so that it is easier to ask for court review. Additionally, the BOP is to assist inmates in their application for identification before release. Finally, there is an expansion of inmate employment through Federal Prison Industries, evidence based treatment for opioid and heroin abuse, a pilot project for mentoring youth, a pilot project of services for vulnerable animals, data collection, making healthcare products (particularly for women) available, and a prohibition against room confinement (solitary) for juveniles.20 Charles and Jared, we thank you.
FIRST STEP Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (hereinafter “FIRST STEP Act”). 2 Ronald Smothers, Democratic Donor Receives Two-Year Prison Sentence, N.Y. Times (Mar. 5, 2005). 3 Annie Karni, The Senate Passed the Criminal Justice Bill. For Jared Kushner, It’s a Personal Issue and a Rare Victory, N.Y. Times (Dec.14, 2018). 4 David Smith, Can Kushner’s work on the criminal justice overhaul save his reputation? The Guardian (Dec. 21, 2018). 5 www.bop.gov. 6 FIRST STEP Act, Title I, § 101. 7 Id. at Title II, § 202. 8 Id. at Title III, § 301. 9 Id. at Title IV, § 401(a)(2). 10 Id. at Title IV, § 401(a)(1)(57)(A). 11 Id. at Title IV, § 401(a)(1)(58)(A). 12 135 S. Ct. 2551 (2015) (finding the residual clause of the Armed Career Criminal Act to be void for vagueness). 13 18 U.S.C. § 3582(f). 14 FIRST STEP Act, Title IV, § 402. 15 Id. at Title IV, § 403. 16 Fair Sentencing Act of 2010, Pub. L. No. 111-220 (Aug. 3, 2010). 17 FIRST STEP Act, Title IV, § 404. 18 Ames Grawert & Tim Lau, How the FIRST STEP Act Became Law – and What Happens Next, Brennan Center for Justice (Jan. 4, 2019), available at https://www. brennancenter.org/blog/how-first-step-act-became-law-and-what-happens-next. 19 FIRST STEP Act, Title V, § 501. 20 Id. at Title VI, § 601-613. 1
The new safety valve provides that the defendant qualifies if he or she does not have any more than four criminal history points as defined in the USSG, excluding any criminal history point resulting from a one-point offenses; a prior three-point offense, as determined under the sentencing guidelines; and a prior two-point violent offense, as determined under the sentencing guidelines.14 c. Violations of Multiple 18 U.S.C. §924(c) Offenses: A violation of 924(c) occurs when a firearm is used or carried in furtherance of a crime of violence or drug trafficking crime and the punishment is at least five years consecutive to the sentence for the crime of violence or drug offense. If there is a second violation of 924(c), then the five years goes up to twenty-five years. Before this statute, Courts had interpreted the statute to allow a twentyfive-year sentence to be imposed if there were 2-924(c)’s charged in the same indictment. The change clarifies that the first 924(c) May 2019
conviction must be final before a twenty-five-year consecutive sentence could be imposed.15
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URBAN LEGENDS By: Sarah M. Booher OEB LAW PLLC
THE KNOXVILLE SKYLINE: PROFITTING FROM THE BUTCHER BROTHERS’ TUMULTUOUS LEGACY “I’m pretty sure I’m the only person on the planet who made a profit off the Butchers.” That’s how I first learned of Knoxville’s complicated Butcher brothers – listening to the guest speaker in my Economic Development class at UT. I was a second-year graduate student and third year Tennessee transplant. As it turns out, our class guest speaker landed his first job out of college working for the complicated Union County natives at one of their numerous banks. C.H. Butcher, Jr. was in charge of figures. Jake Butcher was in charge of the sales and was “the face” of their business endeavors.1 When they later decided that they weren’t too fond of him as an employee, they cashed out his bank stocks and sent him on his way. He left unemployed, but ultimately ahead on his investment. It just so happened it was the late 1970s, the heyday of the Butcher empire. Business was great, so the Butchers carried on growing and building. When they broke ground on the 27-story headquarters, Plaza Tower, for their United American Bank (UAB) in the late 1970s, they owned or controlled at least 8 banks and controlled almost 40% of Knoxville’s banking reserves at the time. The Riverview Tower was built a few years later for the Butchers’ City and County Bank. By then the brothers were responsible for more than half of the business loans made in the city.2 Still Knoxville’s tallest and second-tallest buildings, respectively, (the Plaza is now commonly known as the First Tennessee Building and) the two buildings are home to many prominent local businesses. Fast forward a bit and the Butcher Brothers were still on top of the world, the 1982 World’s Fair that is. Jake was appointed (by then mayor, Kyle Testerman) as the primary promoter, so involved in its planning and execution that it was often called “Jake’s Fair.” Knoxville transformed. The city’s iconic Sunsphere was built as an ode to the Fair’s “Energy Turns the World” theme; the deteriorating L&N rail yard was demolished, and the depot was renovated for use as a restaurant; a 1,400 seat amphitheater was built for the occasion. It was a success. More than 22 countries participated, inventions such as touch screen displays, boxed shelf-stable milk, Chery Coke, and Petro’s Chili and Chips made their debut, and more than 11 million visitors came through Knoxville during the six-month period.3 Perhaps a sign of things to (immediately) come, the 1982 World’s Fair made a profit of $57, not quite the expected $5 million, and left Knoxville with a whopping $46 million debt. The final day of the fair was October 31, 1982. On November 1, when hotel rooms were finally available again in the city, approximately 180 federal bank regulators from the FDIC simultaneously raided all the Butcher brothers’ bank branches and offices to prevent the fraudulent transfer of funds between their banks. What they uncovered was “a maze of unsecured insider loans between family banks.” On the day of the raid, UAB alone had at least $90 million in outstanding loans, but only $40 million in reserves.4 When the UAB collapsed on Valentine’s Day, 1983, it was the fourth-largest bank failure in American history at the time. When five more of their banks closed on May 27, it was the largest number of bank failures in one day since the Depression. Agency officials initially estimated the cost to the FDIC to be more than $400 million but was later projected to be in excess of $1 billion. More than thirty of the bank’s
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former officers and directors were sued for more than $200 million.5 Five years later, hundreds of lawsuits remained tied up in federal courts.6 [Knoxville was not alone in its financial woes. In that fated 1983, 25% of the nation’s bank failures were in Tennessee, and it suffered at least nine failures the following year. The chairman of Tennessee Senate’s banking subcommittee blamed not only thinly capitalized banks, but also bad management and fallout from the lingering deep recession of the early 1980s.7] Jake pled guilty in federal court in 1985 to bank and income tax fraud. C.H. pleaded guilty in 1987 to federal charges of bankruptcy and tax fraud, money-laundering and conspiracy. He also pleaded guilty to state fraud charges related to the 1983 collapse of his uninsured thrift. The two were represented by Nashville attorney James Neal at varying points in the empire’s collapse. His explanation of their guilty pleas was short and simple. “The facts were so much worse than the indictment.”8
’m pretty sure I’m the only The Butcher story, however, cannot be person on the reduced to a one paged article of “how the mighty have fallen.” Surely one guest speaker in Knoxville is not the planet who made a only person to have profited from the Butcher legacy. profit off the Butchers.” Perhaps Memphis attorney Karl Schledwitz found the
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silver lining most poignantly in 2017 when he learned of Jake’s death in Canton, Georgia, where Butcher had moved after being paroled in 1992. “He was always a visionary and big thinker. As far as his legacy [goes], just look at the Knoxville skyline.”9
Margaret Lillard, The Butcher Fraud, https://www.upi.com/Archives/1988/03/06/ The-Butcher-fraud/2736573627600/ (March 6, 1988, Accessed April 9, 2019). Bruce Wheeler, Jacob Franklin “Jake” Butcher, Tennessee Encyclopedia of History and Culture (2009). 3 https://en.wikipedia.org/wiki/1982_World%27s_Fair. After all, I do write an article about legends. 4 Lillard, supra note i. 5 Michael Blumstein, Butcher Banks’ Costly Fall, The New York Times, https://www. nytimes.com/1984/09/06/business/butcher-banks-costly -fall.html (September 6, 1984, Accessed April 9, 2019). 6 Lillard, supra note i. 7 Blumstein, supra note iv. 8 John Branston, In Memorial: C.H. Butcher, Jr., Memphis Flyer (May 02, 2002. Accessed April 9, 2019). 9 Matt Lakin, Jake Butcher, disgraced East Tennessee banking kingpin, dies, USA TODAY (July 19, 2017, Accessed April 9, 2019). 1
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VITE ET CREDE By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.
JUST DOING OUR JOB
The first four months of 1942 were dark days. January, February, March, April – the cleanup of the wreckage of Pearl Harbor had barely scratched the surface. The USS Utah and USS Arizona lay at the bottom of Pearl Harbor. The USS Oklahoma was pulled from the harbor, but it was too damaged and could not be salvaged. It would be years before the USS Nevada, USS California, and USS West Virginia were back in service. By April 1942, only three battleships that survived the attack – the USS Tennessee, USS Pennsylvania, and USS Maryland – were back at sea.1 Five Thousand miles to the east, Filipino and American forces were embattled in the Philippines – defending the islands against the Japanese invasion which began the day after Pearl Harbor. After four months of brutal fighting, approximately 75,000 Filipino and American forces stationed on the Bataan peninsula surrendered on April 9, 1942. Thus, began the Bataan Death March. Although there are no exact numbers, most experts estimate that over 20,000 soldiers died from the brutality of the Bataan Death March and subsequent internment in the prison camp.2 America was on the defensive. It needed some good news. It needed to know that winning was possible. Eighty (80) men volunteered for the task. Today, the USS Hornet is a museum, carefully preserved at its final berth in Alameda, California. The day Pearl Harbor was attacked, the USS Hornet was a newly commissioned aircraft carrier berthed in Norfolk, Virginia. By March 1942, the USS Hornet had received orders to report to Pearl Harbor and headed out, through the Panama Canal, and then due west.3 However, the USS Hornet made one stop along the way – at the Alameda Naval Air Station – and picked up 134 Army pilots and air crew and 16 B-25 bombers. Their commander was Lieutenant Colonel James “Jimmy” Doolittle. On April 2, 1942, the USS Hornet and its escorts sailed out of the port of Alameda and resumed its journey west.4 But, the USS Hornet’s mission was not merely transporting another crew to help with the clean-up of Pearl Harbor. Its mission was a lot more serious. On April 18, 1942, a watchman sighted a small, fishing boat. It was a Japanese picket boat, the kind the Japanese would station hundreds of miles off the coast to warn them of danger, and Captain Mitscher knew they had been spotted. Their mission would be compromised if they didn’t immediately take action, and so they did exactly that. You see, Captain Mitscher had been given a top-secret mission – to launch a raid upon the Japanese mainland and send a message that the island nation was, itself, vulnerable to attack.5 It would have been a historic mission for many reasons. No one had ever launched a B-25 from an aircraft carrier. The crew of the USS Hornet managed to launch all sixteen in less than an hour. None of the B-25 pilots had ever taken off from an aircraft carrier. They all managed to take off without incident. To add insult to injury, the weather was terrible – rain, winds gusting at 20 knots, and waves crashing over the bow.6 Plus, because the mission had to be launched early, the USS Hornet was 800 miles off the coast of Japan--more than 250 miles farther than was planned. This means that the B-25 pilots and their crew faced a grim reality: they were going on a one-way mission with no possibility of having enough fuel to make it back to the USS Hornet. Their only option was to fly over Japan, drop their bombs, and hope they had enough fuel to coast to the mainland of China, where they would try to either land on a friendly Chinese airbase or hope to be found by friendly Chinese civilians.7 Nevertheless, 80 airmen volunteered for the mission. One of them was Robert Hite, a Nashville native and son of a Texas cotton farmer.8 At May 2019
the age of 22, he almost missed the mission. He was part of the original group of B-25s that had flown in to Alameda to join the USS Hornet, but his plane would not fit onto the ship. At the last minute, he replaced the co-pilot of a different crew.9 Another was 26-year old 2nd Lt. Dick Cole. He was co-pilot to Lt. Col. Jimmy Doolittle, a legendary pilot who commanded the B-25 squadron.10 As he described it, his job was to keep Lt. Col. Doolittle happy…and keep the engine from overheating.11 By all accounts, the mission was a success. The bombs were dropped on their targets: oil storage facilities and military bases. But then came the most dangerous part of the mission – finding a place to land before the fuel ran out.12 Doolittle ordered his crew to abandon the plane. Cole jumped into the dark, stormy weather. His parachute carried him over to the mainland of China where he landed in a pine tree. He was found the next day by friendly Chinese who helped him reunite with Lt. Col. Doolittle and eventually helped them escape where they returned to serving their country in the Pacific theater.13 Others were not so fortunate. Four of the bombers crashed. Three men were killed in the crashes. One bomber landed in Russia where the crew was captured and imprisoned until they escaped a year later.14 Eight were captured by the Japanese. Three were shot by firing squads. A fourth died in a prison camp.15 Robert Hite was one of those captured by the Japanese. He spent 40 months in a prison camp – 38 months in solitary confinement. When he was finally liberated, he weighed only 76 pounds. He later served during the Korean war, training pilots until he finally retired in 1955. This Nashville native and hero passed away in 2015.16 Last month, we lost the last surviving member of the Doolittle Raiders, Lt. Col. Dick Cole, at the age of 103. Although, the Doolittle Raiders gave the U.S. the hope it desperately needed, Cole didn’t see his role as anything special. “We were just doing our job, part of the big picture, and happy that what we did was helpful.”17 Only a hero could see a one-way mission as “just doing our job,” but then again seeing is believing.
Tara Tyrell, The Recovery – Rebuilding Pearl Harbor (Oct. 27, 2016), pearlharbor.org, last visited Apr. 9, 2019. 2 History, Bataan Death March (Nov. 9, 2009) https://www.history.com/topics/world- war-ii/bataan-death-march, last visited Apr. 9, 2019; see also Elizabeth M. Norman & Michael Norman, Bataan Death March, Encyclopedia Britannica, available at https://www.britannica.com/event/Bataan-Death-March. 3 USS Hornet CV-12, Timeline, https://www.uss-hornet.org/visit-hornet/history/cv- 12-timeline/, last visited Apr. 9, 2019. 4 Id. 5 Id. 6 Id. 7 Bob Fish, USS Hornet, Sea, Air & Space Museum, Additional Historic Information: The Doolittle Raid, https://www.uss-hornet.org/wp-content/uploads/2017/11/ Website-Extended-Info-Doolittle-Raid.pdf, last visited Apr. 9, 2019. 8 Sam Roberts, Robert Hite, 95, Survivor of the Doolittle Raid & Japanese Imprisonment, Dies, The New York Times (Mar. 30, 2015), available at https://www.nytimes.com/ 2015/03/31/us/robert-l-hite-survivor-of-doolittle-raid-and-japanese-imprisonment- dies-at-95.html. 9 Id. 10 Phil Gast, Richard Roth & Thom Patters, Dick Cole, Last of the Doolittle Raiders, Dies at 103, CNN, https://www.cnn.com/2019/04/09/us/last-doolittle-raider-dick-cole- dies/index.html, last visited April 9, 2019. 11 Id. 12 Id. 13 Id. 14 Bob Fish, supra n. 7. 15 Sam Roberts, supra n. 8. 16 Id. 17 Stephen Losey, A Legend Passes, Airforce Times (Apr. 9, 2019), https://www. airforcetimes.com/news/your-air-force/2019/04/09/a-legend-passes-dick-cole last-of-the-doolittle-raiders-dies-at-103/, last visited Apr. 9, 2019. 1
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barrister bullets BARRISTERS MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month at the Bistro by the Bijou (807 South Gay Street). Social time begins at 5:00 p.m., and the meetings begin promptly at 5:15 p.m. The next meeting will be held on May 8, 2019. There are many opportunities to get involved, and you are encouraged to contact Barristers President Mikel Towe (mtowe@ lewisthomason.com) or Vice President Allison Jackson (ajackson@ emlaw.com) for more information. STAFF THE VETERANS’ LEGAL ADVICE CLINIC The Veterans’ Legal Advice Clinic is a joint project of the KBA/ Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox 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. We serve approximately twenty to thirty veterans each month who have a variety of legal issues, including, but not limited to, family law, landlord/tenant, bankruptcy, criminal defense, consumer protection, contract, child support, and personal injury issues. We need attorney volunteers for the next two (2) clinics, which will be held on May 8 and June 12 from 12:00 to 2:00 p.m. at the Knox Co. Public Defender’s Community Law Office (1101 Liberty Street). Register to participate by clicking on May 8 or June 12 in the Event Calendar at www.knoxbar.org. On April 10th, attorneys Doug Dunn, Ashley Roberts, Benet Theiss, Tim Grandchamp, Brett Mayes, Kathryn Ellis, David Noel and Allison StarnesAnglea, along with law students Miranda Stoltz and Tami Schack, assisted thirteen veterans and their families during the monthly legal advice clinic.
SUPPORT THE VOLUNTEER BREAKFAST The Volunteer Breakfast occurs on the fourth Thursday of every month at 6:15 a.m. at the Volunteer Ministry Center (511 N. Broadway). We serve breakfast to about thirty to forty individuals and finish our work around 7:30 a.m. The Barristers Volunteer Breakfast Committee needs volunteers to prepare and serve food and sponsor each breakfast. We need four or five volunteers each time, and sponsorships are $150.00. You can volunteer, sponsor a breakfast, or both! Please join us in serving the needy in our community. If you would like more information about volunteering or sponsoring a breakfast, please contact the Volunteer Breakfast Committee Co-Chairs, Paul E. Wehmeier at pwehmeier@ adhknox.com or Matthew Knable at knablelaw@gmail.com, or sign up at http://www.knoxbar.org/KBA-News/help-volunteer-ministries. SOCIALIZE WITH A STATEWIDE HAPPY HOUR Join the Tennessee Defense Lawyers Association Young Lawyers Section, the DRI Young Lawyers Committee, and the Barristers for a Statewide Happy Hour on Thursday, May 2, 2019, from 5:00 to 7:00 p.m. at Pretentious Beer Co. (131 S. Central Street). Come have a drink or grab a bite with your friends and colleagues! This is a great opportunity to network, meet new faces, and get involved with some great organizations. Register at www.knoxbar.org by clicking May 2 in the Event Calendar. BARRISTERS ARCADE SOCIAL HOUR Join the Barristers for an Arcade Social Hour on Thursday, June 6, 2019 from 5:00-7:00 p.m. at Suttree’s High Gravity Tavern located at 409 S. Gay Street. This event is open to all KBA members and law students. Come out and have a drink or grab a bite with friends and colleagues. This is a great opportunity to network, meet new faces, and get involved, so join us. Register at www.knoxbar.org by clicking June 6 in the Event Calendar. SEEKING SPONSORS FOR CHARITY GOLF TOURNAMENT The Athletics Committee is currently seeking sponsors for this year’s charity golf tournament, which will take place at Holston Hills Country Club on October 21, 2019. If you or someone you know is interested in sponsoring, please contact the Athletics Committee co-chairs, James Parker (jparker@hdclaw.com) or Patrick O’Neal (patrick.oneal@ leitnerfirm.com.
Address Changes T. Mitchell Panter BPR #: 031744 Lewis, Thomason, King, Krieg & Waldrop, P.C. 620 Market Street, 5th Floor Knoxville, TN 37902-2237 Ph: (865) 546-4646 MPanter@LewisThomason.com
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Please note the following changes in your KBA Attorneys’ Directory and other office records:
Joshua S. Reed BPR #: 023846 112 Glenleigh Ct., Suite 2 Knoxville, TN 37934-3076 Ph: (865) 450-3333 joshreed@knoxvilletnlaw.com
Shannon van Tol BPR #: 017602 Apex Bank 430 Montbrook Lane Knoxville, TN 37919-2705 Ph: 865) 500-5119 shannon.vantol@apexbank.com
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Cullen M. Wojcik BPR #: 030564 Whitt, Cooper, Hedrick & Wojcik 607 Market St., Suite 1100 Knoxville, TN 37902-2240 Ph: (865) 524-8106 wojcik@knoxdefense.com
May 2019
SCHOOLED IN ETHICS By: Alex B. Long Doug Blaze Distinguished Professor of Law University of Tennessee College of Law
WHEN ZEALOUS ADVOCACY BECOMES EXTORTION AND UNETHICAL CONDUCT “A suit and tie doesn’t mask the fact that at its core, this was an oldfashioned shakedown.” - U.S. Attorney Geoffrey Berman, commenting on extortion charges facing lawyer Michael Avenatti. Lawyer Michael Avenatti recently made headlines (again) after getting arrested on extortion charges. According to the charges, in the course of representing a client who had a dispute with Nike, Avenatti told Nike that he had evidence that Nike had made illegal payments to the families of high school basketball players. If Nike did not pay his client, Avenatti said he would publicize Nike’s alleged illegal conduct and “take ten billion dollars off your client’s market cap.” In addition, Avenatti demanded that Nike pay him and another lawyer more than $20 million to conduct an internal investigation into Nike’s practices. In other words, Avenatti demanded payment on behalf of himself and his client or he would sue Nike and damage Nike’s reputation. A lawyer obviously has an ethical duty to diligently represent a client, including in pursuit of a settlement. And as one lawyer commenting on the Avenatti matter commented, “any settlement negotiation is, you know, ‘give me money or I will sue and that will be embarrassing for you,.’” Matt Levine, You Have to Threaten People Right, Bloomberg.com, March 26, 2019, https://www.bloomberg.com/opinion/articles/2019-03-26/ you-have-to-threaten-people-right. But at what point do tough settlement threats and demands cross the line into criminal extortion or otherwise unethical conduct? In terms of the ethics issues, Rule 4.4(a) of the Tennessee Rules of Professional Conduct provides that a lawyer shall not: (1) use means that have no substantial purpose other than to embarrass, delay, or burden a third person or knowingly use methods of obtaining evidence that violate the legal rights of such a person; or (2) threaten to present a criminal or lawyer disciplinary charge for the purpose of obtaining an advantage in a civil matter. The language in paragraph (2) would apply, for example, where a lawyer threatens to file criminal charges against a former client unless the former client dismisses a lawsuit against the lawyer. See Sallee v. Tennessee Board of Professional Responsibility, 469 S.W.3d 18, 45 (Tenn. 2015). Avenatti’s actions would probably subject him to discipline in Tennessee or any jurisdiction with a similar rule. While the language concerning threats of criminal or disciplinary charges is straightforward, there may sometimes be an issue as to whether a lawyer had some “substantial purpose” other than to embarrass or otherwise harm another individual under paragraph (1) in pursuing a course of action. Many of the cases involving this provision involve actions that serve legitimate as well as illegitimate purposes. Where the means a lawyer uses exceed the bounds of legitimate representation, some courts have been willing to find a violation of Rule 4.4(a)(1) despite the lawyer’s argument that he had been trying to zealously represent a client. See Kentucky Bar Association v. Reeves, 62 S.W.3d 360, 365 (Ky. 2002). Threats made during settlement discussions may also raise the specter of extortion charges. Perhaps the most famous example involves the lawyer who threatened to bring a lawsuit against “Lord of the Dance” Michael Flatley. The lawyer sent Flatley a demand letter, which included a draft complaint accusing Flatley of sexual assault and a settlement
demand of $100 million. So far, that sounds pretty standard for civil litigation (aside from the $100 million figure). However, the demand letter also advised Flatley that “any and all information” obtained during any resulting investigation and discovery “will be exposed” and that the lawyer was “positive the media worldwide will enjoy what they find.” This language, standing alone, might have crossed the line into extortion. But the lawyer also advised that any documentation revealing illegal behavior on Flatley’s part, including in tax or immigration matters, would be turned over to the appropriate legal authorities. This action would probably violate TRPC Rule 4.4 in that it involved the threat of criminal prosecution. But, according to the California Supreme Court, it also amounted the criminal extortions as a matter of law. Flatley v. Mauro, 139 P.3d 2, 20 (Cal. 2006). The result would likely have been the same in Tennessee. Extortion, as defined by § 39-4-112(a)(1) of the Tennessee Code, involves the use of “coercion upon another person with the intent to [o]btain property, services, any advantage or immunity.” “Coercion” is in turn defined as a threat, however communicated, to, inter alia, commit any offense; wrongfully accuse any person of any offense; expose any person to hatred, contempt or ridicule; harm the credit or business repute of any person; or take or withhold action as a public servant or cause a public servant to take or withhold action. Id. § 39-11-106(a)(3) (emphasis added). As the Tennessee Court of Criminal Appeals has explained, when a person’s threat moves from the pursuit of legitimate ends “to personal payoffs, then the actions become extortionate.” Moore v. State, 519 S.W.2d 604, 608 (Tenn. Ct. Crim. App. 1974) (quoting United States v. Enmons, 410 U.S. 396, 406 n. 16, 93 S.Ct. 1007, 35 L.Ed.2d 379 (1972)). The clearest example in Tennessee comes from State v. Parris, 236 S.W.3d 173 (Tenn. Ct. Crim. App. 2007), which held that a party’s threat to proceed with an embarrassing lawsuit unless the other party acceded to his demands as part of an separate, ongoing divorce proceeding constituted attempted extortion. Applying these principles to Michael Avenatti’s situation, Avenatti’s actions might cross the line into extortion in at least two ways. First, his statement that he would “take ten billion dollars off your client’s market cap,” standing alone, seems like a direct threat to harm the credit or business repute of Nike. It might be one thing to point out to an opposing party that litigation might impact its business standing, but it’s another to directly threaten to take such action. Indeed, as readers may recall, Avenatti was actually arrested shortly after tweeting that he was going to hold a press conference to disclose the alleged Nike scandal. But the action that pretty clearly seems to cross the line into extortion (depending upon the context) is the demand that Nike actually hire Avenatti to conduct an investigation into Nike’s practices. This seems like the sort of threat in pursuit of a personal payoff (“pay my client and pay me $20 million to do work for you or I will damage your business”) that the Tennessee Court of Appeals warned of in Moore. Lawyers have a duty to diligently and zealously represent their clients within the bounds of the law. But as the California Supreme Court observed in the Flatley case, threats “half-couched” in legalese may nonetheless be extortionate and outside those bounds. Even threats of embarrassment or legal action that fall short of Avenatti’s alleged “shakedown” may amount to extortion and a violation of Rule 4.4(a).
If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. May 2019
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OF LOCAL LORE & LAWYERS By: Joe Jarret Attorney at Law, University of Tennessee
THE TENNESSEE SUPREME COURT: THE FORMATIVE YEARS That the drafters of Tennessee’s Constitution of 1796 chose not to include an independent judicial branch, let alone create a supreme court, is interesting indeed. Opting rather to vest all judicial power in “such superior and inferior courts of law and equity, as the legislature shall, from time to time, direct and establish,” the legislature wittingly or unwittingly created a long and colorful road to the court that exists today. Initially, judges were to be elected by joint ballot of the General Assembly and were permitted to serve so long as they exhibited good behavior. 1 The governor also had a bit of power in judicial affairs, having been granted the authority to fill any judicial vacancy that occurred during a legislative recess. This was accomplished by the governor issuing an appointee a temporary commission that would expire, by operation of law, at the end of the next legislative session. 2
at common law and in equity” over which the Superior Court previously had jurisdiction. They were to exercise exclusive jurisdiction over all criminal matters, and have concurrent jurisdiction with the county courts over all civil matters, as well as serve in an appellate capacity over county court matters. The newly constituted Supreme Court was shed of its trial court duties, and transformed into an appellate Bench that decided cases that came before it via writs of error emanating from circuit courts, or by agreement of the parties. 6 It was comprised of two judges, elected by a joint ballot of the General Assembly, and, interestingly, one sitting circuit court judge. The Court was to sit twice annually in each of one of the five circuits, to wit, Washington, Hamilton, Mero, Robertson, and Winchester. For the first time in Tennessee history, the Court’s judges were required to issue written opinions with the record in each action.7
For about 13 years after the Constitution was written, county courts kept busy, although the Superior Court reigned supreme (pun intended), exercising original jurisdiction over all but the most minor of criminal matters. The Superior Court also sat in an appellate capacity, hearing appeals from the county courts. Appeals were most commonly tried de novo, and were extremely time consuming, making them unpopular with the Court and litigants alike. 3 It seems dissatisfaction with the speed at which the wheels of justice turned, was not limited to the appellate docket. There was a growing discontent amongst members of the Bar that the cost and length of time that litigation required was essentially ignored by both the Bench and the Legislature.
Overall dissatisfaction with the court system prompted a young Nashville lawyer by the name of Thomas Hart Benton to pen a series of critical, blistering essays under the nom de plume “Sir John Oldcastle.” The essays, published in Nashville’s Impartial Review and Cumberland Repository 4 in 1808, called for a complete overhaul of Tennessee’s Judicial System. Specifically, Benton recommended that the Tennessee Judiciary should be transformed into an exclusively appellate court, consisting of six circuit courts and a one-judge supreme court that would meet alternatively in Knoxville and Nashville, and that would have no original jurisdiction, but rather, would be limited to the supervision and correction of the law proceedings of the circuit courts. 5 Benton (who later achieved fame as a Missouri Senator and the author of the first Homestead Acts, which encouraged settlement by giving land grants to anyone willing to work the soil), was not content to merely pen letters to the editor. In 1809, he was elected to the Tennessee Senate, and immediately went about introducing and successfully enjoying the passage of legislation that resulted in the first major reorganization of the Court since statehood. Benton’s legislation served to abolish the Superior Court, replacing it with the Supreme Court of Errors and Appeals. The legislation also created an intermediate system of circuit courts between the county courts and the new Supreme Court. Circuit courts were empowered to exercise exclusive jurisdiction over “all matters and causes
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As you would imagine, subsequent State Constitutions brought dramatic change to the structure and function of the Supreme Court. Tennessee’s second constitution, adopted in 1834, made provision for a supreme court composed of three judges, “one of whom shall reside in each of the grand divisions of the State.” The constitution granted the court appellate jurisdiction only and fixed the tenure of judges at twelve years. The constitution required one judge from each grand division of the state and stipulated that judges had to be at least thirty-five years old. 8 In 1870 Tennessee adopted its third constitution. It provided for a fivejudge supreme court, and required that not more than two judges could reside in any one of the three grand divisions. The court was required to hold sessions in Knoxville, Nashville, and Jackson, with Justices being popularly elected for eight year terms. 9 Due to the paucity of dockets and minute books from the beginning years of the court, it’s difficult at best to accurately report on the Court’s case load. However, a review of the first sixteen volumes of the Tennessee Reports from 1796-1835 revealed that the Court issued 1,425 written decisions, and that individual judges penned 1,447 opinions (including concurring and dissenting opinions) during its formative years. Not bad for a fledging court on a fledging frontier! 10 Tenn. Const. (1796) art. 5, §§ 1,2. Tenn. Const. (1796) art. 2, § 14. 3 see A History of the Tennessee Supreme Court, Ely, J. W., Brown, T., Huebner, T. S., Brown, R. B., Thompson, R. A., Vile, J. R., & Pierce, C. A. (Eds.). (2002). A History of the Tennessee Supreme Court. Univ. of Tennessee Press, page 8. 4 The Impartial Review and Cumberland Repository was a Nashville newspaper that was published by T. Eastin from 1806-1809. 5 The Impartial Review and Cumberland Repository, May 12, 1808. 6 Ch. 49, §§ 1, 4 7, 12, 22, 23, 25, 26, 28; ch. 126, 1809 Tenn. Pub. Acts. 7 Id. 8 Tenn. Const. (1834) art. 6 § 2. 9 Tenn. Const. (1870) art. 6, §§ 1,2,3. 10 For an outstanding and exhaustive history of the Tennessee Supreme Court, see A History of the Tennessee Supreme Court, Ely, J. W., Brown, T., Huebner, T. S., Brown, R. B., Thompson, R. A., Vile, J. R., & Pierce, C. A. (Eds.). (2002). A History of the Tennessee Supreme Court. Univ. of Tennessee Press. 1 2
DICTA
May 2019
BAR HOPPING By: Brady Cody Lewis Thomason
Bar Hopping highlights one of the many beautiful courthouses around the State. The trick? It is up to you to figure out where. Congratulations to T. Harold Pinkley and Jared Garceau for correctly identifying the United States Supreme Court. Think you can name this courthouse? Email me at bcody@ lewisthomason.com with your answer. Correct answers will receive a shout-out in the next issue of Dicta. Check back next month for the reveal and a list of the big winners. Have a photo that you would like to submit? Send me an email and have it featured in an upcoming issue.
Photo Ops
Tennessee Bar Leaders at the ABA Bar Leaders Institute on March 13-16, 2019 in Chicago.
L-R: Hanson Tipton (KBA President-Elect), Joycelyn Stevenson (TBA Executive Director), Robert Carlson (current ABA President), Judy Perry Martinez (ABA President-Elect), Michelle Sellers (TBA Vice President), Peter Gee (Memphis Bar Vice President)
Members of the KBA Legislative Committee visited seven legislators during their trip to Nashville on March 26th. KBA President Wynne Caffey-Knight and KBA Legislative Committee Co-Chair Michael Brezina are shown here with Senator Becky Massey.
May 2019
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B I L L & P H I L’ S G A D G E T O F T H E M O N T H By: Bill Ramsey Neal & Harwell By: Phil Hampton Founder and CEO, LogicForce Consulting
IPAD PRO – COMPLETE LAPTOP REPLACEMENT OR TOY?
We are always debating about our personal likes and dislikes. For example, Bill’s favorite Charlie’s Angel is Kate Jackson, and Phil’s is Cheryl Ladd. We constantly argue over which Angel was the toughest and coolest. Bill says, “Tastes Great!” Phil says, “Less Filling!” Similarly, we continue to debate the merits of the Apple iPad Pro versus the merits of Phil’s favorite laptop – the Surface Laptop. In his more candid moments (which are few), Bill will admit to Phil that a full-blown laptop like the Surface Laptop will perform functions and have features that are not available on the iPad Pro. Bill has now been experimenting with the Third Generation iPad Pro 12.9; and we both now agree that it comes very close to qualifying as a full laptop replacement.
faster than almost all the portable PCs that are now available on the market. The speed of the graphics and the speed of the computing power is simply stunning. The device is also very, very stable. Bill has been using his iPad Pro 12.9 (3rd generation) since it first came on the market in October of last year, and it rarely crashes on him, even when he is using the split screen to play Solitaire on one-side and watch Charlie’s Angels reruns on the other. (Bill contends this qualifies as legal work because it relaxes him and lets him “live in the moment.”)
First of all, as most of you know, lawyers love iPads; and Apple has been very busy upgrading all of them recently. There is a new iPad Air. There is a new iPad Mini. Apple has dramatically reduced the price on the standard iPad. All iPads now work with the First Generation Apple Pencil. But, the iPad Pro 12.9” Third Generation is the MacDaddy of all iPads. It is really the only version of the iPad that can actually replace your laptop. The iPad Pro 9.7 is nice, but the screen is too small to substitute for a laptop.
The new Apple Pencil is very useful, responsive, and amazing, really. The new Pencil is charged by simply magnetically attaching it to the top of the screen. You no longer have to remove a cap and insert it into a Lightning Port. It is also very easy to hold and use; it is “easy on the hand.” You can use the new Apple Pencil to easily take notes. Writing on the Liquid Retina Display is a pleasant experience. For example, Bill recently used it to prepare a statement for a witness to sign by simply typing out the statement and turning the Apple Pencil over to the witness to sign it on the screen with the new Pencil. While it is true that a Surface Pro or a Surface Book has that feature, the whole process seems so much easier and handy to use on the iPad Pro.
The new iPad Pro, like the iPhone X, has a beautiful edge-to-edge screen and no home button. As a result, the new iPad 12.9 has a larger screen by dramatically reducing the bezel around the screen; and the resolution of the screen is simply stunning. You can review letter-size documents in their full size in portrait mode while still handling a device that is light, very portable and not clumsy at all.
Bill also likes to use his iPad Pro to remote into his office machine. He simply installed the Microsoft Remote Desktop Application, and he is able to view his work Microsoft Windows Desktop on the iPad. What is even handier is that Bill bought the iPad Pro version that has a built-in cellular modem (even more expensive), so that no matter where he is, he is able to “dial-in” to his desktop in just a few seconds.
Unfortunately, the new iPad Pro 12.9 is very expensive. The 64GB model costs $1,149. To make matters worse, it cannot really function well as a laptop replacement without a keyboard that will cost you $199. Moreover, to take full advantage of the capabilities of the iPad Pro, you will need the new Apple Pencil, which costs $129. So, before you know it, you have spent about $1,400 on the iPad. And, for all that money, you will not have a device you can use with a mouse. You will have to use either your finger or the Apple Pencil as the pointing device.
You can use the iPad version of the Microsoft Office applications on the iPad Pro, and they work very well, but they do not have all the features that the full-blown Windows laptop versions have. If you need all of those features, the best way to get them is to use the remote desktop client and remotely connect to your office computer.
In spite of all that, however, the iPad Pro 12.9 is a joy to work on and a thing of beauty. It features the A12 Bionic chip, which is much, much faster than the chips in prior generations of the iPad; and it is also
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We are both now of the opinion that the iPad Pro 12.9 can be a lawyer’s best friend, but Phil will not let go of his beloved Windows laptop until his dead, cold fingers are pried away from it.
DICTA
See you next month.
May 2019
WELL READ By:
Matthew McClanahan
“PARDON ME, RAY?” “Impeachment, Tennessee-style.” – Former Lieutenant Governor John Wilder “A coup.” – Former Governor & current U.S. Senator Lamar Alexander No matter what the participants called it, on January 17, 1979, the leading Democrats of Tennessee ousted the sitting Democrat Governor, Ray Blanton, to put Republican Lamar Alexander in his place. The true events leading to the early inauguration of Governor Lamar Alexander have many of the elements of any great Southern Gothic novel. A hardscrabble life in West Tennessee. The rise to political power. The fall into corruption, alcoholism, and contempt for the press. And a brewing pardon scandal that lead to one’s ultimate demise. Coup is the artful depiction, as told by Keel Hunt, of Governor Ray Blanton’s rise to power and the fall that shrouds his time as Governor. Hunt gives the reader a behind-the-scenes look at the final days of Blanton’s administration that sparked national media coverage and was compared to the Watergate scandal. Hunt deals fairly with Blanton, depicting his hard background from rural West Tennessee, ascendancy to the heights of political power, and fall into corruption. The Memphis Commercial Appeal called Governor Blanton, “a hillbilly version of Richard Nixon.” By the time of Governor Blanton’s early removal from office, his relationship, not only with the press, but even his former supporters would best be described as caustic. The cash-for-clemency scandal began to unfold when a Lebanon criminal defense attorney, Jack Lowery, was approached by a sketchy character known as “Bob Roundtree.” According to “Mr. Roundtree”, for $20,000 the criminal defense attorney could secure his client’s release and pardon. Sensing a larger conspiracy, Mr. Lowery reported his encounter to the local police and to Marie Ragghianti, Chairman of the Board of Pardons and Paroles, who showed it to the Assistant U.S. Attorney. The U.S. Attorney’s office then reported to the F.B.I., beginning the investigation into Ray Blanton’s Administration.
Calling on long time and well-respected Democrats Speaker Ned McWherter, Attorney General Bill Leech, and Lieutenant Governor John Wilder, along with Governor-Elect Lamar Alexander, a plan was hatched. After much clandestine debate and discussion, Republican Lamar Alexander took the oath of office three days early, flanked by Tennessee’s leading Democrats, effectively ending the reign of a corrupted government official. In writing Coup, Hunt interviewed numerous participants and exhaustively researched the scandal that ended Ray Blanton’s political career. Written in an engaging and suspenseful style, Coup holds the reader’s attention and makes the reader feel like he is watching the events as they unfold. There are numerous pictures throughout the work that add much to the story. Many individuals familiar to the Knoxville Bar Association make an appearance in the book, and I particularly enjoyed Mr. John King’s reminisces of the 1978 Tennessee Gubernatorial race. Forty years after the events in Coup occurred, much has changed in state and national politics. Lamar Alexander is a soon to be retiring senior U.S. Senator; Republicans hold super majorities in Tennessee; and partisan politics roil the entire nation. As we remember the forty-year anniversary of the “coup”, our current leaders would be wise to remember those powerful statesmen with deeply held political beliefs who set aside party affiliation and egos to do the right thing for the people of the state of Tennessee. When a reporter questioned Ned McWherter about undermining his fellow Democrat to install a Republican into office, the future Governor McWherter responded by saying, “First, I’m a Tennessean. And I think this is in the interest of Tennessee, regardless of party.” Politicians doing the right thing for the people, regardless of party? Now that would be a coup.
Under a cloud of suspicion and with little groundswell for support, Blanton chose not to seek reelection in 1978. As the F.B.I. investigation gained steam and his time in office dwindled to five days, under the cover of darkness, Blanton pardoned fifty-two state prisoners, including twenty convicted murderers. Among those granted a pardon was convicted double-murderer Roger Humphreys, son to a wellconnected Blanton supporter. According to an F.B.I informant, the embattled West Tennessee Democrat had plans for more pardons before Lamar Alexander’s inauguration in early 1979. Some feared that Blanton’s increasing erratic behavior would even lead to the release of Martin Luther King Jr.’s assassin James Earl Ray. Feeling powerless to do anything, but burdened with the knowledge that future convicted murderers may go free, U.S. Attorney Hal Hardin picked up the phone to orchestrate an end to the madness.
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Photo Credit: The Tennessean
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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
LIES MY TEACHER TOLD ME “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.”1 John Adams said that, as he represented perhaps the most unpopular clients of our founding era: British solders accused of perpetrating the Boston Massacre. Adams did some excellent lawyering: he first won a continuance, then selected a sympathetic jury, then performed brilliantly in the courtroom. He pointed out that, while British muskets had killed several colonists, there was no proof of intent, no proof even that an order to fire had been given. To the contrary, the evidence indicated that the soldiers had acted individually and spontaneously, defending themselves against an angry American mob. Adams won acquittals for most of the defendants. Only those who had actually fired the shots were convicted, and only for manslaughter. Ultimately, the stubborn facts prevailed. But while facts may be stubborn, we often ignore them or make up our own alternatives. We tend to think of this as a recent phenomenon, but human nature hasn’t changed over the course of American history. We’ve often made up fairy tales to replace unpleasant truths, and the fairy tales have a persistence of their own. Indeed, they’ve often made their way into our schools and textbooks. Enter James Loewen, that rare professor who writes things that people actually read. Jim has been on my public radio show several times to discuss his bestselling books: Lies Across America (about the outrageous claims made on many historical markers); Sundown Towns (places where African-Americans were literally not allowed to stay beyond sundown, long after Jim Crow was supposedly over); The Confederate and Neo-Confederate Reader (which used the declarations of many of the seceding states to determine, in their own words, why those states left the Union). Each of these volumes is fascinating, but the one that started it all, almost twenty-five years ago, was Lies My Teacher Told Me: Everything Your American History Textbook Got Wrong. When I heard the book was being reissued, I knew I had to talk to Jim again. Lies My Teacher Told Me has sold nearly two million copies, and some of its most avid readers are – you guessed it – teachers, especially history teachers, who, along with their colleagues in biology departments, are probably the most beleaguered members of their noble and underappreciated profession. In the book, Jim goes straight for the jugular, exposing the mythology that has surrounded the man who “proved” that the world is round and “discovered America,” Christopher Columbus. Jim points out that Columbus did neither of those things. Navigators and cartographers had long understood that the Earth is round. And the Americas had been discovered by humans, probably migrating from Asia, tens of thousands of years earlier. And those humans, far from being half-naked “savages,” were sophisticated, knowledgeable, and mostly friendly. But their technology was relatively primitive. Columbus noted ominously, “I could conquer the whole of them with fifty men and govern them as I pleased.”2 He then proceeded to do precisely that. Columbus and his men robbed, raped, and enslaved the natives. When they tried to run away, the Europeans cut off their noses and ears. When resistance
continued, the Europeans slaughtered them. When Columbus arrived in Haiti, the native population was an estimated eight million people; by 1555, they were all gone.3 Because slaves died in such vast numbers, Columbus decided to bring in more, initiating the transatlantic slave trade, one of the cruelest and most consequential acts in human history. The slave trade led to untold death and suffering and, eventually, to our greatest constitutional crisis, the Civil War. Almost none of this information was in textbooks in the early 1990’s, when Jim was writing his book. While the quality of some textbooks has subsequently improved, precious little space is devoted to Columbus’ dark side even today. He is still more Great Navigator than Great Enslaver. As evil as Columbus was, his most significant contribution to the course of human events was unintentional. Not only did he take American plants, animals, people (and gold) back to Europe, he brought a European import to the Americas: disease. This phenomenon is now called the Columbian Exchange,4 and it is also among the most significant events in human history. The Columbian Exchange had many effects, some positive, such as the spread of valuable crops around the globe. But in the Americas, it initiated a holocaust. No one knows precisely how many people lived in the Western Hemisphere prior to 1492, but some estimates exceed a hundred million. Most of them died within decades after Columbus’ arrival.5 It’s easy to see why these hard facts have been largely omitted from American textbooks. Just as modern Germans don’t like to think about the Nazi era, we don’t like to think about the less savory aspects of our history. But understanding the root causes of something as fundamental as slavery, which, again, led to the only war we’ve ever fought over our Constitution, is essential. In the immortal words of James Madison: A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.6 The mythology of Columbus is only the first of many American fairy tales that Jim Loewen debunks in his excellent book. If you’re curious about the others, I suggest that you get yourself two copies: one for yourself, and one for your favorite teacher.
1 Adams’ Argument for the Defense: 3–4 December 1770, available at https:// founders.archives.gov/documents/Adams/05-03-02-0001-0004-0016. 2 Lies My Teacher Told Me: Everything Your American History Textbook Got Wrong, 54 (The New Press, 2018). 3 Id at 57. 4 Crosby, Alfred, The Columbian Exchange: Biological and Cultural Consequences of 1492 (Greenwood Publishing Group, 1972). 5 Taylor, Alan, American Colonies: The Settling of North America, 40-45, (Penguin Books, 2001). 6 Letter to W.T. Barry, August 4, 1822, available at https://www.loc.gov/resource/ mjm.20_0155_0159/?sp=1&st=text
Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. 26
DICTA
May 2019
LONG WINDED By:
Jason S. Long London Amburn
A HOLLYWOOD SCRIPT “The best laid schemes o’ mice an’ men gang aft agley.” Many have heard this famous line restated as “The best laid plans of mice and men, oft go awry.” The original comes from a line in a Robert Burns poem from 1785 titled To a Mouse, on Turning Her Up in Her Nest With the Plough, hence the weird Scottish language. On a side note, Robert Burns could make pretty much any awful thing poetic (Ode to a Haggis?). In any event, I always loved the line, and not just because my dad repeated it to me incessantly while I was growing up. No, I think the reason I like the line is because, like all great poetry, it speaks a universal truth. Take this month’s column for instance. Sometimes, I write these columns and have no idea what I want to say until my fingers hit the keyboard (sadly, those columns are readily identifiable by their meandering nature and poor structure). Other times, I have a fully formed vision in my head. The words pour forth and I can write a thousand-word column in thirty minutes. What comes out is usually well-written (at least by my standards) and cogent. Sadly, this is not one of those times. I started my column this month with the best of intentions. I had a good concept. I turn 48 in two weeks and I was going to write about how different my life is now than 30 years ago, when I was a babyish 18. Sure, there are physical differences: I’m fatter, slower, balder and need more sleep. However, there are more interesting differences as well: When I was 18, I was motivated by idealism. I was excited about the prospects for my future (Where was I going to college? How would I use my life to better my fellow man?). Nowadays, I get excited by much more mundane things. I received a package in the mail this week and it was the new nasal pillows for my CPAP machine. You would have thought it was Christmas, my birthday, and the Fourth of July, all rolled into one. Anyway, in preparation of the column, I thought it may be fun to do some research as to what was going on in Knoxville 30 years ago, to compare it to today. That’s when my best laid schemes “gang[ed?] agley.” I went down the rabbit hole of the internet and became fascinated with one particular story which made headlines here in Knoxville (really the only significant story I could find without doing substantial research about 1989 Knoxville). This particular story came to be known as “The Inskip Shootout.” Many of you reading this article may be familiar with the story. Heck, some of you likely defended or prosecuted some of the participants. If so, you will no doubt find my telling of the story flawed and want to contact me to tell me how I got several facts wrong. I am a better storyteller than I am a historian and any complaints should be directed to co-Executive Editor, Chris McCarty. It started on the morning of December 4, 1989. As Jerry Meredith and his wife were driving down Merchant’s Road, they witnessed what appeared to be a robbery taking place at the local First Tennessee Bank branch (quick side note here, bank robberies really aren’t as common in real life as the movies would have you believe. When I was growing up, I watched all the good bank heist movies, and I just assumed that criminals pulled off bank robberies every day. In reality, you rarely hear about them in the real world. Kind of like quicksand. Bugs Bunny cartoons convinced me that quicksand was at least on the top ten list of ways I could die. Turns out, I’ve never really had to worry about it.). Anyway, Jerry was not your average bystander. He was a retired military officer and apparently had an overblown sense of justice and duty. Rather than simply calling the police, Jerry followed the bank robbers to their hideout off Inskip Road. The real hero here is Jerry’s wife who apparently May 2019
allowed her husband to engage in his crime fighting fantasy. If I told Carol Anne that we were going to chase some bank robbers, the story of the Inskip Shootout would have been very different. Once the bank robbers ( Jessie Adams, Frank McCarron and Mary Ann Eicke) got to their destination, Mr. Meredith called the police. When they arrived on scene, Eicke was heard to yell out the window “It’s the cops!” which is a classic response, too good to be true. It would have only been better if she followed it with “Eat hot lead, coppers!” The police surrounded the house and ordered the trio to come out. Eicke and McCarron quickly surrendered, but Adams wasn’t going down without a fight. A four-hour standoff ensued, which included the exchange of gunfire and tear gas. It does not appear anyone was seriously injured, although Officer Richard Giammario was shot four times in the chest. Thankfully, he was wearing a bulletproof vest. The futility of the moment must have dawned upon Adams. He was found lying on his back, on the porch, with his gun pointed at his own chest, threatening to kill himself. Here is where the account becomes unclear. Either, FBI negotiator Tom Locke (How great is this story? They had an FBI negotiator) convinced Adams to peacefully surrender, Officer Gary Moyers fired a warning shot causing Adams to drop his gun, or, as some say, Officer Moyers fired a shot knocking Adams’ gun out of his hand at the exact moment he was pulling the trigger to kill himself. I like to believe the last option as it completes the Hollywood script. In any event, Adams is still a resident of the Northeast County Correctional Facility in Mountain City where he is serving out a lifesentence. He has apparently become a Christian and spends his days ministering to other prisoners. If this story interests you as much as it distracted my otherwise well-planned article, you should check out the award-winning photo taken by Jack Kirkland of the News Sentinel showing Adams laying on the porch with the gun on his chest and Officer Moyers in the background with a gun trained on him.
Longtime Knoxville News Sentinel photographer Jack Kirkland shows the award-winning photograph he made Dec. 4, 1989, of a bank robber surrendering at a Inskip Drive location. LIFE magazine reprinted the photograph over a two-page spread and Kirkland said police magazines from throughout the country bought the picture for reprinting. (Saul Young/News Sentinel)
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BARRISTER BITES (OR BREWS By: Angelia M. Nystrom, UT Institute of Agriculture
JD, LLM
THE BEST PART OF WAKING UP IS…. I never understood the appeal. Growing up, our house was filled with the aroma of freshly-brewed coffee. My dad fired up the old Mr. Coffee at promptly 5:00 a.m. every morning. He and my mom would then split a full pot of Folgers (the kind that came in the really big can). When the first pot was gone, my dad would make a second and then fill a large green Stanley thermos to take with him to work at UPS. And when he arrived home at night, he would make yet another pot of coffee, which was his beverage of choice with dinner. He truly believed “the best part of waking up is Folgers in your cup.” In law school, a number of my classmates would drink coffee like water in order to pull all-nighters. I enjoyed the caffeine buzz from iced tea (and Diet Coke) but never really got into the coffee craze. It smelled nice but never tasted quite as good as it smelled. It really didn’t have much appeal to me. And then I met Hugh. Hugh is a coffee fanatic. When we first met, he traveled for Disney and practically lived at Starbucks. Every weekend, he would ask me to meet him at Starbucks near where I lived. We would drink coffee and read the Tennessean and discuss the news of the week and plans for the weekend. But those Saturday mornings were usually a highlight. Often, he would surprise me at work during the week with a cup of coffee. And I pretended to like it because I liked him. And then, one fateful day, I decided I did like it. A lot.
personality. With the Bunn, though, that doesn’t seem to matter. Hugh also has a Keurig at his office and says that the K-cups by Black Rifle are good for use with it. I’ll take his word for it because I cannot get into the Keurig craze – the servings just are not large enough to justify using one. I’ve also tried to make the Silencer Smooth in the French press I bought Hugh for Valentine’s Day several years ago at the Hermitage Hotel. For what it’s worth, the Hermitage Hotel has the best coffee in the entire world. When we are in Nashville, we always have breakfast there just to get the coffee. I asked one time what coffee they used-- certain that it was some sort of rare blend. Not so… it’s Royal Cup – same thing that is used in travel centers and law offices throughout the US. That being said, I cannot replicate it at home, even with the best coffee. For the good of my marriage and my relationship with my co-workers, the Bunn had better continue to work for the foreseeable future because it seems to be my best option for really good coffee.
I’m not the only lawyer who loves coffee.
Amanda Busby also laments that she cannot live without coffee. “I would definitely say coffee is the top of my list of things I cannot live without. It is just about the perfect beverage. It wakes you up and it is warm. I probably like it so much because it reminds me of my mother and grandmother who spent a lot of time together talking and drinking coffee. My grandmother told me that I could not drink it unless I drank it black and that is still how I like it the best. I remember signing an agreement with one of my mother’s friends when I was about 12 agreeing not to drink alcohol, smoke or drink coffee before I was 21 in exchange for her friend’s agreement to pay me $100. This was probably one of my first experiences with contracts. In any event, I did not get the $100.”
Trace is proof that coffee does not hurt a developing baby. Before I knew that I was pregnant, I drank an entire pot of Cuban chicory coffee every morning before work. This happened for at least a month. He’s pretty hyper, but I’m not going to blame the coffee for that. Now, I make sure I am up at least an hour and a half before I have to leave for work. I spend my first hour every morning on the sofa with my dog, the local news and my coffee. It really starts my morning off right. My current favorite is Black Rifle Coffee Company’s Silencer Smooth. It is aptly named, as it is the smoothest coffee that I have ever tried. (I like their CAF and AK-47, too, but Silencer Smooth cannot be beat.) My morning is not complete unless I have two 12 oz cups of it, with a little Coffee Mate Sugar Free Hazelnut creamer added in for good measure. If I happened to have made it, I will also top it off with homemade whipped cream. It is my guilty pleasure and truly is the one thing I cannot live without.
We all have one thing that we cannot live without – that thing that makes life a little more enjoyable, no matter what it may be. Mine happens to be coffee… and I hear Starbucks calling my name.
My favorite way to prepare it is in the Bunn professional coffee maker that we received as a wedding gift. The Bunn is nearly two decades old but still works like it did the day we got it out of the box. My secret to good coffee with the Bunn is to use extremely cold water. Hugh says that is counter-intuitive because the Bunn just heats the water anyway; however, I think it works quite well. Truly, though, the Bunn is fool-proof because even Hugh can make good coffee with it. He doesn’t measure the coffee grounds, which is completely against my Type-A
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DICTA
May 2019
BENCH AND BAR IN THE NEWS How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to Marsha Watson at mwatson@knoxbar.org. CORRECTION TO MARCH DICTA The following disclaimer was omitted in the March Legal Update column on page 13 which was written by Christine Ball-Blakely: Any opinions expressed in this article are those of the author and are not attributable to the Tennessee Valley Authority or to the United States of America. PARALEGAL ASSOCIATION MEETING The Smoky Mountain Paralegal Association (“SMPA”) will hold its monthly meeting on Thursday, May 9, 2019, at 12:00 p.m. at the Blount Mansion Visitors Center, Knoxville, Tennessee. Patrick Slaughter will be presenting. A lunch buffet is available at the cost of $12/ person with reservations. Please contact Caroline Sudlow, ACP, at president@smparalegal.org or (865) 215-3676 for additional information and/
or lunch reservations. If you would be interested in speaking at a future SMPA meeting, please contact April L. Denard, CP, First VicePresident, at aprileigh34@gmail.com.
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McKellar & Easter is seeking an attorney to rent office space in its West Knoxville location. Rent shall include access to the internet, phone lines, a fax line, and copy machines. Additional office space can be provided for a legal assistant or paralegal if necessary. Please email a resume and cover letter to ndm@helpingclients.com
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3,000-plus s.f. of office space near downtown. Easy access. Downtown views. Ample parking. Two suites of five offices, plus five separate offices. Spacious, attractive lobby. Common kitchen. Highly responsive, nonprofit, landlord on premises. Call 865-525-6806 for information. Contact Frank Graffeo at 525-6806.
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Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 900 sq ft. Present floor plan accommodates four offices plus a conference room and a reception area. One Level. Offices on either side occupied by long-term law firms. Very Affordable Rate with a two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.
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: •
West Knoxville-Bearden Office Space West Knoxville lawyer has office space for rent at 4008 Sutherland Avenue. The rent includes internet, ample parking and common area maintenance. Inquiries: leslieahull@gmail.com.
THE KNOXVILLE BAR ASSOCIATION presents OVER 50 LUNCH FOR SENIOR ATTORNEYS & THEIR GUESTS
Ignored Heroes of World War II: The Manhattan Project workers of Oak Ridge, Tennessee Featuring
Richard Cook, Author & Historian Wednesday, June 5, 2019
May 2019
11:30 a.m. - 1:00 p.m. Calhoun’s on the River - 400 Neyland Drive
Price includes entree, vegetable, salad & beverage. If you have dietary restrictions, please provide us with at least 48 hours’ notice of your limitations. PRICE: $35.00 (Includes tax & gratuity) Enclose check payable to “The Knoxville Bar Association”. Mail/deliver check & registration form to: The Knoxville Bar Association 505 Main Street, Suite 50, P.O. Box 2027, Knoxville, TN 37901-2027 (865) 522-6522 Prepay online at www.knoxbar.org. Please note that lunch will be served by 11:30 a.m.
DICTA
29
Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System
PRO BONO SPOTLIGHT By: Kathryn Ellis Pro Bono Director Legal Aid of East Tennessee
Want to Volunteer?
Fill out our new Pro Bono Volunteer Survey: https://www.surveymonkey.com/r/DCTWYFSt
“YOU SHOULD PUT THAT IN DICTA” REDUX
Many moons ago, Terry Woods wrote an article for DICTA about area attorneys discovering particular perks about participating in the Pro Bono Project and saying, “I never heard that. You should put that in DICTA!” So, when I was coming up with an idea for this month’s article, I reached out to Terry and asked if I could refresh everyone’s recollection about what she covered in that article. In a very eloquent response, Terry said, “Sure.” So, here is the newest edition of the “You Should Put that in DICTA” article: 1. You get CLE credit for Pro Bono work! • That’s right – you get one hour of ethics credit for every five hours of pro bono service you report. [Tenn. S. Ct. R. 21, § 4.07(c)] • Don’t forget – you must provide the service through “court appointment, an organized bar association program or an approved legal assistance organization, or of pro bono mediation services as required by Tennessee Supreme Court Rule 31 or the Federal Court Mediation Programs established by the United States District Courts in Tennessee.” 2. You can refer a pro bono file to us! But, why would you do that? • First, you would get CLE credit for your reported hours, you would avoid being surety on a cost bond (see #5), and all of the other personal benefits of handling a Pro Bono Project file. • Second, the more cases the Pro Bono Project can report really helps us to prove that lawyers really are doing pro bono work. If you already have a pro bono case that was not referred to you by the Pro Bono Project, let us know. We will have your client sign a couple of forms so that we can open a file and verify the client’s eligibility. 3. You can withdraw from a pro bono case! • Despite what many attorneys think, the same rules apply to withdrawing from a pro bono case that apply to withdrawing from a fee-generating case. [RPC 1.16) 4. You don’t have to do everything a pro bono client wants! • Your ethical duty to perform pro bono services does not eclipse all other ethical obligations. You do not sacrifice your professional judgment about what claims have merit and what actions should be taken just because your client is indigent. [RPC 3.1] 5. You should not pay expenses for a pro bono client! • Your agreement to assist a client on a pro bono basis means that you will not seek payment from the client for your services, it does not mean that you have to spend money on a client’s filing fees, cost bonds, etc. • Security for costs is waived by TCA § 20-12-127, and Supreme Court Rule 29 creates a presumption of indigency for litigants who meet “the Legal Services Corporation’s poverty guidelines,” which includes all clients referred for assistance through the Pro Bono Project. 6. You may seek attorney fees in pro bono cases! • The only restriction on collecting attorney fees in a pro bono case is that you collect them from the adverse party instead of from the client. You will not get CLE credit if you collect a fee, but you can use the fee to attend a KBA CLE (which, as a reminder, you may attend for free if you do a specified number of pro bono service each year through the Pro Bono Project). 7. You don’t have to wait for us to call you! • If you are ready to help with a Pro Bono Project case or volunteer at a clinic, reach out to me! My direct number at Legal Aid of East Tennessee is (865) 251-4951 and my e-mail address is KELLIS@LAET.ORG. So, now you’re probably asking what is “pro bono service”? You don’t have to look any further than Rule 6.1 of the Tennessee Rules of Professional Conduct to find out. Rule 6.1 says, A lawyer should aspire to render at least 50 hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should: (a) provide a substantial portion of such services without fee or expectation of fee to: (1) persons of limited means; or (2) charitable, religious, civic, community, governmental, and
educational organizations in matters that are designed primarily to address the needs of persons of limited means; and (b) provide any additional services through: (1) delivery of legal services at no fee or at a substantially reduced fee to individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties, or public rights, or charitable religious, civic, community, governmental, and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate; (2) delivery of legal services at a substantially reduced fee to persons of limited means; or (3) participation in activities for improving the law, the legal system, or the legal profession. (c) In addition to providing pro bono publico legal services, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means. As Terry noted in her article, Comment 9 on Rule 6.1 acknowledges that “there may be times when it is not feasible for a lawyer to engage in pro bono services. At such times a lawyer may discharge the pro bono responsibility by providing financial support to organizations providing free legal services to persons of limited means. Such financial support should be reasonably equivalent to the value of the hours of service that would have otherwise been provided.” Further, Comment 10 states, “Because the efforts of individual lawyers are not enough to meet the need for free legal services that exists among persons of limited means, the government and the profession have instituted additional programs to provide these services. Every lawyer should financially support such programs, in addition to either providing direct pro bono services or making financial contributions when pro bono service is not feasible.” And, Comment 11, notes that “[l]aw firms should act reasonably to enable and encourage all lawyers in the firm to provide the pro bono legal services called for by this Rule.”
Note: That means “Every lawyer, regardless of professional prominence or professional work load, has a responsibility to provide legal services to those unable to pay.” Tenn. Sup. Ct. R. 8, RPC 6.1 cmt. [1]. Emphasis on “legal services” Emphasis on “substantial” Translation: Unintentional pro bono doesn’t count Translation: Activities benefitting poor people (i.e., coaching Youth Polo probably doesn’t count) Not “or” Emphasis on “additional” (i.e., service under subparagraph (a) is not enough)
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Mark Your Calendars:
* May 4 (9:30-12:30) – Debt Relief Clinic at the Knox County Public Defender’s Community Law Office * May 4 (9:00-12:00) – Knox County Saturday Bar at LAET’s Knoxville Office * May 9 (12:00-2:00) – Veterans Advice Clinic at the Knox County Public Defender’s Community Law Office * May 18 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County Office _______________________________________________ * June 1 (9:00-12:00) – Faith & Justice Advice Clinic at Immaculate Conception of the Blessed Virgin Mary Catholic Church (414 W. Vine Ave.) * June 12 (12:00-2:00) – Veterans Advice Clinic at the Knox County Public Defender’s Community Law Office * June 15 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County Office
The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902 phone (865) 637-0484 e-mail:kellis@laet.org fax (865) 525-1162
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DICTA
May 2019
Q: A:
THE LAST WORD By:
Jack H. (Nick) McCall
What was it like to travel on bicycle across Vietnam and, in your case, Paul, go back to the country where you served in the Army fifty years ago?
PAUL AND JANET HOGAN, HOGAN & HOGAN
Paul: I was there fifty years ago that month – February and March – and it had changed a lot. I came back in April 1969. The people love Americans; they don’t like the Chinese.
is exported around the world, including to California. Another big island off Nha Trang was where the U.S. forces had a broadcasting station; it’s now a big development with an amusement park.
Janet: The traffic is impossible, although very few people have cars! No traffic lights. The country is actually pretty prosperous.
Janet: Contrasted to Hoi An, Nha Trang is hyper-modern. It looks like a very modern Asian large city.
Paul: There are 12 million people in Saigon and 8 million motor scooters. They’re everywhere. We arrived in Ho Chi Minh City (Saigon) and flew up to Hanoi. We spent a night on a boat in Ha Long Bay in the Gulf of Tonkin. There must have been 100 boats at night – big, beautiful boats, and the bay is full of islands and giant outcroppings, like volcanic rocks of some sort. Amazing scenery. We went from there and went back to Hanoi and began riding bikes with our guide.
Paul: Next, we went by car to Da Lat, in the Central Highlands. It was big when Vietnam was a French colony. A large man-made lake sits in the middle of the town; there’s also a golf course, big greenhouses for strawberries, and lots of French-style villas. No Westerners were there at all, but there were a lot of people there. Since it’s in the highlands, it has a cooler climate. We were there on a weekend, and there were lots of people in town.
Janet: The Vietnamese are very good with gardens; there are lots of giant topiaries, and ancient architecture from the Chinese are mixed in with French architecture in all of the big cities. Our guide was wonderful, and he’d take us to peoples’ houses for lunch. Part of those houses were temples: they had shrines to their ancestors that took up half of the house. Sometimes, they build additions to the old part of the houses; they never tear anything down. Paul: Next, we flew from Hanoi to Hue, the ancient city with a big citadel where there was so much fighting in 1968. A lot of Hue was bombed, but it was rebuilt. Janet: Hue has a lot of palaces and old buildings, as it was the imperial city of Vietnam. My favorite place, though, was Hoi An, the “city of lanterns.” Lanterns run along the river, and it’s really a charming and ancient city. Outside Hoi An, there’s a lagoon where the Communist government has divided the lagoon into squares, and people have their own areas for fishing, with floating fishing shacks for the holders to oversee their area. They catch crab and bass, and there was a floating restaurant on the lagoon. The boats used on the lagoon were made out of airplane wings from the war! We rode by a lot of rice paddies. The Vietnamese use every part of the rice plant, including the rice grass for all kinds of things. It’s dried and piled up, and bricks of rice straw are used for growing mushrooms. The children are amazing. They all said, “Hello, hello!” in English. One was really precocious; he said: “Hello, how are you, I’m fine!”, before any of us could say a word. The kids were as sweet and friendly as can be. While we were in Hoi An, we had what we called our “bicycle summit.” It was the week of the Trump-Kim Jong Un summit in Hanoi. I held a U.S. flag; our guide had a North Korean flag; and Paul had a Vietnamese flag.
Janet: We learned that lots of people from Saigon ride their scooters, five hours, up to Da Lat to party, then they drive back home the next day. Paul: We ended up in Saigon, now Ho Chi Minh City; there’s still a lot of French architecture there, mixed in with huge skyscrapers. Twelve million people. It’s enormous. It looks like New York. Janet: The whole experience was very intimate because we were with the Vietnamese people in their homes, eating lunch between bicycling, and they’d give us footbaths, every time we went to lunch. The food they served was amazing, too! They’d talk about how they felt about the war, and then you found out that they had family in the war. Paul: As we were eating lunch in one family’s home in Hanoi, our guide mentioned to the man of the house that I’d been in the war. He couldn’t speak English, but he was a very friendly guy and he shook my hand. On the way out, he stood at attention and saluted me. He’d been in the North Vietnamese Army. I saluted him back. He couldn’t have been any nicer. We met other people who’d been in the South Vietnamese Army, too. Paul: We asked several times how many lawyers they have in Vietnam. The answer: Very few. You don’t see lawyers there. Nobody we talked to said that being a lawyer in Vietnam is considered to be a great vocation. Janet: I asked, “How do you resolve disputes?” I was told, “We just handle them ourselves; if lawyers get involved, people will kill you!” The last thing they want to do is to get a lawyer involved. Getting a lawyer involved in a dispute is seen as a total act of desperation, and it actually almost sounded dangerous to get a lawyer involved. It’s a very different outlook from ours.
Paul: After Hoi An, we flew into Cam Rahn Bay and went to Nha Trang on the South China Sea, which is where I was stationed during the war. Our guide found a guy to take me to where I used to live, and my old house was still there. Fifty years ago, there were no skyscrapers, and all dirt roads, and the Grand Hotel, which served as a US Army headquarters, was the largest hotel in the town. Now, it looks like Miami Beach. We went on a boat trip off Nha Trang. Have you ever heard of bird’s nest soup? There are seven islands off Nha Trang: these islands are protected, and men live in cliff dwellings to harvest the bird nests – they are actually swallows’ nests – from which the soup is made. It sounds gross but it is a real delicacy, and this
“The Last Word” column is coordinated by KBA Member Nick McCall. If you have an idea for a future column, please contact Nick at nick.mccall@gmail.com May 2019 DICTA 31
Prsrt Std US POSTAGE
PAID
KNOXVILLE, TN PERMIT NO. 3 0 9
P.O. Box 2027 Knoxville, TN 37901
On April 11 and 12, 2019, 322 lawyers, law students and law firm staff participated in the 14th Anniversary Law Practice Today Expo. This was an all-new record for attendance and was due in large part to the outstanding line-up of CLE sessions. This year’s Expo included local and national speakers, panel discussions, and idea exchanges that provided education and networking to lawyers and law firm staff from large, midsize, and small firms. There were 22 CLE sessions, 38 sponsors, 28 judges, and Mayor Glenn Jacobs was our featured speaker for our Judicial Roundtable Luncheon.
Diamond Sponsor The Trust Company of Tennessee
Silver Sponsors AbacusNext ALPS Platinum Sponsors American Addiction Centers Attorneys Ins. Mutual of the South, Inc. A-Z Office Resource, Inc. (AZOR) Get Noticed Get Found Black Bear Investigations, LLC LBMC Information Security Bradford Health Services Lexis Nexis Brown Professional Insurers Sword & Shield Enterprise Security Cornerstone of Recovery TCV Trust & Wealth Management Creative Business Systems Geosyntec Consultants Gold Sponsors HomeTrust Bank Appalachia Business Comm. Corp. InfoSys Partners Computer Systems Plus Knoxville Executive Suites, Inc. M.L. Barnes & Associates LawPay LOGICFORCE Special Sponsors Mercedes-Benz of Knoxville Ritchie, Dillard, Davies & Johnson, PC Mike Baker Insurance Consulting Association of Legal Administrators – NetGain Mobile Diagnostics Knoxville Chapter Pileum Corporation Thomson Reuters PwC Law Firm Solution Pugh CPAs Saratoga Technologies Smith.ai Virtual Receptionists Swafford Insurance LLC The 9 Group The Trial & Litigation Company Wells Fargo Advisors