DICTA May 2022 by Knoxville Bar Association

Legal Update: Telephone Game: The Tennessee Court of Appeals Finds an Insured’s Reliance on Insurance Agent’s Statement Not Reasonable or Justifiable . . . Page 15

A Monthly Publication of the Knoxville Bar Association | May 2022

CONGRESS ACTS TO REIGN IN MANDATORY ARBITRATION

Thanks to all our Expo Sponsors

DICTA

May 2022

In This Issue

Officers of the Knoxville Bar Association

May 2022

COVER STORY 16

Congress Acts to Reign in Mandatory Arbitration

CRITICAL FOCUS President Jason H. Long

President Elect Loretta G. Cravens

Treasurer Catherine E. Shuck

Secretary Carlos A. Yunsan

Immediate Past President Cheryl G. Rice

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

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

Michael J. Stanuszek Amanda Tonkin Elizabeth Towe Zachary Walden

5 7 13 15

The Knoxville Bar Association Staff 19

President’s Message

Civil Action

Practice Tips

Attorney’s Fees and the Nexus of Two Tennessee Regulations

Management Counsel

Don’t Say a Word? Nondisclosure Agreements In The #Metoo Workplace

Legal Update

Telephone Game: The Tennessee Court of Appeals Finds an Insured’s Reliance on Insurance Agent’s Statement Not Reasonable or Justifiable

Schooled in Ethics

Top Ten Legal Ethics Issues I Wish the Board of Professional Responsibility Would Address in an Ethics Opinion

WISDOM 6 Marsha S. Watson Executive Director

Tammy Sharpe Director of CLE & Section Programming

Jonathan Guess Database Administrator

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

Tracy Chain LRIS Administrator

Jeanie Matthews LRIS Assistant

Dicta

All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Watson (522-6522). DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. May 2022

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Volume 50, Issue 5

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.

Dicta is the official publication of the Knoxville Bar Association

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

Managing Editor

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

Marsha Watson KBA Executive Director

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22 23 24 29 31

What I Learned About Inclusion and Why It Matters

Hearing

Bill & Phil Gadgets

Microsoft Journal

Better

Logistics

Hello My Name Is

Isaac Westling

Lessons Learned: Reflections from a Retiring Lawyer

Stress

Around the Bar

Chair Chat

Legally Weird

Hole Lot of Faking Going On

Of Local Lore & Lawyers

About a Soldier

Well Read

Clarence Gideon: The Pro Se Petitioner That Changed The United States

Grammar Grinch

Writing Unapologetically

Barrister Bites

It Started with Pigeon… and Ended with Frog

Mitchell’s Malarkey

Calling All Mediators

Tell Me A Story

What Were the Choices You Made That, Intentionally or Not, Led You To This Place in Your Career?

COMMON GROUND 4 20 26 28 30

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

SECTION NOTICES & EVENT CALENDAR

Section Notices

There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 522-6522. Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. If you have a CLE program topic or speaker suggestions, please contact the ADR Section Chairs Joe Jarrett (566-5393) or Betsy Meadows (540-8777). Bankruptcy Law Section The Bankruptcy Section plans CLE programs and helps coordinate volunteers for the Pro Bono Debt Relief Clinics. The next Pro Bono Debt Relief Clinic will be held on June 25 and volunteer registration is available at www.knoxbar.org. If you have a program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. Save the date for the “Annual Corporate Counsel Update” extended CLE on August 24. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs David Headrick (363-9181) or Marcia Kilby (362-1391). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. If you have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (931-260-5866). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition, to in-house and government attorneys. Join the Employment Law Section for the upcoming CLE program “Annual FLSA Update” on May 25. If you have a program topic or speaker suggestions, please contact the Employment Law Section Chairs Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880), Kendra Mansur (771-7192), or Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. Join the Section for the upcoming CLE “How to Expedite Your Divorce Case in Knox County Chancery Court” on June 7. If you are interested in getting involved, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Lawyers Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you are interested in getting involved or have suggestions for CLE topics, contact Hon. Suzanne Bauknight (545-4284) or Ron Mills (215-2050). Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you have suggestions for CLE topics, please contact Section Chairs Justin Pruitt (215-6440) or Mike Stanuszek (766-4170). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice. The Section will sponsor a webinar on May 25 from 12-1 p.m. Sean Martin, a Nashville based attorney and owner of the legal mobile billing software app Time Miner. Sean will speak to the group about tools and technology tips and how to run a solo practice for less than $100/month. Also, the Section is hosting a social on Tuesday, June 21 at 35 North (11321 Kingston Pike) from 5:30-7:00 pm. Jennifer Noell, Realtor with Berkshire Hathaway HomeServices Dean-Smith Realty, is graciously providing drink tickets and light refreshments. Section members can network and connect with other new attorneys in the area! If you would like to get involved in planning Section activities next year, please contact Section Chairs Courteney Barnes-Anderson (803-341-0196) or Sanjay Raman (607-972-6140). Senior Section The KBA Senior Section plans to start meeting again in 2022 for lunch. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307). Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tim Grandchamp (392-5936), Brittany Nestor (214-7869), or Tripp White (712-0963).

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Law Office Tech Committee Functions Committee Professionalism Committee Access to Justice Committee Veterans Legal Advice Clinic Barristers Meeting Judicial Committee Federal Court Bench Bar Conference Wellness Committee Hike CLE Committee Diversity in the Profession Committee FLSA Update Webinar New Lawyers Section Webinar Board of Governors Past Presidents Dinner Wellness Committee

June 7 8 8 9 9 11 14 21 22 24 25

Law Office Tech Committee Veterans Legal Advice Clinic Barristers Meeting Judicial Committee Knoxville Bar Foundation TurboSpin Professionalism Committee New Lawyers Social Board of Governors Wellness Committee Debt Relief Clinic

Check the KBA Events Calendar at www.knoxbar.org for scheduling updates. May 2022

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

CIVIL ACTION Forgive my fairly obvious bias, but Knoxville, and upper East Tennessee generally, is a pretty great place to practice law. In fairness, I am a born and bred Knoxvillian and, with the exception of a few early clerkships during law school, I have spent my entire professional life in Knoxville. That being said, I have been privileged to meet lawyers around the state and country and do feel I have some comparative basis for assessing the strengths of our bar. Aside from the picturesque setting, the abundant opportunities to improve the lives of a generally thankful citizenry, and the high quality of our judiciary, there is one overall factor which I believe makes East Tennessee an attractive destination for lawyers: the civility of practitioners in this area. We have all heard stories from other bars about attorneys who abuse process, engage in unnecessarily argumentative and spiteful tactics, and generally believe that, in order to best represent a client, they must make life as uncomfortable as possible for opposing counsel. The practice of law is difficult to begin with. It becomes exponentially so when opposing counsel is noticing parties and attorneys to hearings and depositions without first consulting calendars or engaging in dilatory and obfuscating discovery tactics. (My apologies to my transactional brethren. I know you deal with your own set of headaches with contentious opposing counsel, but I am more familiar with irascible litigators.) I have heard more than one attorney say “I am glad I don’t have to practice in [insert the name of local bar].” That phrase is usually preceded or followed by “We have it good in Knoxville.” I have said it myself on a number of occasions. I have often wondered why that statement is generally accepted as true. There is little to distinguish our bar from sister bars around the state. We offer similar services, deal with identical issues facing the practice, and, accounting for differences in size, are generally identical in form and function. Of course, some of the comments are probably attributable to simple pride in the community. Most lawyers (though not all) I speak with who extoll the virtues of our bar are Knoxville lawyers. It is natural to want to elevate one’s own community and display almost patriotic pride in the organization of which we are members. Still, I don’t think that accounts for all of the platitudes I hear. I have, on more than one occasion, heard lawyers from other bars speak wistfully about how they would prefer to practice in Knoxville because of our collegiality. I think there is something to the notion that lawyers in upper East Tennessee are uncommonly civil to one another. There must be other factors at play that make that so. I can only surmise that we have benefitted over the years from true leaders and mentors within the bar who considered civility and collegiality to be of primary importance. Names like Bob Ritchie, Don Paine, and Pam Reeves come to mind. I recognize there are countless others, and I list those three only as an example and because I saw their May 2022

approach to the practice with my own eyes. Bob Ritchie never missed a chance to say “hello” to a young attorney and make sure I was doing o.k. in my early years of practice, even though our paths never really crossed professionally. Don Paine would spend countless hours speaking with lawyers and educating us on how best to approach difficult legal questions. Pam Reeves never met a stranger and worked her entire life to be inclusive and constructive. I know everyone reading this column has their own mentors they would add to this list to the point that we could fill up an issue of Dicta with names and anecdotes of great mentorship on the gospel of civility. In any event, these people who came before us valued civility and understood the administration of justice functioned best when all parties were professional and dedicated to the task at hand, rather than being wrapped up in the frustrations that arise when we pick on each other and try to play unnecessary games. Moreover, these people recognized that they had to live and work with one another on a regular basis and a civil approach was the best way to ensure good representation across all matters and for all clients. We are at our best when we can focus on the law, unfettered by concerns about difficult personalities. These leaders and mentors also structured a bar that fostered civility and professionalism. The Knoxville Bar Association has always shown commitment to and promotion of civility within our community, from our Professionalism Committee (thank you to Chancellor Weaver and James Stovall for your strong leadership of one of our most active committees), to CLE offerings on professionalism, to our formal statement of Guidelines for Professional Courtesy and Conduct (found in the front of your KBA Directory), to our social gatherings and celebrations designed to promote and foster relationships within the bar. All of these actions are intentional and designed in part to continue an atmosphere of civility and friendship amongst our lawyers. Like almost all functions of the KBA in which I take pride, Marsha and her staff should be acknowledged for their commitment to promoting civility and professionalism. They lead by example, treating our members and nonmembers with the courtesy and respect we want from one another, and develop programming and functions to further enhance our appreciation for a collegial bar. I hope everyone had a chance to attend this year’s Law Day program and enjoy the panel discussion on civility in a polarizing era. Thank you to Judge Atchley, Rachel Hurt, Professor Teri Baxter, and Loretta Cravens, for presenting on this critical topic. In my opinion, there has never been a time when it has been more crucial for lawyers to demonstrate leadership through civility and professionalism. I am thankful for the leadership our bar has shown on this most important issue. It is the factor that distinguishes our bar and sets it apart. It should be a point of common pride for all of us.

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W H AT I L E A R N E D A B O U T I N C LU S I O N A N D W H Y I T M AT T E R S By: Anita D’Souza

HEARING EACH OTHER As lawyers, we spend our time hearing our clients’ stories, and we tell those stories to advocate for our clients. Inclusion, for me, is the same - hearing our colleagues’ unique stories, and using those experiences to address our systems in the legal profession. So, here’s my story. I was born in India to an entomologist (mother) and a marine engineer (father). When I was about 5, we moved to Iran. When the Iranian revolution happened, we moved to California for several years and eventually settled in Houston when I was 13. I then went to Massachusetts for college (Smith College), and to the “other UT” in Texas for law school. I finished my formal legal education getting an LL.M. from the University of Edinburgh in Scotland. I entered the legal world with a good understanding of the law, but a limited understanding of how the profession operated. I knew no lawyers in the US and didn’t know of any formal mentorship programs. When I graduated law school, I certainly didn’t see any Indian lawyers in law firms or other organizations; and I was only the second Indian I knew to go to law school. I went from law school to Austin city government and then Texas state government, where I spent 20 years of my career - eventually served as the general counsel for three different state agencies and being fortunate to learn the ins and outs of policy making over the 18 years I

worked for the Texas legislature. My career in government was incredibly rewarding. However, I’ve realized along the way that my career to date working for government - was and still is the norm for minority lawyers. A longitudinal study conducted by the ABA and the NALP Foundation for Law Career Research and Education followed lawyers admitted to the bar in 2000 through their mid-career. That study found that, as recently as 2014, at the mid-career level, Black and Hispanic lawyers are more likely to work for government; Asian American lawyers are more likely to work as counsel in businesses; and White lawyers are more likely to be found in law firms. (https://www.abalegalprofile.com/demographics/). The legal profession is defined by stare decisis and inclined towards incremental change - if at all. Change has and continues to happen, from law schools expanding the types of law taught to mentorship programs that help guide new lawyers. All of these are steps towards a more inclusive profession. However, as the study cited above points out, there is still more to be done. To broaden and maintain the momentum for inclusion at all levels of the legal profession, we need to continue to hear each other and advocate for and support our colleagues as we would our clients.

DICTA

May 2022

PRACTICE TIPS By: Mariel S. Cooper

Quist, Fitzpatrick & Jarrard, PLLC

ATTORNEY’S FEES AND THE NEXUS OF TWO TENNESSEE REGULATIONS Surely, I am not alone in this. We all dread the inevitable questions that surface toward the end of an initial meeting. “So now, if I win, the judge will award us the amount demanded plus attorney’s fees, right?” My standard response is to launch into a spiel informing my client that Tennessee follows the American Rule1: unless provided for by contract or law, each party is responsible to bear the cost of its own attorney’s fees incurred on the case. However, one of my favorite scenarios occurs when I can advise the client that she may be able to recover attorney’s fees by application of the nexus of two Tennessee regulations. Moments like these allow attorneys to feel as if our clients will really begin to see the value in hiring us early on in their case. One such situation where a client may be able to recover attorney’s fees by application of a combination of laws is when a Tennessee homeowner hires a contractor that purports to be licensed (and usually bonded and insured as well, although that is the topic of an article for a different day) to do work valued in excess of $25,000.00, and that same unlicensed contractor winds up causing damage to the homeowner’s property. Tennessee law protects the naïve homeowner in this situation through the Tennessee Contractor Licensing Act2 (the “TCLA”). This act requires any person engaged in contracting (or offering to engage in contracting) for any project in this state to be licensed by the Tennessee Board for Licensing Contractors.3 The TCLA broadly defines a contractor to mean any person who undertakes, attempts, or submits a price or a bid to construct or alter in any way a building, highway, road, housing, improvement, or any other construction undertaking for which the total cost is $25,000.00 or more.4 The TCLA not only limits the types of recovery available to unlicensed contractors to actual, documented expenses (as opposed to recovery under the contract or quantum meruit), it also characterizes the contractor’s engagement in contracting while unlicensed as an unfair or deceptive act or practice that affects the conduct of trade or commerce.5 Thus, in these situations the TCLA incorporates the applicability of the Tennessee Consumer Protection Act (the “TCPA”). Under the TCPA, a right of private action is afforded to the homeowner who suffers an ascertainable loss of money or property due to the actions or inactions of the contractor, and the homeowner would then be entitled to an award of reasonable attorney’s fees and costs.6 In the right circumstances, the homeowner could even seek treble damages depending upon whether the contractor willingly or knowingly deceived the homeowner. The topics discussed hereinabove may not be new information to many of you reading this article as only a narrow fact pattern involving a residential homeowner and an unlicensed contractor has been considered. What about situations in which the work being performed by the unlicensed contractor was performed on property that is technically May 2022

considered personal property, such as a mobile home, motor home, floating home, or a houseboat? The broad considerations listed in the TCLA defining what is considered to be a “contractor” thereunder, which was briefly summarized earlier, then become very important.7 The factors and considerations regarding the characterization of the property at issue as a building, housing, or improvement and its primary purpose being residential or for transportation would weigh heavily on the outcome of the applicability of the TCLA if this issue was heard before a court. Our firm recently tried a similar issue on behalf of a client who had hired an unlicensed contractor to do some work on his floating home. One fact that our argument hinged upon in that case was that we effectively draw the distinction for the Court between a floating home and a houseboat: both might be used as a residence for human habitation. But, respectively, one is moored to the shore and is non-navigable as it lacks its own propulsion system, and the other is used for navigation or transportation. The Court in that case ultimately found in our client’s favor on this issue and found that the requirements of the TCLA—that the contractor must be licensed with the Tennessee Board for Licensing Contractors to lawfully perform the type of work at issue—applied to the unlicensed contractor in this case. Thus, through the nexus of the TCLA and the TCPA discussed herein, our client was awarded attorney’s fees in addition to the amount of damages awarded on the merits of the case. Access to the recovery of attorney’s fees could be crucial for a client in the course of pursuing her case. If you come across an issue such as this in your practice where a homeowner hired an unlicensed contractor, do not forget about the possibility of the homeowner recovering attorney’s fees in addition to the amount of damages sustained through the interworking of Tennessee regulations. Also, in a case that might not be so clear as to whether the structure at issue is considered under the TCLA, be sure to analyze the descriptions of structures contained therein against the structure at issue in your case for the possibility that the work being undertaken may require the contractor to be licensed. Such description under the TCLA is quite broad, and even in a case where on the face it might seem that the TCLA does not apply, upon conducting an analysis you may be surprised.

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Pullman Standard, Inc. v. Abex Corp., 693 S.W.2d 336, 338 (Tenn. 1985). Tenn. Code Ann. § 62-6-101, et seq. Tenn. Code Ann. § 62-6-103(a)(1). Tenn. Code Ann. § 62-6-102(4)(A)(i). Tenn. Code Ann. § 62-6-136(b). Tenn. Code Ann. § 47-18-109(e)(1). See supra note 4.

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

MICROSOFT JOURNAL We are always on the lookout for good note-taking apps, so we’re not sure how we didn’t know about the Microsoft Journal app sooner. The app has been around for quite some time, but it was hidden away in Microsoft Garage, a sort of start-up development sandbox where Microsoft works on new app development. Microsoft recently elevated the Journal app from the Garage environment to a fullfledged app in the Microsoft Store; and that is when we downloaded it and took it for a test drive. We were impressed. There is a lot to like about this simple, but feature-rich note-taking application. Unlike OneNote, Microsoft’s super-connected and versatile note application in the Office suite, Journal is really designed for one task, taking notes with a digital pen or stylus. This singular focus makes the app a great tool for notetaking without a lot of distractions (we get distracted easily with software that has a lot of bells and whistles). We downloaded the Journal app for free from the Microsoft Store; and after a brief on-screen tutorial, we were taking notes with a digital pen on our 2-in-1 laptop/tablet hybrid. The interface is simple. You can choose a blank sheet of paper or lined. You can choose what color ink you want and the type of pen width you want to use. All these options are fairly standard on most note-taking apps. The extras in Journal that we learned from the brief tutorial after installation really make the application shine. You can erase a word or block of text simply by scribbling over it. You can make a phrase a header by underlining the text. You can flag a section of your notes that you deem important by drawing a star beside the text. These actions create digital bookmarks that allow you to go back and search or filter your notes based on these categorizations. If you have a Microsoft Office subscription (which we do), you can link to contacts and calendar entries in Outlook within Journal. For example, by selecting a meeting entry from a calendar side panel, you can begin creating a journal (hand-written notes) that are attached to that meeting, which makes it extremely easy to go back and reference the notes for a specific meeting. Journal also allows you to e-mail or copy contents from your handwritten notes directly to another application or to a printout. You can select a block of hand-written text simply by drawing a circle around it with the digital pen; and then the app will convert that handwriting to actual text which you can paste into a Word document, for example. It worked really, really well in our testing. We were able to import PDF documents into a Journal file and then markup the pages with colored ink and digital highlights; however, the markups did not save to the original PDF file. The PDF markups

only exist in the Journal file that contains the imported PDF pages. Of course, we could print those marked-up pages or e-mail them directly from Journal. We still like the ReMarkable 2 tablet that we have reviewed previously as our favorite notetaking device; however, this Microsoft Journal app makes taking notes on our tablet incredibly easy and convenient. Of course, the integration with other Microsoft modules, such as Contacts and Calendar within Outlook, make Journal a very natural way to take and keep notes attached to other important data that we work with. We expect that now Journal is an official app within the Microsoft Store, there will be future updates to the app to enhance functionality even more. We’re sold on it as it is, however.

DICTA

Maven Investigations Specializing in Forensic Financial Investigations Anthony Dominicis, CAMS, EA, PI Maveninv.com

800-660-1508

May 2022

BETTER By: Melissa B. Carrasco

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

LOGISTICS Thomas Mifflin was a businessman and a pacifist. As a fourthgeneration Quaker, his family was well-known in the Philadelphia business community, and the import-export business that Thomas built with his brother was doing quite well, at least until 1774.1 If you know anything about American history, you know that was the year that Parliament passed what came to be known as the Coercive Acts in response to the Boston Tea Party.2 There was the Boston Port Act, authorizing a blockade of Boston Harbor, and the Massachusetts Government Act, appointing a royal governor who had full authority to appoint judges and sheriffs and even jurors—effectively dismantling the Massachusetts colony’s elected government and the impartiality of the judicial system. Then, there was the Act for the Impartial Administration of Justice, which enabled the royal governor to move a trial to another colony or across the ocean to England if he had any concerns about impartiality. Finally, there was the Quartering Act which allowed military officials to require the colonists to quarter their troops at the colonists’ expense.3 Mifflin and the business community of Philadelphia knew that, if it could happen to Boston, it could happen to them. And so, Mifflin entered politics, was elected to the First Continental Congress, and then the Second Continental Congress, and when it appeared that war was inevitable, he resigned from politics and joined the Continental Army.4 He was expelled from the Quaker church.5 Although soldiers were certainly needed, General Washington recognized that Mifflin’s skills were still in business. And so it was that, in 1775—two days after Congress authorized the formation of the Continental Army—Washington appointed Mifflin as the Quartermaster General of the Continental Army.6 That was the day the U.S. Army’s Quartermaster Corps was born. For the past 247 years, the Quartermaster Corps has been responsible for providing logistical support for the Army—identifying, locating, and purchasing uniforms, equipment, food, vehicles, artillery, and other essentials, and then finding a way to transport them across thousands of miles to get them to the troops wherever they may be.7 Lest you think that the members of the Quartermaster Corps have it easy, nothing could be further from the truth. Thirty-three Quartermaster Soldiers have received the Medal of Honor over the years. The first recipient was First Lieutenant Charles J. Murphy of the 38th New York Infantry. During the battle of Bull Run, Murphy “took a rifle and voluntarily fought with his regiment in the ranks; when the regiment was forced back, he voluntarily remained on the field caring for the wounded, and was there taken prisoner.”8 Murphy certainly was not the last. There was Otto Voit, who was awarded the Medal of Honor after he volunteered to hold an exposed position, engaging the enemy in fire for over twenty minutes “diverting fire and attention from another group, filling canteens of water that were desperately needed.”9 Then, there was Eric G. Gibson. He was a Technician 5th Grade—a cook for the 30th Infantry Regiment, India Company.10 He was barely twenty-four years old when he joined the 30th Infantry Regiment which was on its way to where the fighting was fierce in Italy.11 And, while he was on the way, he worked out a deal with the commanding officer: if the company went into battle, he would be allowed to serve as a rifleman with one of the Infantry squads, but when it was time for the B-rations,12 he had to go back to his kitchen duties.13 Noone should have been May 2022

surprised by this. Eric’s middle name, after all, was “Gunnar.”14 Once they landed, Gibson held up his end of the deal. He was placed in charge of the pack train that carried supplies through the mountains of Sicily to the troops on the front lines. He also became one of the Company’s most valuable scouts as he and his fellow Quartermaster Soldiers often encountered enemy forces as they made their way to the front lines with food and supplies.15 And so it was that on January 28, 1944, six months before D-Day, Gibson and the rest of his regiment found themselves facing fierce resistance near Isola Bella, Italy.16 The German forces had launched a counterattack to take back the beachhead, and approximately 70,000 German combat troops were assembled against the approximately 36,000 U.S. soldiers who had landed ashore.17 Around noon that day, Gibson was leading a squad of replacements when they came upon enemy fire. After destroying four enemy positions, they worked to secure the left flank of India Company. Here is what happened next. Placing himself 50 yards in front of his new men, Gibson advanced down the wide stream ditch known as the Fossa Femminamorta, keeping pace with the advance of his company. An enemy soldier allowed Tech. 5th Grade Gibson to come within 20 yards of is concealed position and then opened fire on him with a machine pistol. Despite the stream of automatic fire which barely missed him, Gibson charged the position, firing his submachine gun every few steps. Reaching the position, Gibson fired pointblank at his opponent, killing him. An artillery concentration fell in and around the ditch; the concussion from one shell knocked him flat. As he got to his feet, Gibson was fired on by two soldiers armed with a machine pistol and a rifle from a position only 75 yards distant. Gibson immediately raced toward the foe. Halfway to the position, a machine gun opened fire on him. Bullets came within inches of his body, yet Gibson never paused in his forward movement.18 That is where we will leave twenty-four year old Technician Fifth Grade Gibson for now—under fire outside of Isola Bella, Italy. There is certainly more to this story, but the rest of Gibson’s story and the story of how the Quartermaster Corps has affected my family and probably yours is for next month. For now, as we celebrate Memorial Day, let us remember those whose sacrifice have made things better. 1

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Thomas Mifflin, History, https://history.army.mil/books/revwar/ss/mifflin.htm, last visited Apr. 5, 2022. Caroline Eisenhuth, The Coercive (Intolerable) Acts of 1774, The George Washington University, https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/ article/the-coercive-intolerable-acts-of-1774/#:~:text=The%20four%20acts%20 were%20the,to%20the%20Boston%20Tea%20Party., last visited Apr. 5, 2022. Id. Thomas Mifflin, supra n. 1. Id. U.S. Army, Quartermaster Corps. Quartermaster History, https://quartermaster. army.mil/history/#:~:text=The%20Quartermaster%20Corps%20traces%20 its,support%20to%20the%20new%20Army, last visited Apr. 5, 2022.

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May 2022

HELLO MY NAME IS By: Jennifer Franklyn

Leitner Williams Dooley Napolitan, PLLC

ISAAC WESTLING This month’s “Hello, My Name Is…” q-and-a column features Isaac Westling, an Associate Attorney at the Law Offices of James A. H. Bell. Isaac practices primarily criminal defense and personal injury law, and he is also a Rule 31 mediator. Prior to law school, Isaac attended Florida Southwestern State College, where he majored in Public Administration. Although he is a recent addition to the bar, as a May 2021 graduate of Lincoln Memorial University Duncan School of Law, Isaac has already become involved in the KBA and is a Co-Chair of the Barrister’s Mock Trial Committee. I hope you enjoy getting to know Isaac, a rising star in the KBA. Where are you from? I am from everywhere. Although I was born in Grand Forks, North Dakota, I moved around throughout my childhood. My father was an ambitious entrepreneur whose ventures led our family from North Dakota, Minnesota, Wyoming, Florida, Tennessee, and back again. When I finally started high school in Cape Coral, Florida, I had attended eleven different schools. Being that I stayed in one spot for high school and undergrad, I usually claim Cape Coral, Florida, as my primary “hometown.” Why did you decide to stay in Knoxville? I have lived and traveled across the United States. Some places have the best beaches, and some have the clearest lakes. America is so beautiful and unique that it was difficult to choose when I wanted to stay and settle down. But I have determined through my life experiences that Knoxville is by far one of the best places to live due to the “people.” My neighbors, my school (Lincoln Memorial Law), and all my colleagues in the legal field all have shown me tremendous love and support. Plus, Knoxville’s weather is the best of both worlds: you do not have the severe winters of North Dakota or the scorching hot summers of Florida. When you were ten years old, what did you want to be when you grow up? When I was ten years old, I wanted to be a smokejumper. A smokejumper is a specially trained firefighter who parachutes from a plane into a remote area to combat wildfires. Why would I want to do this? Because it was adventurous, I could help save people and animals, and make a lot of money doing it. Somehow, instead, I am an attorney. There are similarities though. Some days it feels like I am jumping out of a plane into a fire. Also, I try hard each day to make a positive difference in people’s lives. (I just need to figure out the lots of money part!) Describe a significant work experience prior to becoming a lawyer that impacted your career. After my first year of law school, I was provided the opportunity to work for Tarpy, Cox, Fleishman & Leveille. While there I was able to learn from some great attorneys such as Lynn Tarpy, Jed McKeehan, and John Haines. Through my experiences there, I learned that I wanted to focus on litigation in my legal career. I found that I enjoyed most the process May 2022

and the challenge of litigation. What is the best advice you have ever received? Some of the best advice I was ever given comes from a combination of two similar quotes: “you create your own luck” and “the harder I work, the luckier I get.” I was taught that, through our determination and dedication, we can create a bit of our own luck. What do you like to do in your spare time? In my spare time, I enjoy spending time with my dog (Kira) and hanging out with friends. I enjoy just about anything outdoors. In the warmer months, I love kayaking the local quarries and rivers, hiking the mountains, and shooting sporting clays at the range. In the winter, I like to go to the Sugar and Beech Mountain Resorts to snowboard and an occasional skate around the Market Square ice rink.

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

STRESS Anyone who has ever practiced law knows stress all too well. Stress is almost another word for practicing law. It is everywhere! It’s in that list of phone calls that need to be made. It is in the rush to get to court on time. It is in the brief that is due tomorrow. In short, stress is that everyday feeling of too much to do and too little time to do it. I recall James A.H. Bell once saying, as the firm had taken several big cases in just a few days and another big case was coming in: “Promise them anything, just promise it tomorrow!” How do you deal with stress? There are healthy ways of dealing with stress and not so healthy ways. Exercise is a great way of de-stressing, as is deep breathing or meditation. Alcohol is a great de-stressor, but not a good one, for to reach that level of de-stressing you want will probably take an ever-increasing amount of alcohol. Nature is a wonderful de-stressor for me. And it does not have to be a day in the Smokies. Nature is all around to be enjoyed, whether it is simply being awed by a sunset, taking a short walk in a park, or just sitting and watching the birds. I never think about dealing with stress that I do not think of Lou, who at the time was a middleaged woman who waited tables with me at a local Hot Shoppes. My job in graduate school was as a part-time waiter, but hers was full-time, her occupation. When a

restaurant gets super busy (and they do), orders get stolen by other waiters, waiters yell at the cooks and at each other. Lou would let it build to a crescendo, and then she would head to the breakroom and light a cigarette to take a break from the madness. I was never bold enough to leave my tables unattended for even the time it takes to smoke a cigarette, but I appreciated Lou’s approach to stress: let it go for a few minutes! Lawyers cannot be like Lou and just go sit on the sidelines for a breather. Typically, lawyers have to muster through because our clients depend on it. Yet “mustering through” creates its own level of stress. But we lawyers learn to live with stress and deal with it. I used to say practicing law was like keeping a bunch of balloons in the air, and then grabbing the one that is about to hit the ground. Push that balloon back up in the air and then grab the next one that is about to hit the ground. An attorney who is now retired once remarked: “I had grown so accustomed to stress in my life that I did not realize it until the stress was gone. Then I saw what stress I was under for the first time.” The practice of law and stress are irreconcilably joined. The goal is to find healthy and enjoyable ways of dealing with stress. Good Luck!

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May 2022

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Allison S. Jackson Egerton McAfee

DON’T SAY A WORD? NONDISCLOSURE AGREEMENTS IN THE #METOO WORKPLACE On October 5, 2017, the New York Times published a work of investigative journalism about Harvey Weinstein, one of Hollywood’s most influential producers whose decades of sexual predation were chronicled by Pulitzer Prize-winning authors Jodi Kantor and Megan Twohey.1 The bombshell exposé revealed how, over the span of thirty years, Mr. Weinstein systematically paid off his sexual harassment accusers and shone light on the web of complicity that continuously enabled his wrongful conduct.2 Ten days after the story broke, actress Alyssa Milano posted her now-famous tweet, stating: “If you’ve been sexually harassed or assaulted, write ‘me too’ as a reply to this tweet.”3 Ms. Milano’s tweet was in reference to the Me Too campaign, which was founded by Tarana Burke, a civil rights activist, over a decade earlier to help women of color who were victims of sexual harassment or assault.4 Within weeks of Ms. Milano’s tweet, the hashtag #MeToo was used millions of times in eighty-five different countries and, thereafter, launched an entire social movement with which we’re probably all familiar.5 The #MeToo movement revealed the success with which nondisclosure agreements have been used to silence whistleblowers and sweep incidents of sexual harassment and assault under the proverbial rug. Notably, Mr. Weinstein entered into numerous settlements including nondisclosure agreements with women who had accused him of sexual harassment and assault.6 The notoriously restrictive agreements were a key ingredient in the recipe that enabled Mr. Weinstein and the Weinstein Company to keep these allegations under wraps for so many years.7 In the wake of the public outrage over this scandal (and others which are too numerous to mention in this brief article), the #MeToo movement spurred government and institutions to examine their own practices and propose or mandate reform. In Tennessee, our Legislature enacted a statute that limits sexual harassment nondisclosure agreements in the context of the employment relationship.8 According to Tennessee Code Annotated section 50-1-108, employers are prohibited from requiring a current or prospective employee to execute or renew a nondisclosure agreement regarding sexual harassment in the workplace as a condition of employment.9 The law applies to agreements executed or renewed after May 15, 2018.10 Any current or prospective employee who signs such an agreement in violation of the statute may have a cause of action against the employer for retaliatory discharge pursuant to Tennessee Code Annotated section 50-1-304.11 Relatedly, the federal government disincentivized confidential sexual harassment settlements. Section 13307 of the Tax Cuts & Jobs Act of 2017 provides that no deduction is allowed for settlements subject to nondisclosure agreements which are paid in connection with sexual harassment or abuse.12 The provision applies to amounts paid or incurred after December 22, 2017, and effectively requires employers to choose between nondisclosure and deductibility.13 Thus, Tennessee employers

may opt to omit nondisclosure agreements from such settlements to preserve their federal tax deduction. Moreover, President Biden recently signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which amends the Federal Arbitration Act to allow employees subject to pre-dispute mandatory arbitration agreements to pursue their claims related to sexual harassment or assault in court, giving workers a choice of how to pursue their cases after sexual harassment or assault has occurred.14 Finally, the ABA House of Delegates passed a series of resolutions urging a variety of changes by employers in the legal profession. Resolution 300 urges legal employers not to require mandatory arbitration of sexual harassment claims, and Resolution 107B requests that legal employers not require mandatory arbitration of unlawful discrimination, harassment, or retaliation claims “based upon race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity or expression, marital status, genetic information or status as a victim of domestic or sexual violence.”15 These reforms only scratch the surface of the multitude of changes that have occurred in connection with the #MeToo movement. In many instances, the use of nondisclosure agreements is largely unproblematic. Certainly, they provide necessary protections for trade secrets and other sensitive proprietary and confidential information. But, in the context of sexual harassment and assault, such agreements undermine the significant public interest in knowing about and preventing workplace sexual harassment and assault. Employers must now assess the risk associated with allegations of sexual harassment and assault not only from potential lawsuits, which employers likely used to be comfortable managing, but also from a variety of unpredictable, external sources. Employers ought to pay attention to the legal landscape and public opinion concerning the longstanding problem of sexual harassment in the workplace. Preventing harassment will avoid both potential liability and scandal, and an ounce of prevention is worth a pound of cure. Employers should also review any nondisclosure agreements in effect in the workplace, along with policies or procedures concerning sexual harassment. 1

2 3

Jodi Kantor & Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades, N.Y. Times, (Oct. 5, 2017), https://www.nytimes. com/2017/10/05/us/harvey-weinstein-harassment-allegations.html. Id. Alyssa Milano (@Alyssa_Milanao), TWITTER (Oct. 15, 2017, 1:21 p.m.), https:// twitter.com/alyssa_milano/status/919659438700670976?lang=en [http:// web.archive.org/web/20210326212124/https://twitter.com/alyssa_milano/ status/919659438700670976?lang=en]. See Tarana Burke, #MeToo Was Started for black and brown women and girls. They’re still being ignored., WASH. POST (Nov. 9, 2017), https://www. washingtonpost.com/news/post-nation/wp/2017/11/09/the-waitress-who-worksin-the-diner-needs-to-know-that-the-issue-of-sexual-harassment-is-about-her-

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About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Caitlyn Elam at 546-4646. May 2022

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AROUND THE BAR By: Cathy Shuck

East Tennessee Children’s Hospital

CHAIR CHAT The KBA has 16 committees and 12 sections. Each one is hard at work to provide KBA members resources, support, and meaningful opportunities to further their practice. We asked some of the Chairs to share background and other information about their committees and sections; the first installment is below.1 We hope you enjoy these “Chair Chats” and that they inspire you to join a new committee or section this year. Corporate Counsel Section Chairs Marcia Kilby and David Headrick have co-Chaired this section for twelve years. Marcia is Chief Legal Officer at DeRoyal Industries, Inc. and Dave is with KCI Technologies, Inc. DICTA: Who should join the Corporate Counsel section? Dave and Marcia: Attorneys that work directly for companies and the private practice attorneys who want their business. What is something that people might not know about the section, but should? Marcia: We truly strive to offer programming that is meaningful to in-house counsel. Dave: Once you are on the list, you will forevermore get invitations to all of our meetings and seminars, plus our semi-annual publication Consigliere. How has the pandemic affected the section? Obviously, all of our meetings went virtual for a couple of years, which was quite an adjustment for the section. What events or other projects are coming up? We have co-sponsored one CLE event this year and would like to do another one-hour event. However, our signature event is our annual halfday Corporate Updates and Ethics CLE, which will be held on August 24 this year. We are currently also working on the next edition of our publication. If the section were a household appliance, what would it be and why? Dave: A toaster oven. We don’t practice all of the areas of law that most private-practice attorneys do, but we still have to burn hot! Marcia: Or a blender. We take attorneys from different in-house backgrounds to create a blend of expertise and camaraderie that results in a smoothly operating end product. If the section could do anything at all, what would it be? Dave: A post-COVID party! Marcia: Or maybe destination CLE that includes a post-COVID party. Diversity in the Profession Committee: Akram Faizer, a Professor at Lincoln Memorial University Law School, has been a co-Chair of this Committee since 2018. Christina Magrans, who works for the City of Knoxville, has been a member for her entire legal career and became a co-Chair in 2022. DICTA: Who should join the Diversity in the Profession Committee? Akram: Everyone should join the Diversity in the Profession Committee. I think there is a mistaken perception that it is only for

people from minority backgrounds or perspectives. Christina and I believe that everyone is welcome and should consider joining. Christina: I agree. Everyone should join this committee. It is not only for attorneys in minority categories. It is also for people who want to be allies to those in minority categories and to promote their work and employers in a way that benefits everyone. What is something that people might not know about your committee, but should? Akram: It is a very active committee and has seen increased interest and membership since the COVID pandemic. Its members are truly wonderful lawyers in all areas of practice and experience who are openminded, civic-minded and work very hard to make our profession more inclusive and therefore effective. Christina: I think it is important for people to note that diversity will only become a more important and pressing issue in the future. Even if you think diversity and inclusion does not impact your practice, you are mistaken. Companies are paying more attention to diversity when choosing firms to hire. Minority attorneys provide not only a more inclusive perspective to litigation and to their employers, but they also bring in new client markets. How has the pandemic affected the Committee? Akram: The pandemic truly led to increased participation for two major reasons. The first is because Zoom enabled for greater participation by a larger cross-section of the bar. The second is because the political and socioeconomic injustices during the pandemic, including the murder of George Floyd, the demotic characterization of BLM protesters as rioters and the attempted insurrection at the Capitol, highlighted issues of racial injustice for many members. Christina: I would also say that it has resulted in our thinking more deliberately about ways to engage the community in terms of events, advertisements, and recruitment. What events or other projects are coming up? We are currently working on scheduling our October event and Buddy Match program. We are also seeking to resume our Difficult Conversations series on racial issues. If the section were a household appliance, what would it be and why? An energy efficient oven. It truly enables you to prepare more delicious and healthy foods than a microwave or eating out, but it requires a bit more intentionality. If the section could do anything at all, what would it be? Akram: I think it would be for us to be able to convene a caucus of American lawyers from all backgrounds, led by experts in the profession, to openly discuss the best way to effectuate a society that is socioeconomically and professionally representative of its constituent members. Christina: I think that we would love to see more minority attorneys being hired in the Knoxville area and – more importantly – that those minority attorneys stay on at Knoxville firms. Akram: Christina and I are truly are honored to be co-chairs of this committee. Our hope is to make incremental steps toward making our bar more inclusive and welcoming. 1

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Responses have been edited slightly for length and clarity.

May 2022

L E G A L U P DAT E By: Campbell D. Cox

Appalachian Underwriters, Inc. & Affiliated Entities

TELEPHONE GAME:

THE TENNESSEE COURT OF APPEALS FINDS AN INSURED’S RELIANCE ON INSURANCE AGENT’S STATEMENT NOT REASONABLE OR JUSTIFIABLE In Hope King v. Stephen Bradley, a March 2022 decision, the Tennessee Court of Appeals addressed a claim of negligent misrepresentation in the context of an insured/insurance agent relationship alongside an analysis of common principles of the law of agency.1 In 2015, Rutledge Pike Electric (“Rutledge Pike”), a commercial electric contractor owned by the Appellant’s husband, was attempting to secure work on a large project located in Jacksonville, Florida.2 As a condition of the project, Rutledge Pike needed to obtain performance and payment bonds.3 In order to finalize the bond, the Appellant and her husband were required to sign a General Agreement of Indemnity (“GAI”) which secured Rutledge Pike’s bond with their personal assets.4 Ultimately, Rutledge Pike was unable to complete the Jacksonville project and the company which wrote the bond, SureTec Insurance Company, began seizing on Appellant and her husband’s properties.5 According to the Appellant, at the time that the bond documents were signed, the following occurred: (1) Appellant’s husband met with their insurance agent, Stephen Bradley to execute the bond documents, however Appellant herself was not present to sign,6 (2) Appellant’s husband called her to obtain permission to sign on her behalf,7 (3) on that call, Appellant stated “Garry I don’t care what you sign as long as we’re not putting up our personal stuff, I don’t care,”8 (4) Appellant’s husband then asked Mr. Bradley, “Are you sure we’re not putting up our stuff ?” to which Mr. Bradley responded “Nope,”9 (5) Appellant’s husband, without reading the bond documents, signed it on behalf of himself, Appellant, and Rutledge Pike.10 Appellant initially filed a suit in January 2017 against both Mr. Bradley and the notary who executed the documents.11 After a history of voluntary dismissals, transfers, and case consolidations, Mr. Bradley filed a motion for summary judgment in August 2020.12 Knox County Chancellor Michael W. Moyers granted the motion at the hearing via an oral ruling (which the Court of Appeals cites in full).13 In sum, Chancellor Moyers held that Appellant had made her husband her agent and therefore was also charged with the knowledge that was available to him (mainly, the ability to read the GAI itself ), which made reliance on Mr. Bradley’s statement unreasonable.14 Although issues of timeliness (and even a parol evidence argument by Mr. Bradley15) were raised on appeal, the heart of the issue centered around if a genuine issue of material fact remained as to the fifth essential element of a negligent misrepresentation claim, justifiable reliance.16 Stating that although justifiable reliance is “generally a question of fact inappropriate for summary judgment,” the Court of Appeals noted that it had granted summary judgment on the issues in multiple prior cases.17 Considering the eight factors previously laid out by the Court of Appeals to use in determining if reliance on a misrepresentation was reasonable, the Court of Appeals placed “heightened significance” on the third and sixth factors in this case, being: (3) the availability of relevant information, and (6) the opportunity to discover the fraud.18 In this case, there was no evidence that the Appellant or her husband were discouraged or prevented from reading the GAI, and they were not hindered from speaking with an attorney for clarification.19 The May 2022

unrefuted testimony at the trial court level was that the husband simply did not read the GAI.20 The Court of Appeals agreed with the trial court’s holding that the specifics of the agency relationship between the Appellant and her husband had no effect on the justifiable reliance argument, as Appellant had given him express authority to execute the contract on her behalf––therefore his reliance is imputed to her.21 The Court of Appeals then briefly addressed the first factor of justifiable reliance, business experience and sophistication of the party, noting that Appellant had been a real estate agent for over ten years, and had signed a similarly worded GAI in 2012.22 Upholding the trial court’s ruling, the Court of Appeals held that Appellant and her husband had acted with “blind faith” on Mr. Bradley’s statements regarding their personal assets, “despite the fact that the means of informing themselves of the truth were at hand.”23 Appellant’s husband as her agent had the “motivation and means” to obtain the information needed to discover the discrepancy between Mr. Bradley’s statement and the terms of the GAI and therefore his reliance was not reasonable or justifiable.24 Finally, the Court of Appeals disposed of Appellant’s additional argument that the trial court erred in dismissing the entire action on summary judgment as it ignored her claim of “agent and/or broker negligence” in acquiring and supplying the 2015 GAI and “misrepresenting its terms.”25 In support of this additional argument, Appellant submitted the affidavit of another Knoxville insurance agent, Joshua Witt.26 The Court of Appeals noted that Appellant had, in part, essentially restated her negligent misrepresentation claim, but also noted that there is no specific Tennessee law preventing an insurance agent from procuring a policy that their customer requests.27 The Court of Appeals held that Appellant had not articulated her claim of “agent and/ or broker negligence” in a manner sufficient enough to enable to court to assess it apart from her claim of negligent misrepresentation, and therefore dismissed Appellant’s remaining argument.28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

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King v. Bradley, No. E2021-00261-COA-R3-CV, LEXIS 87 (Tenn. Ct. App. Mar. 2022). Id. at *2 Id. Id. Id. at *4 Id. at *3 Id. Id. at *4 Id. Id. Id. at *4-5 Id. at *6 See id. at *7-8 Id. See id. at n.3 (citing Brungard v. Caprice Records, Inc., 609 S.W.2d 585 (Tenn. Ct. App 1980) (holding that that the Court of Appeals had previously held that the parol evidence rule has no application to a case involving a fraudulent misrepresentation which induces the contract), and Stamp v. Honest Abe Log Homes, Inc., 804 S.W.2d 455 (Tenn. Ct. App. 1990) (holding that a claim for misrepresentation “sounded in tort” rather than contract, and therefore the parol evidence rule should have no application).

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CONGRESS ACTS TO REIGN IN MANDATORY ARBITRATION I remind my first-year Contracts & Sales students at LMU just how ubiquitous contracts are in our daily lives. We all enter into contracts every day, often without even knowing it. Over the last few decades, an increasing number of those contracts have required the parties to arbitrate, rather than litigate, any claims arising out of the agreement. The rise of mandatory arbitration has been fueled by a generation of U.S. Supreme Court decisions reading the Federal Arbitration Act (FAA) expansively. This trend towards forced arbitration has, for the most part, been left unchecked by Congress, which has the power to amend the FAA as it sees fit. It is possible that the tide may be turning. In February, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act.1 The bill passed by broad bipartisan margins and was signed quickly into law by President Biden, becoming effective on March 3, 2022. The new law is designed to prevent employers from using mandatory arbitration provisions to silence victims of sexual assault or harassment in the workplace and beyond. While the Act certainly is a victory for the #MeToo Movement, it may have even broader repercussions. An Era of Expansion for Mandatory Arbitration Congress passed the FAA in 1925 to “place arbitration agreements on an equal footing with other contracts . . . and enforce them according to their terms.”2 Specifically, the FAA states that a contractual provision to settle disputes arising out of the contract via arbitration “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”3 No mind that the FAA was passed in response to courts’ open hostility to commercial arbitration agreements negotiated by parties with equal bargaining power. The Supreme Court has used its expansive view of the FAA to uphold the use of mandatory arbitration provisions in a variety of contexts unanticipated by Congress in 1925. In 2011, the Court upheld the inclusion of mandatory arbitration provisions in contracts for consumer and financial services in AT&T Mobility LLC v. Concepcion. The Court struck down a California rule4 that boilerplate class-action waivers in certain types of consumer adhesion contracts were unconscionable and concluded that “[r]equiring the availability of classwide arbitration interferes with fundamental

attributes of arbitration and thus creates a scheme inconsistent with the FAA.”5 A series of subsequent decisions have reinforced the basic principles set forth in Concepcion in a variety of areas, including consumer agreements (again),6 merchant credit card agreements,7 and nursing home agreements.8 In 2018, the Court decided Epic Systems v. Lewis, which upheld mandatory arbitration and class-action waivers in employment agreements.9 Notably, the percentage of private-sector, non-union employees in the United States who were subject to mandatory arbitration of employment disputes increased from two percent in the early 1990s to about 25 percent in the early 2000s to over 55 percent in 2017.10 Epic rejected a challenge by employees to an email their employer had sent requiring them to bring wage-and-hour claims “only through individual arbitration” and to waive, as a condition of their continued employment, “any right to collective action.”11 Ever-resilient, the plaintiff ’s bar has been adjusting to the increased use of mandatory arbitration. For example, a June 2021 Wall Street Journal article observed that Amazon had changed its terms of service to allow customers to file lawsuits after 75,000 individual arbitration demands were filed by users of its Amazon Echo device (a/k/a “Alexa”).12 Remarked the plaintiff ’s attorney whose firm filed the majority of the arbitration claims: “Companies thought they were getting out of liability altogether. Now they’re seeing exactly what they bargained for, and they don’t like it.”13 Motivated by the #MeToo Movement, Congress Acts The success against Amazon notwithstanding, most plaintiffs do not have the resources to file mass arbitration claims. Given the continued lean of the U.S. Supreme Court towards business interests, the only real way to stem the tide of mass arbitration is for Congress to amend the FAA. Such a move seemed unlikely, given the politically toxic and divisive environment in Washington. But the incentive to act finally came with rise of the #MeToo Movement. The 2016 sexual harassment suit filed by former Fox News host Gretchen Carlson against CEO Roger Ailes, along with similar claims against other high-profile defendants, initiated a national conversation about the use of mandatory arbitration clauses and non-disclosure agreements (NDAs)

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May 2022

COVER STORY By: Matthew R. Lyon

Lincoln Memorial University Duncan School of Law

by employers. Business interests that had successfully quashed previous efforts to amend the FAA found their arguments much trickier when arbitration clauses were being used to silence employees who had been the victims of sexual abuse in the workplace.14 In addition, facing scrutiny from employees and the public, some private employers began exempting employee claims of sexual abuse from existing arbitration requirements.15 Co-sponsored by Senators Kirsten Gillibrand (D-NY) and Lindsey Graham (R-SC), the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act adds the following language to the FAA: [A]t the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.16 There are a few important points to highlight in this new law, as well as at least one open question, the answer to which will significantly impact the law’s reach and scope. First, the law excludes sexual assault or sexual harassment disputes from existing arbitration agreements or class action waivers. It is immaterial when the mandatory arbitration agreement was executed; so long as the sexual harassment or sexual assault dispute is brought after March 3, 2022, the plaintiff(s) may choose litigation over arbitration.17 Second, the Act relies on existing federal, state, or tribal law for the definition of “sexual assault” or “sexual harassment.” Both the type of activity and size of employer that qualify under the statute may differ depending on the jurisdiction in which the case is filed.18 Third, the Act’s language technically is not limited to the employer-employee context. While that will be the most common circumstance in which a plaintiff in a sexual assault or harassment suit would otherwise be bound by a mandatory arbitration clause, there could be others, such as the relationship between a customer and a provider of services.19 Finally, a primary issue left unresolved is what the Act means by the undefined term “with respect to a case.” Sexual assault and harassment claims are not always brought in a vacuum; rather, they often are brought together with wage-and-hour or employment discrimination claims. The use of the word “case” rather than “claim” will encourage employee plaintiffs to add sexual assault and harassment claims to their cases in hopes of having the entire case litigated rather than sent to arbitration.20 It remains to be seen whether courts will consider the different claims together as one case or split out the sexual assault and harassment claims, allowing those claims to be litigated while sending the other employee claims to arbitration. The statutory text – the use of “case” instead of “claim” – supports the former, while courts’ recent treatment of mandatory arbitration clauses, as well as some legislative history of the Act, suggest the latter.21 Next Steps We do not know whether the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act is a harbinger of further legislative action against mandatory arbitration or a one-off inspired by the #MeToo Movement. The Biden administration and legislatures in blue states may be interested in further curbing the practice of mandatory arbitration.22 But the 2022 midterm elections are looming, and a shift in the majority in either house of Congress to the Republicans would reduce the likelihood of further action. Moreover, the preemption doctrine leaves state laws opposing mandatory arbitration vulnerable to being overturned by courts applying the Supreme Court’s FAA precedents. One such state law is currently in front of the Supreme Court. California’s Private Attorneys General Act (PAGA) permits workers who are contractually barred from litigating claims against their employer to May 2022

“stand in the shoes” of the state for violations of the state’s labor and employment laws.23 Because the law allows employees to litigate claims that would be contractually barred if brought in their own name after Epic, some California employers have begun to include language requiring employees to waive PAGA claims as well. With employees having successfully challenged such waivers in California’s courts, the Supreme Court has taken a case, Viking River Cruises v. Moriana,24 to determine whether such a waiver should be enforced under the FAA. Oral arguments in the case were heard on March 30, and if the justices’ questions are any indication, the Court is likely to enforce its precedents and hold that PAGA provides no path for employees to avoid mandatory arbitration.25 The confirmation of Justice Ketanji Brown Jackson, while historic, is highly unlikely to change the Court’s conservative lean generally, or its mandatory arbitration jurisprudence specifically. Therefore, opponents of forced arbitration should seek reform through Congress rather than through the courts. The #MeToo movement has provided a blueprint for doing just that. 1 2 3 4 5 6 7 8 9 10

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Public Law 117-90 (Mar. 3, 2022). AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011). Id. (quoting 9 U.S.C. § 2). See Discover Bank v. Superior Court, 113 P.3d 1100 (Cal. 2005). Concepcion, 563 U.S. at 344. DIRECTV, Inc. v. Imburgia, 577 U.S. 47 (2015). American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013). Kindred Nursing Centers Ltd. P’ship v. Clark, 137 S. Ct. 1421 (2017). 138 S. Ct. 1612 (2018). Alexander J.S. Colvin, The Growing Use of Mandatory Arbitration, Economic Policy Institute (Sept. 27, 2017), available at https://www.epi.org/publication/the-growinguse-of-mandatory-arbitration/. Lewis v. Epic Sys. Corp., 823 F.3d 1147, 1151 (7th Cir. 2016). Sara Randazzo, Amazon Faced 75,000 Arbitration Demands. Now It Says: Fine, Sue Us, WALL STREET JOURNAL (June 1, 2021), available at https://www.wsj. com/articles/amazon-faced-75-000-arbitration-demands-now-it-says-fine-sueus-11622547000. Id. See David Horton, The Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, 132 YALE L.J. FORUM ___, ___ (forthcoming 2022), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4051733. Id.; see also Jean R. Sternlight, Mandatory Arbitration Stymies Progress Towards Justice in Employment Law: Where to, #Metoo?, 54 HARV. C.R.-C.L. L. REV. 155, 204 (2019); Emilie Shumway, After the #MeToo Bill, is the Future of Mandatory Arbitration in Question? (Feb. 22, 2022), available at https://www.hrdive.com/news/ after-the-metoo-bill-is-the-future-of-mandatory-arbitration-in-question/619229/ (noting that Google’s shift away from forced arbitration of such claims came after a planned walkout by 20,000 of its employees). Pub. L. 117-90 (codified at 9 U.S.C. § 402(a)). Barbara Hoey & Sebastian P. Clarkin, The End of Arbitration? What the “Me Too” Law Means for the Future of Employment Arbitration (Mar. 4, 2022), available at https://www.labordaysblog.com/2022/03/the-end-of-arbitration-what-the-metoo-law-means-for-the-future-of-employment-arbitration/. There is some question whether plaintiffs with qualifying suits that were already in arbitration on March 3 may now elect litigation. Id. Id. Id. Robert Iafolla & Paige Smith, Court Battles Loom Over #MeToo Arbitration Bill’s Unclear Scope, BLOOMBERG LAW NEWS (Feb. 18, 2022). Id.; see also Erin Webb, ANALYSIS: #MeToo Law May Keep Entire “Case” in Court, BLOOMBERG LAW NEWS (Mar. 21, 2022). Shumway, supra note 15. See Mia Farber & Shannon Bettis Nakabayashi, Ask A Litigator: What Do Employers Need to Know About PAGA? (Feb. 8, 2022), available at https://www. californiaworkplacelawblog.com/2022/02/articles/paga/ask-a-litigator-what-doemployers-need-to-know-about-paga/. No. 20-1753. Ronald Mann, Conservative Justices Seem Again Poised to Reverse California Courts on Arbitration Issue (Apr. 1, 2022), available at https://www.scotusblog. com/2022/04/conservative-justices-seem-again-poised-to-reverse-californiacourts-on-arbitration-issue/.

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

HOLE LOT OF FAKING GOING ON It has been a bit of a slow news cycle in the News of the Legally Weird, unless you want to ponder what causes of action Chris Rock may have against Will Smith and/or the Academy (Did you hear what happened at the Oscars?) or what questions Donald Trump may be asked in his deposition in the lawsuit filed by Eddy Grant for his alleged unauthorized use of “Electric Avenue” in a campaign ad in 2020 (Oh no!). So, today we are throwing it back to 2009, when Florida attorney Bill Bone was so tired of his adversary Michael Robb’s trial antics that he filed a Motion to Compel Defense Counsel to Wear Appropriate Shoes at Trial. The parties were scheduled to go to trial over a 2002 motor vehicle accident, and Mr. Bone was trying to get ahead of Mr. Robb and have the court rule before it was too late, lest the jurors see the compromised shoes. It is like a motion in limine, but for wardrobe choices instead of evidence! Some excerpts from the motion: • It is well known in the legal community that Michael Robb, Esquire wears shoes with holes in the soles when he is in trial. • Upon reasonable belief, Plaintiff believes that Mr. Robb wears these shoes as a ruse to impress the jury and make them believe that Mr. Robb is humble and simple without sophistication.1 • Throughout the discovery of this case, Mr. Robb’s clear strategy has been to attack the credibility of the Plaintiff and his counsel by suggesting that Plaintiff is faking his injuries and exaggerating his claims and demanding more compensation then (sic) he deserves because Plaintiff is greedy. • Part of this strategy is to present Mr. Robb and his client as modest individuals who are so frugal that Mr. Robb has to wear shoes with holes in the soles. Mr. Robb is

known to stand at sidebar with one foot crossed casually beside the other so that the holes in his shoes are readily apparent to the jury who are intently watching all counsel and the Court at that moment. • Then, during an argument and throughout the case Mr. Robb throws out statements like “I’m just a simple lawyer” with the obvious suggestion that Plaintiff ’s counsel and the Plaintiff are not as sincere and down to earth as Mr. Robb. The court denied the motion in haberdashery, and the trial proceeded. The jurors were, of course, instructed not to read any outside information about the case. The Palm Beach Post published a column about the motion, which one of the jurors read and then shared with the other jurors. The judge found out about the juror misconduct and felt compelled to declare a mistrial, even though the jurors denied that it had influenced them in any way. However, the judge waited until the jurors deliberated and reached a decision before he told them about the mistrial, resulting in an “advisory verdict” only. The plaintiff learned that the advisory award was $2.2 million. Three months later, they tried the case again. Mr. Robb wore the same black tasseled Cole Haan loafers (with a two-inch round hole in the sole) but had witnesses appear in person instead of on video, as they had in the first trial. The shoes were able to convince the jury that the plaintiff ’s injuries were pre-existing, and as such, the plaintiff received nothing. Perhaps the jury found some holes in the plaintiff ’s story, but the more likely answer is due to Mr. Robb’s membership in a very exclusive Sole Society, with his best friends Cinderella and Dorothy Gale.

B E T T E R , continued from page 9 7 8

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Holes in the soles? Shoes as a ruse? Mr. Bone was practically daring Mr. Robb to file a Motion for Injunction against using Poetry in Advocacy.

M ANAGEMENT COUNSEL , continued from page 13

U.S. Army, supra n. 6. Quartermaster Foundation, Quartermaster Medal of Honor Recipients (Apr. 10, 2017), https://www.quartermasterfoundation.org/article/quartermaster-medal-ofhonor-recipients, last visited Apr. 8, 2022. Id. Dr. Steven E. Anders, Cook Under Fire, Quartermaster Professional Bulletin (Spring 1998), available at http://www.seabeecook.com/cooks/army/gibson.htm. Id.; see also Congressional Medal of Honor Society, Stories of Sacrifice, Eric G. Gibson, https://www.cmohs.org/recipients/eric-g-gibson, last visited Apr. 9, 2022. B rations are meals prepared in the field kitchen, usually from canned or other preserved foods. These are distinguished from A rations, which are usually prepared from fresh and frozen food, and MREs, which are field rations. For more information, visit Military History Fandom at https://military-history.fandom. com/wiki/B-Ration#:~:text=B%20ration%20(or%20Type%20B,adequate%20 refrigeration%20or%20freezer%20facilities. Anders, supra n. 10. Congressional Medal of Honor Society, supra n. 11 Anders, supra n. 10. Id. Army History, Anzio 1944, available at https://history.army.mil/brochures/ anzio/72-19.htm. Congressional Medal of Honor Society, supra n. 11

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too/?variant=15bc93f5a1ccbb65. See Catherine Powell, How #MeToo Has Spread like Wildfire Around the World, Newsweek (Dec. 15, 2017), https://www.newsweek.com/how-metoo-has-spreadwildfire-around-world-749171. See Kantor & Twohey, supra note 1. See id. See Tenn. Code Ann. § 50-1-108. Id. Id. See id. at § 50-1-304. See 26 U.S. Code § 162(q). Internal Revenue Service, Certain payments related to sexual harassment and sexual abuse (2021), https://www.irs.gov/newsroom/certain-payments-related-to-sexualharassment-and-sexual-abuse#:~:text=For%20amounts%20paid%20or%20 incurred,subject%20to%20a%20nondisclosure%20agreement. Public Law 117-90 (Mar. 3, 2022); see also Emily T. Patajo, President Biden Signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, The National Law Review, (Mar. 8, 2022), https://www.natlawreview.com/article/ president-biden-signed-ending-forced-arbitration-sexual-assault-and-sexual. See ABA House of Delegates, Resolution 300 (2018), https://www.americanbar. org/content/dam/aba/images/abanews/2018-AM-Resolutions/300.pdf; Amanda Robert, ABA House urges legal employers not to require mandatory arbitration in an expanded variety of claims, ABA Journal, (Jan. 28, 2019), https://www.abajournal. com/news/article/resolution-107b.

May 2022

SCHOOLED IN ETHICS By: Alex B. Long

Williford Gragg Distinguished Professor of Law University of Tennessee College of Law

TOP TEN LEGAL ETHICS ISSUES I WISH THE BPR WOULD ADDRESS IN AN ETHICS OPINION April 15, 2019. That’s the last time the Tennessee Board of Professional Responsibility published a formal ethics opinion. Can you think of anything important that has occurred in the interim? Anything that might impact how lawyers practice law? I can think of a few. What’s more, I can think of at least ten legal ethics issues that are either more relevant today than they were three years ago or that are at least interesting or generating attention in other jurisdictions. (1) Am I engaged in the unauthorized practice of law if I’m licensed only in Tennessee but advising clients from Georgia?: ABA Formal Opinion 495 addressed this situation as have a few other state ethics opinions. These opinions have concluded that as long as lawyers in this situation do not “hold themselves out as being licensed to practice in the local jurisdiction, do not advertise or otherwise hold out as having an office in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction,” they are not engaged in the unauthorized practice of law. But it still might be nice to get some reassurance from the BPR on that point, particularly in light of the increased amount of working from home and telecommuting lawyers have been doing over the past two years. (2) Who is going to file that motion for my client when I’m dead and buried? COVID-19 made plenty of us consider our own mortality. For solo practitioners, the pandemic could serve as a reminder about one’s ethical obligation under Rule 1.3 to plan for one’s death or disability. A comment to ABA Model Rule 1.3 says that the duty of diligence includes such a duty. Lots of other states recognize such a duty. Tennessee’s version of Rule 1.3 doesn’t contain this same comment. Does such an obligation exist? (3) What’s the deal with this “Internet” I hear so much about? Once again, the pandemic required many lawyers to improve their overall technological proficiency. It’s been a few years since the Tennessee Supreme Court added language to a comment to the rule regarding the duty of competence explaining that the duty requires lawyers to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” TRPC R. 1.1 cmt. 8. Given the myriad of potential ethical issues involving the risks associated with legal technology (like the case of the lawyer who was whispering instructions to his client during a Zoom deposition or the risks of hitting “reply all”), the BPR could provide lawyers with some potentially useful advice. (4) How can my firm comply with Rule 1.10’s screening requirement in the case of a conflict of interest? TRPC Rule 1.10(c) provides that screening may “cure” a law firm’s conflict involving a lawyer’s former client. But Tennessee’s rule takes something of an unusual approach in terms of its requirements. Wouldn’t it be helpful for firms across the state if the BPR clarified what some of those requirements really mean in practice? The California Lawyers Association recently did the same for California

lawyers. See California Lawyers Association Ethics Committee Formal Opinion No. 2021-1, https://calawyers.org/california-lawyersassociation/ethics-committee-formal-opinion-no-2021-1/. (5) Can I enforce this advance waiver I got my client to sign? Comment 22 to TRPC Rule 1.7 discusses the possibility that a lawyer might request that a client agree to waive conflicts that might rise in the future. What language must a prospective conflict waiver contain to be effective? The BPR has not addressed this issue, but the State Bar of Nevada recently did in Formal Opinion 58. https://nvbar.org/forlawyers/ethics-discipline/ethics-opinions/. (6) What are my ethical obligations with regard to a client with diminished capacity? This is a difficult question about which lawyers could definitely use some guidance. The State Bar of California’s Standing Committee on Professional Responsibility and Conduct recently answered the call with a detailed ethics opinion on the subject. https://www.calbar.ca.gov/Portals/0/documents/publicComment/2021/ COPRAC-Formal-Opinion-No.2021-207.pdf (7) What advice can I give my client about smoking or growing marijuana? Legalized marijuana use has become more common over the past few years. Marijuana use is still illegal in Tennessee, although it’s legal in plenty of other states. What advice can a Tennessee lawyer give to a client who wants to use or grow it? There are several ethics opinions on this subject, but none from Tennessee. See, e.g., N.Y. State Bar Association Op. 1225, https://nysba.org/app/uploads/2021/07/Opn1225-with-letterhead.pdf. (8) What can I do if a former client gives me a negative review online? There have been several ethics opinions on this subject over the past three years. See, e.g., Florida Bar Ethics Opinion 21-1, https://www.floridabar. org/etopinions/opinion-21-1/; ABA Formal Opinion 496. Despite this there is still some gray area concerning this general issue. (9) Can I collect a referral fee if I don’t perform any work and don’t assume any responsibility for the matter? Probably not, but the rule regarding fee-splitting - TRPC Rule 1.5(e) – is one that is of practical concern for many lawyers and one that has tripped up many lawyers. Some clear guidance from the BPR would be helpful. See State Bar of New Mexico Formal Ethics Advisory Opinion 2021001, https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/ Ethics/2021/2021-001.pdf ?ver=Z-xfV0tfoCUiQFdtkRtjLw%3d%3d. (10) What are my ethical obligations when it comes to metadata? This issue has been the subject of numerous ethics opinions in other states. A 2021 informal advisory opinion from Missouri provides new guidance on the question. https://news.mobar.org/ethics-thirteen-new-informaladvisory-opinion-summaries-published-in-2021/. This was one of 13 advisory opinions emanating from the Show Me State this past year.

If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. May 2022

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L E G A L U P D A T E , continued from page 15 16 17

MONTHLY MEETING Plan now to attend the Barristers monthly meeting on Wednesday, May 11, starting at 5:15 pm at outdoor patio at The Firefly at the Hilton, located at 501 W. Church Avenue, Knoxville. Social time starts at 5:00 pm. Register by clicking May 11 on the event calendar at www.knoxbar.org. VETERANS LEGAL ADVICE CLINIC The Veterans’ Legal Advice Clinic is a joint project of the KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox Co. Public Defender’s Community Law Office, the UT College of Law, LMU- Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. The next Veterans Legal Clinic will be held in person at the Knoxville Community Law Office on May 11. Sign up at https://www.knoxbar.org/?pg=Upcoming-Legal-Clinics.

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See generally Id. at *9-19. Id. at *16 (citing City State Bank v. Dean Witter Reynolds, Inc., 948 S.W.2d 729 (Tenn. Ct. App. 1996); Rural Devs., LLC v. Tucker, No. M2008-00172-COA-R3-CV (Tenn. Ct. App. Jan. 2009); and Annaco, Inc. v. Corbin, No. 02A01-9804-CH-00111 (Tenn. Ct. App. Dec. 1998)). Id. at *17-18 (citing Goodall v. Akers, No. 2008-01608-COA-R3-CV (Tenn. Ct. App. Mar. 2009)). Id. at *18. Id. Id. Id. Id. at *17 (citing McNeil v. Nofal, 185 S.W.3d 402 (Tenn. Ct. App. 2005)). Id. at *19. Id. Id. at *20. Id. at *19-20. Id. at *21.

VOLUNTEER BREAKFAST COMMITTEE CONTINUES OPERATIONS The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. at the Volunteer Ministry Center, located at 511 N. Broadway, Knoxville, Tennessee. The Barristers Volunteer Breakfast Committee always needs volunteers to serve food or sponsor. The cost is $150 for sponsoring, and we need 4-5 volunteers. If you are unable to fund the breakfast, the Barristers will subsidize the cost of the breakfast. We meet at 6:15 a.m. and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30 a.m. It’s a great way to serve the community! Please contact either Matt Knable at (865) 360-5044 or Laura Wyrick at (865) 297-5511 with any questions and/or about volunteering.

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May 2022

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

ABOUT A SOLDIER It was on D-Day, June 6, 1944, that soldiers with the American 51st Infantry Battalion, 4th Armored Division, fought their way up a portion of the French Coast, code named Utah Beach, under withering German machine gun and artillery fire. Nine months later, on March 25th, 1945, these same soldiers, now battle-hardened and advancing towards Hitler’s Germany, engaged the enemy near St. Avold, France. Several American soldiers died in battle that day, among them, Sergeant Freddy Jarret. He was 25. He was my uncle. As boys, my brothers and I never failed to notice the melancholy in our dad’s voice when he’d say, “Boys, you would have loved your Uncle Freddy. He was the best big brother a guy could have.” Little was known exactly what happened to my dad’s beloved older brother during his final days on earth. 1945 was a hectic time, so the family had to make due with a simple, “Killed in Action” telegram. It was a mystery that haunted my father for decades. “Where was Freddy when he died?” “How did he die?” “What became of his remains?” Question after heart-breaking question was asked by my father, his mother, his father, all of which remained unanswered. That all changed in 1985, when I found myself in uniform, and coincidentally, close to where Uncle Freddy died in service to this great nation. I was a United States Army Armored Cavalry Officer serving along the then W. German/Czechoslovakian Border. A scant two hundred meters from our outpost was an imposing Soviet tank battalion and motorized rifle regiment. We were outnumbered 10-1 but accepted what might have been our fate if hostilities between the two superpowers ever climaxed into war. And I guess it was fate that brought me to the American Military Cemetery in Luxembourg, a landlocked country in Western Europe, bordered by Belgium, France and Germany. My troops and I were in Luxembourg for a Memorial Day Ceremony, and, like so many visitors before us, took the time to stand next to the grave site of the infamous General George S. Patton, Jr., whose wish was to be buried in Luxembourg alongside his 3rd Army comrades. While there, I struck up a conversation with a gentleman who would have a profound effect on the Jarret family. He was a member of the American Battle Monuments Commission, and as such, caretaker of those hallowed grounds. Accustomed to hearing the mournful wail of taps and being peppered with questions from visitors, he casually mentioned that a large part of his day was spent assisting American visitors with locating the final resting place of their fallen loved ones. When I mentioned the plight of my Uncle Freddy, he May 2022

remarked, “Our recordkeeping has gotten a bit more sophisticated since the war, lieutenant. Follow me.” I dutifully fell in behind the gentlemen who brought me into a cavernous room containing large, leather-bound books (I’ve since learned that much of this information is now computerized), containing the names and final resting place of the fallen. Within minutes of telling him my Uncle’s name and place of birth, he looked up at me and smiling said, “Your Uncle is buried in the Lorraine American Military Cemetery in St. Avold, France.” And that was it. In the flash of an instant, what some would call fate, coincidence, or just plain luck, a 40 year old family mystery was solved. After receiving permission from my commander to verify the information, I drove straight through the night, arriving in St. Avold just as the morning mist rose lazily into the sun. And that’s where I found Uncle Freddy, buried among his comrades-in-arms atop a green, peaceful meadow that twice in one century had experienced the ravages of world war. Upon returning to my base in Germany, I called home, inquiring of my mother what she suspicioned would be my father’s reaction to the news. She correctly surmised, “He’d be delighted son.” And he was. Two months later, I flew my parents over to Germany for their first and only visit to Europe. I took my dad to where his brother lay. Mom and I gave him time alone with Freddy. Today we call such experiences “closure.” To dad, it was a chance to finally say goodbye to his beloved big brother. Over 400,000 Americans lost their lives in WWII. Lest we forget!

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WELL READ By: Dillon E. Zinser

Law Office of Joshua S. Reed

CLARENCE GIDEON: THE PRO SE PETITIONER THAT CHANGED THE UNITED STATES In deciding which book I wanted to review for the Well Read column, the case of Gideon v. Wainwright was already on my mind. March 18th marked the fifty-ninth anniversary of the 1963 landmark United States Supreme Court decision, which held that the Constitution requires U.S. states to provide attorneys to criminal defendants who cannot afford counsel. In seeking to observe the anniversary of Gideon, I remembered that the book Gideon’s Trumpet by Anthony Lewis was sitting on a bookshelf in our office. I reasoned to myself that now, more than ever, would be an opportune moment to read and reflect upon the story of Mr. Gideon’s case. Gideon’s Trumpet was published in 1964: a mere year after the Gideon decision came down from the U.S. Supreme Court. For the most part, the book is structured through a chronological narrative, walking the readers through the story of Mr. Gideon’s case from start to finish. The story begins with the U.S. Supreme Court clerks receiving a large envelope containing Mr. Gideon’s pro se, handwritten petition for cert. The narrative proceeds to detail Mr. Gideon’s case being placed on the Supreme Court’s docket, and continues to through the penultimate moments in which the Supreme Court hears oral argument and issues its ruling. There are a few chapters interspersed within the chronological narrative, which explore the existing legal precedents surrounding the right to counsel for indigent defendants prior to the Supreme Court’s decision in Gideon. Before appealing his case to the United States Supreme Court, Clarence Gideon was convicted of burglary by a jury in Florida. Before his trial began, Mr. Gideon requested that the court appoint him an attorney to assist in his defense. Under applicable Florida law in 1961, an indigent defendant was only entitled to appointed counsel if they were charged with a capital offense. The trial judge denied Mr. Gideon’s request, and he was forced to proceed at trial without an attorney. Many excerpts from the transcript of Mr. Gideon’s original trial in Florida are included in the book. These trial transcripts serve as a fascinating, yet disheartening insight into how the American criminal justice operated prior to the Gideon holding. The trial judge in Mr. Gideon’s original case certainly made efforts to ensure he received a fair trial as a pro se defendant. However, there were some basic legal maneuvers during the trial that Mr. Gideon simply could not accomplish on his own, such as cross-examining the State’s witness, or introducing items into evidence. Anyone who has practiced law understands the extreme disadvantage a pro se defendant like Mr. Gideon would face, especially in a criminal trial. While Mr. Gideon did not have the assistance of counsel during his original trial, he was appointed an attorney to assist him in the preparation and submission of his brief to the U.S. Supreme Court. The attorney appointed to assist Mr. Gideon at the U.S. Supreme Court level was Abe Fortas, who later served as an associate justice on the U.S. Supreme Court from 1965 to 1969. A compelling moment in the story is when Abe Fortas is first appointed to represent Mr. Gideon. The reader learns that Abe Fortas was a prominent corporate lawyer at the time of Gideon, and that he had acquired tremendous wealth and status in such

practice. However, while not his primary area of practice, Abe Fortas was moved by Mr. Gideon’s tribulations, and wanted to help better the criminal justice system across the United States. To learn more about his new client, Abe Fortas engages Mr. Gideon in letter correspondence. Many of those letters are included verbatim within the book. After reading the letters that Mr. Gideon wrote to Abe Fortas, I felt a connection with Mr. Gideon, as if I knew him personally. The rapport and the relationship between Mr. Gideon and Abe Fortas is the type of connection I aspire to build with my own clients. Ultimately, the U.S. Supreme Court delivered a unanimous decision in favor of Mr. Gideon. With the new legal holding in place, Mr. Gideon was granted a new trial in Florida, but this time, with the assistance of an attorney. And guess what? With the assistance of an attorney, Mr. Gideon was acquitted of the burglary charge! There are many lessons from Gideon’s Trumpet that attorneys can apply to their own areas of practice. First, attorneys must never forget the importance of taking initiative. What would have happened if Mr. Gideon had not taken the all-important first step of filing his petition to the U.S. Supreme Court? There is no doubt in my mind that the process was intimidating for Mr. Gideon, but he stood strong in his resolve, and made that necessary first step. As a criminal defense attorney myself, I sometimes feel doubt about what I can achieve for a particular defendant in court. But when you’re backed into a corner, all you can do is “file the motion”, and fight for what you believe is right, just like Mr. Gideon did. Second, attorneys must never forget that our positions allow us an extraordinary opportunity to help and serve people in need. In Mr. Gideon’s case, Abe Fortas could have easily ignored the opportunity to help a destitute man accused of burglary. Indeed, Abe Fortas could have been content to simply continue has usual corporate practice, and reap the financial benefits of that work. But Abe Fortas did not do that: he rose to the occasion, and protected the liberty of Mr. Gideon, as well as the liberty of all criminal defendants who came after. Similarly, we as attorneys should embody the same sense of duty in helping those who are otherwise deprived of access to justice.

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May 2022

GRAMMAR GRINCH By: Allison Cyrus-Walker Candidate for J.D., 2022 LMU Duncan School of Law

WRITING UNAPOLOGETICALLY One of the primary critiques I received in my time competing on mock trial and moot court was, “Stop apologizing!” Until I really took a step back and thought about it, I didn’t realize just how much apologizing I was doing or why it was even a problem. In my mind, I thought, “Hey, I’m just being polite!” The problem with apologizing over every little perceived hiccup is that it signals the opposite of ownership and confidence.1 Couching statements in apologetic phrases “send[s] a message to those you’re speaking to that often undermines the validity of your statements or implies that you lack confidence in expressing yourself or asserting your own needs.”2 As advocates, we have to demonstrate confidence and ownership of the causes we argue. Otherwise, it’s just not authentic or persuasive. Once I became more intentional about cutting the apologies out of my oral advocacy, I recognized that my legal writing and professional written communication was equally plagued with apologetic phrases. Do any of these phrases sound familiar? “Sorry to bother…” “Sorry I didn’t get back to you until now…” “Although such evidence is generally inadmissible…” If these phrases are familiar in your written communication, it’s time to shift to writing unapologetically.3 Unapologetic Written Communication Clearly and confidently communicating the needs of our clients (and ourselves) in the professional sphere is critical to our success as attorneys. Utilizing apologizing phrases in our professional written communication is, for many, an ingrained habit based on concepts of good etiquette4. However, the habit of apologizing when it’s not actually merited is a common trait among individuals with low self-esteem, an aversion to conflict, and fear of what others think of them.5 “When someone is afraid of rejection and criticism, they will go out of their way to be accommodating.”6 According to psychologists, preemptive and unnecessary apologizing not only signals a lack of self-confidence but may also undermine your efficacy and credibility.7 As one author notes, the image you project in your professional written communication matters, because it sets the tone for future interactions.8 “If you apologize too often, others will see you as overly accommodating and potentially insecure.”9 Some social psychologists even point out that there are certain personality types that will interpret such power-ceding behavior as permission to treat you poorly in the future.10 Such an imbalance in the power dynamic of our professional relationships certainly doesn’t set the stage for us to be zealous advocates for our clients. Shifting away from over-apologizing in your professional written communication will require intentionality.11 Ask yourself if you’re apologizing out of habit or because of circumstances out of your control.12 If you are, then the apologies are likely unnecessary. “If you couldn’t control the situation or it was a trivial (and honest) mistake, there’s no need to apologize. But if you were really at fault, own up to it.”13 Instead of beginning an email following up on an information request from a colleague or opposing counsel with, “sorry to bother,” try something like this: “I am following up on the requested information regarding… Thank May 2022

you for your timely assistance in the matter!”14 A straightforward request, coupled with a preemptive expression of gratitude, conveys politeness while exhibiting confidence, credibility, and efficacy.15 Unapologetic Legal Writing Recognizing unnecessary apologies in our legal writing is a bit more nuanced. It’s highly doubtful that any of us have flat out used the phrase “I’m sorry,” in any legal document; however, there are other ways that attorneys can end up (perhaps inadvertently) apologizing for their arguments in written advocacy. Let’s think about the example from the introduction, “Although such evidence is generally inadmissible…”. Introducing facts or making assertions using words like “while” and “although” signals to our reader that something is problematic.16 In essence, such phrasing, “insults your audience… ‘undermines your credibility…and demonstrates that you’re not 100% comfortable with what you’re saying.’”17 When confronting contentious or troublesome issues in your legal writing, deal with those issues head on.18 Instead of couching potentially troublesome facts in apologetic terms, be straightforward and confident: “This evidence is admissible because it falls under the exception for…”19 Breaking the habit of unnecessarily apologizing is absolutely an exercise in discipline and intentionality, but one well worth the effort. Not only will you ultimately feel more confident in your work, you may also find yourself rid of quite a bit of unnecessary self-imposed guilt. In the long-run, you’ll find that swapping needless apologies for gracious, confident expression will empower you and those you work with.20

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Jay Rai, Why Over-Apologizing Can Destroy Your Confidence at Work (And How to Avoid It), FORBES COACHES COUNCIL (May 4, 2021, 07:00 AM), https://www.forbes. com/sites/forbescoachescouncil/2021/05/04/why-over-apologizing-can-destroyyour-confidence-at-work-and-how-to-avoid-it/?sh=31757c193166. Id. Id.; Joseph D. Steinfield, Some Thoughts on Good Legal Writing, JOESTEINFIELD. COM, https://joesteinfield.com/2017/08/thoughts-good-legal-writing/. John Hall, Stop Saying, “I’m Sorry.” Research Says It Makes Others Think Less of You—Here’s What Successful People Do Instead, CNBC (Apr. 16, 2019, 10:55 AM), https://www.cnbc.com/2019/04/16/saying-im-sorry-can-make-people-thinkpoorly-of-you-research-heres-what-successful-people-do-instead.html. Rai, supra note 1. Id. Id. Hall, supra note 4. Rai, supra note 1. Hall, supra note 4. Melody Wilding, Stop Over-Apologizing at Work: 3 Steps to Quit Saying Sorry So Much, FORBES WOMEN (Sep. 6, 2016, 07:52 AM), https://www.forbes.com/sites/ melodywilding/2016/09/06/stop-over-apologizing-how-to-quit-saying-sorry-somuch/?sh=74990ad51d12. Id. Id. Priyansha Mistry, Are You Guilty of Over Apologizing at Work? Stop Apologizing, THE HR DIGEST (Jul. 15, 2020), https://www.thehrdigest.com/are-you-guilty-of-overapologizing-at-work/. Id. Steinfield, supra note 3. Id. Id. Id. Mistry, supra note 14.

BARRISTER BITES By: Angelia Morie Nystrom, JD, LLM UT Foundation – Institute of Agriculture

IT STARTED WITH PIGEON… AND ENDED WITH FROG Hugh summed up our recent European vacation by saying, “It started with pigeon and ended with frogs.” Although our recent trip to Belgium and France was intended to be a history tour of sorts including a number of places of significance in World War II, I was determined that I was going to eat my way through Europe. And I did. I have always been of the opinion that you can learn a lot about the history and culture of people by looking at their cuisine. We started our adventure in Belgium. Prior to our trip, I knew that Belgium was famous for its waffles and chocolates, but I didn’t know much else. On the morning we arrived, I could see at least three cafes that featured waffles and three more that featured French fries (or frites, as the Belgians call them) from our hotel window. After flying all night and trying to avoid airplane cuisine, we ventured out to see what the fuss was about. Belgian waffles are not your mama’s Eggos. We went to Maison Dandoy, which is supposed to have the best waffles in Brussels. Dandoy features two types of waffles. The Brussels waffle is crisp and creamy, while the Liege waffle is carmelized and buttered and filled with sugar bits. Both can be topped with powdered sugar, homemade chocolate, whipped cream, caramel and more. We tried both, topped with various items including chocolate, caramel, strawberries, hazelnuts and whipped cream. They were as good as advertised. Through listening to podcasts, I had learned that French fries are not actually French at all—they are Belgian—but got their name from the technique used to cut the potatoes. In Belgium, fries are on every menu, and there are a number of cafes that serve nothing but fries. Belgian fries are double fried—fried once, allowed to cool and fried again. They are delightfully crispy on the outside, yet soft on the inside. Restaurants serve them with mayonnaise for dipping, and we were told that the dead give-away that someone was American was a request for ketchup. As someone who does not like ketchup, I think the Belgians are on to something. Their fries are phenomenal. I had also heard that pigeon is considered a delicacy in the Flemish region of Belgium. When I think of pigeons, I don’t think of fine dining. In fact, I don’t think of anything fine at all. However, I learned that pigeons are quite expensive and that pigeons as a food source was borne out of racing. Although pigeon racing has likely been around for centuries, it became extremely popular in Europe in the 1800’s, and

pigeon racing as we know it today is said to have originated in Belgium in the 1850s. Traditionally, pigeon racing occurred on Saturday night, which led to the Sunday meal. Pigeons that were not successful in their races on Saturday reappeared in what became known as “loser’s stew” on Sunday night. Hugh was determined that we were going to try it. Hugh found a restaurant, The Belgian Pigeon House, in Bruges and asked our tour guide to cancel our reservation at another restaurant so that we could go there. I was a bit skeptical, as (1) I consider pigeons to be dirty birds, and (2) our Brussels-born tour guide had never heard of it (and, frankly, had never tried pigeon). The restaurant is in a building that dates back to the 15th century and that actually served as a pigeon house. Much of the original has been retained including the medieval cellar running underneath. All manner of carrier pigeon-related memorabilia graces this tiny restaurant. Pigeon statues, pigeon drawings, homing pigeon bands, and racing memorabilia decorated the walls and display cabinets located throughout. The menu is small and features just a few main courses, including rabbit stewed in dark beer, North Sea shrimp, and grilled pork. The star attraction, though, is pigeon. The pigeon is slowly cooked in a Josper Brasa oven, which is best described as part oven and part charcoal grill. The roasted pigeon was tender and had a smoky flavor, and it was served with peas, onions and potatoes. Despite my skepticism, the pigeon and all its accompaniments were amazing, and our tour guide said that he will be adding it as a restaurant of choice on his tours. After three days in Belgium, we headed west to France. While in France, we sampled all of the foods you normally associate with France: croissants, crepes, pastries, sea scallops, escargot, foie gras, croque monsieur, and a host of others. We also had something that you may not think of when you think of France: frog. I was curious as to how the French began eating frog… and even more curious as to why we could not get into the frog restaurant that Hugh found on Gastro Obscura on a Friday during Lent. I learned that the French penchant for eating frogs dates back to the 12th century. Apparently, a number of monks (who were revered for their education) were deemed to be overweight. Church authorities prescribed a “no meat” diet as a method to force weight loss. Some cunning monks convinced the church authorities that frogs were not meat but rather more akin to

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fish, which meant that they could eat them. Hence, the tradition of eating frogs was born. Nestled in an alley in the artistic neighborhood of Rue des GrandsAugustins near Notre Dame, Roger La Grenouille is a frog-focused restaurant that opened in 1930 and has been visited by notables such as Pope John XIII and the Queen Mother of England. Pablo Picasso lived nearby and was said to have dined at the restaurant often. The restaurant takes pride in its frog legs and other frog-based dishes, including frog ravioli, frogs stewed in butter and garlic, and the frog burger. Roger’s frog theme does not end at its menu. The building is embellished with frog-based memorabilia, including figurines, posters, door knobs and toilet paper holders. There are old musical instruments, pans, funnels, pots and jugs hanging from the ceiling, all of which create a peculiar—yet cozy— space for casual dining. As an appetizer, we ordered a large plate of frog legs with three

dipping sauces for the table. Hugh ordered the frogs stewed in butter and garlic, Trace ordered a frog burger, and I (unsure as to whether I could actually eat Kermit) ordered fish. When the frog legs arrived, I was skeptical—but hungry— so I tried them. They were absolutely amazing. When the entrees arrived, Hugh and Trace raved about their frog dishes. My fish was quite tasty, but I really wanted frog. While everyone else had dessert, I had another appetizer plate of the frog legs. They were that good. Jean Anthelme Brillat-Savarin famously said, “Tell me what you eat, and I’ll tell you who you are.” For ten days, we explored France and Belgium. While we were there to learn about history, we got a great education by immersing ourselves in the food culture of both countries. We learned not only what people eat—but why they eat it. I’m a slightly picky eater, but I tried pigeon and frog—and loved them both. I’m already planning my return trip. Bon appetit!

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John Billings - Vice President, Client Administration 865.297.4070 | tcvwealth.com An Independent Fiduciary and Fee-Only Wealth Management Firm May 2022

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Address Changes WELCOME NEW MEMBERS

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

THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS: NEW ATTORNEYS Leigh K. Cowden Leigh Cowden PLLC

Brandon S. Criswell BPR #: 036774 Oak Ridge Associated Universities 100 Orau Way Oak Ridge, TN 37830-6209 Ph: (865) 574-0185 brandon.criswell@orau.org

Zoe Antigone McKenzie Mikaela M. Smith Foster & Potter, P.C.

M. Samantha Parris BPR #: 026517 Law Office of Samantha Parris 2908 Tazewell Pike, Suite G Knoxville, TN 37918-1878 Ph: (865) 687-8744 samantha@sparrislaw.com

NEW LAW STUDENT MEMBERS Troy C. Book Brandy K. Brogdon Leonora Browne Joseph T. Duncan Shannon M. Gil Corey Ann Grayson Emma R. Grodan Crystal J. Harris Shawn Marcie

Heidi H. Buxton BPR #: 013565 Buxton Law Firm 136 S. Illinois Ave., Suite 103 Knoxville, TN 37830-6220 Ph: (865) 482-4920 heidibuxton@buxtonlawfirm.com

Berkley Mason Naudia O’Steen Madison Rademacher Jordan D. Ritz Porter V. Solomon William Taylor Jennifer N. Troutt Andrew W. Varney Ariana E. Wright

Erin Alexander White BPR #: 034486 Erin White Law, PLLC 408 N Cedar Bluff Rd., Suite 254 Knoxville, TN 37923-3641 Ph: (865) 297-4564 erin@erinwhitelaw.com

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BENCH AND BAR IN THE NEWS How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to Marsha Watson at mwatson@knoxbar.org. LEGAL AID OF EAST TENNESSEE NAMES DEBRA HOUSE EXECUTIVE DIRECTOR The Board of Directors of Legal of Aid of East Tennessee (LAET) has announced the appointment of Debra House as Executive Director. Ms. House served as Interim Director since January of 2021 and assumed her new duties on March 24th. A graduate of Western Michigan University and the University of Tennessee College of Law, Ms. House joined LAET in 1988 as a staff attorney in the firm’s Cleveland office before moving to the Knoxville office in 2007. Ms. House has served in various roles at LAET over the past 33 years, most recently as the Director of Development and Compliance. In that capacity, Ms. House was responsible for LAET’s Development Department, Pro Bono Program, and marketing and branding efforts. She also acted, in essence, as the firm’s general counsel for grant compliance. Ms. House has led several important projects at LAET in collaboration with other statewide partners, including development of the Tennessee Senior Law Alliance and Cycles of Success projects. In addition to the teams, initiatives, and project she has managed for LAET, Ms. House also has served in leadership roles for many organizations, including the Knoxville and Tennessee Bar Associations, the Family Resource Agency in Cleveland, the Knoxville Family Justice Center, and the Tennessee Alliance for Legal Services. She currently is a member of the House of Delegates of the TBA and co-chairs the KBA Access to Justice Committee. KBA MEMBER SHOUT OUTS As part of this year’s focus on celebrating our bar association’s diverse membership and exploring creative ways for members to connect, network, and experience fulfillment in the practice of law, we would like to highlight the accomplishments and contributions of KBA members who are making a difference in the legal arena and beyond. Send links to news to posts or articles, pictures, or just a blurb about what’s going on to membership@knoxbar.org. FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates? Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource. LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources. OFFICE SPACE AVAILABLE: • Existing association of attorneys have available 1-2 office spaces in historical building 1816 Clinch Ave., across from Ft. Sanders Reg. Hospital to include parking spaces, conference room, reception area,

receptionist, phone system, internet and Lexis access. Email cburks@ jnblawfirm.com or call (865) 522-4964 for inquires. •

1520 Highland Avenue in Fort Sanders Available - The offices are $1,000/month and includes a private office and access to a common area that includes a full kitchen, reception area, conference room and separate client meeting room, plus 1 free parking space in addition to free on street parking. The office is “Class A” space (there’s even a fireplace in the meeting room!) and it would be a great office sharing arrangement for up to 4 people who are starting out. Rent includes utilities, alarm, and internet. Contact Perry Childress at (865) 8032545.

Weekly Walk - Join us Tuesdays at 6 pm The KBA Wellness Committee invites everyone to meet up for a group walk every Tuesday evening at 6 p.m. at Lakeshore Park to walk/run. All distances / levels (run/walk) welcome. Kids, spouses, friends, dogs also welcome. Hit the Trails for a Hike - May 21 The KBA Wellness Committee is planning a monthly weekend hike. After the success of the April hike at Ijams, the Wellness Committee’s monthly hike for May will be House Mountain on Saturday May 21, 2022 at 10:00 a.m. A short drive from downtown, House Mountain is Knox County’s highest peak and provides spectacular views of Knoxville and the surrounding area. Those who brave the short but challenging hike up will be rewarded with the views from the overlooks. The full hike (up and back and to both overlooks) is 4.5 miles and will take around 3-4 hours to complete. Bring water and snacks, and wear good walking shoes. Dogs on leashes are welcome on the trail. Bring your friends, spouses, dogs, kids and explore with us. We will meet at the parking area beside the information kiosk at 10:00 a.m. Please RSVP for this free event on the KBA website. TurboSpin Class Set for June 11 Join the KBA Wellness Committee on Saturday June 11, 2022 at 10:30 a.m. for a group class at TurboSpin. Class fee is $15, which includes bike shoes and towel. All fitness levels are welcome! Please bring your own water bottle. TurboSpin is a locally owned spin studio located at 215 Brookview Centre Way, Knoxville, TN 37919. Save the date and a link to register will be made available closer to the event date. Save the Date: August 19 Tennis & Pickleball Tournament The KBA Wellness Committee is planning the KBA Tennis and Pickleball Tournaments for Friday, August 19 at Cedar Bluff Racquet Club and the Pavillion of Pickleball. Hold August 19 on your calendar and watch for registration details soon.

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

Lewis Thomason, P.C.

CALLING ALL MEDIATORS Our bar is fortunate to have a core group of quality civil mediators— lawyers with significant experience, proven records, and more war stories than any of us could stomach. It’s no secret, however, that many of them are approaching retirement, and a clear changing of the guard is on the horizon. To that point, opportunities abound for developing a successful mediation practice in the next five years, and any lawyer with gray hair and a modicum of trial experience should jump on this train now by getting their Rule 31 certification. I’ve never served as a mediator, but having participated in a number of mediations, I can certainly see the appeal. You control your schedule. You bill at higher rates. Although you hope each case settles, if it doesn’t at the end of the day, it’s not your fault, and best of all, you don’t have to put up with the clients or their attorneys who are likely more scorned now than when they began. Not everyone is suited for the role, which begs the question: “What makes a good mediator?” Obviously, “good” is subjective, and if we polled KBA membership, we would have competing answers. The American Arbitration Association’s Model Standards of Conduct for Mediators suggest that first and foremost, a good mediator is impartial, meaning “free[] from favoritism, bias[,] or prejudice.”1 Beyond impartiality, there are some other, obvious and uncontroversial traits, including (among others) competence, patience, and relatability. While all of those are great qualities and each surely shares a positive correlation with a mediator’s success rate, I come before you now to say that there are really just two measures of your worth as a mediator: (1) lunch; and (2) snacks. I’ll take each in turn. Lunch Like old-timey gospel meetings and community homecomings, mediations are—in most cases—an “all day to-do with dinner on the grounds,” which is precisely why I hulk out when a mediator has us “break for lunch.” Listen dude, we’re paying you more than our own hourly rate. The least you can do is feed us, and don’t be too cheap. No one could reasonably expect a steak dinner, but a cold cut with chips and no cookie won’t cut it either. My favorite mediators usually spring for restaurants in the pricepoint akin to mid-major basketball. You know, somewhere with endless breadsticks or a chicken tender and rib platter. You might not celebrate your anniversary at whatever restaurant your mediator offers, but you wouldn’t be totally ashamed to turn in the receipt to your accounting department, either. (As an aside, I shudder when I hand off my Taco Bell receipt to accounts payable: “How many people were at this meeting?” or “Should I put part of this as marketing?”) Beyond the quality of the restaurant, it’s also important that the mediator gives you a menu and allows you to choose whatever slop you think will best keep your anxiety at bay. (Most of my mediations involve clients who participate by phone or Zoom, which allows me to maximize May 2022

on lunch. I’m not suggesting that you be uncivilized and house a plate of chili cheese fries, but it’s a lot easier to eat a chicken tender when your client isn’t watching.) Giving a menu is an absolute no-brainer. It ensures everyone gets what they want to eat (within reason). No one is hangry, and everyone gets a brief but well-needed break from negotiations. Plus, there’s essentially no risk to the mediator. How badly can we hurt your bottom line if the most expensive item on the menu (usually the chicken tender/ rib combo) costs $16.00? It’s like getting a complimentary bottle of André at a Motel 6. There’s nothing particularly impressive about the “champagne” or the room, but it’s still nice to feel appreciated. Snacks For many of the same reasons, quality mediation requires quality snacks. I use the word “quality” in the snack-sense as a synonym for enjoyable, not healthy. Aside from taking a “lunch break,” there’s nothing worse than a snackless mediation, which includes being provided a bowl of mints. Mints provide no sustenance. They conceal bad breath typically caused by excessive consumption of real snacks, coffee, or both. My favorite mediator—who for fairness will be referred to as the “Snack Man”—has a cornucopia of snacks available at all times and in every conference room. Among Snack Man’s many offerings are a few of my personal favorites: Welch’s Fruit Snacks®, various name brand potato chips, Fudge Stripes®, Cheez-Its®, mixed nuts, Milano® cookies, and Nekot® Sandwich Cookies, to name a few. Not only is the list itself impressive, so too is its presentation. Each of these snacks are neatly organized in a tastefully appointed box, which sits on the counter near a coffee maker and a refrigerator filled with all major varieties of soft drinks and bottled water. The whole thing screams luxury (at least by my standards). As with lunch, providing these snacks requires a small financial investment, but it pays substantial dividends. Everyone participating in the mediation immediately knows two things when they see these snacks: (1) this mediator means business; and (2) even if this lasts all day, I’ve got plenty of fruit snacks. Snacks alone are responsible for at least 60% of all successful mediations. So, in conclusion, I welcome all of you to consider joining the ranks of our esteemed mediators, but only if you supply adequate provisions.

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Model Standards of Conduct for Mediators (Sept. 2005).

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

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

BE A PART OF A FEEL-GOOD STORY Recently, a mother passed away and left her only child to receive her estate and assets. This client, left to pick up the pieces following her mother’s passing, sought to settle the estate and re-title the assets herself. Unfortunately, the Court of a neighboring county refused her pro se filing for probate. The client learned that, without the help of an attorney, she could never open the estate and find closure. Shortly after, she came to Legal Aid for assistance and advice. We advised her on how to protect her assets from potential creditors and began the search for a private attorney willing to go to the client’s county and open the estate for her to the satisfaction of that Court. After only a few days of asking, we were able to pair this client with a local attorney for full representation. Because of the pro bono work of this attorney, the client maintained her safe housing, established funds to support herself, and found closure following the loss of a parent. The hours donated by this kind attorney saved days and weeks of stress and worry for the client. She could access and navigate a confusing legal system where she otherwise could never afford to do so. It is stories like these that encourage our work and remind us that pro bono time, no matter how limited it may seem, changes lives and outcomes for clients in need. We are increasingly getting calls from clients who are told they must have any attorney to file probate. We are always looking for attorneys who are willing and able to provide full representation to help clients with probate. In addition to full representation, we are eager for volunteers willing to provide basic probate advice to help pro se litigants understand the process and provide them with the opportunity to ask questions and get tailored advice. If you are interested in helping clients with probate, please check out available cases on our website www.laet.org under the Pro Bono Matters section or email me to volunteer for phone advice at ctorney@laet.org. The Pro Bono Project is also enthusiastically looking for volunteers willing to help us meet the increasing demand for assistance with conservatorships. As the population ages, more and more adult children need help obtaining a conservatorship to care for a parent with Alzheimer’s Disease or Dementia. The other major demographic calling for help with conservatorships is parents of children with disabilities who are approaching 18. Recently a father called us seeking conservatorship over his son with profound disabilities. His son had recently turned 18, and the client found many of the things the son needed done on his behalf were not able to be done efficiently, if at all. He turned to Legal Aid and the attorneys who volunteer their time with us. Within weeks of placement, this father could once again provide the comprehensive and constant care his son required. Just this month, a mother needed a conservatorship over her hospitalized son. The family’s physician shared the unfortunate news that he could no longer handle his own affairs, and the family was left to figure out what to do next. She came to Legal Aid, and we began searching for an attorney in the area willing to work with her family. It

only took a few emails to find a private attorney that would step up. This private attorney, the family’s physician, and the client all worked together to establish the conservatorship, protect her son’s interests, and make sure that his future would be taken care of by those that loved him dearly. Our conservatorship clients are often in stressful and sorrowful situations. They give much of their time and energy to those they love, but they face unique legal hurdles to obtaining the legal status they need to provide total care for their loved ones. Without private attorneys volunteering their time, these less privileged families face difficult situations and confusing legal systems alone. Your time could be the difference between a family fighting to hold on and a family that has the status they need to efficiently care for one another. I’d be remiss if I didn’t thank Ryan McMillan and Kelsey Davis of Milberg Coleman for already taking 3 conservatorships in 2022! I’m so grateful for their commitment to our clients. Please consider reaching out to our office if this is a practice area that interests you. Call or email me directly or check out Pro Bono Matters online. We would love to connect you with one of the many families in need and help you be a part of a feel-good story!

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2022 Clinic Opportunities Legal Advice Clinic for Veterans: In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. Phone advice options available. • Wednesday May 11th, June 8th, July 13th Noon – 2pm • To sign up, please use the form on the KBA Website or email ctorney@laet.org. Debt Relief Clinic: Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. advice options available. • Saturday June 25th, September 10th, November 19th 9:00am – Noon • To sign up, please email ctorney@laet.org. Virtual Pro-Se Name Change Clinic: Via Zoom. Will serve clients across East Tennessee in partnership with law students from Belmont School of Law. • Saturday August 20th, 10:00 AM – 1:00 PM • To sign up, please email ctorney@laet.org.

May 2022

TELL ME A STORY By: Kayla Morán

Candidate for J.D., 2022 University of Tennessee College of Law President, Latino/a Law Student Association; Head BarBri Ambassador

WHAT WERE THE CHOICES YOU MADE THAT, INTENTIONALLY OR NOT, LED YOU TO THIS PLACE IN YOUR CAREER? A question I’ve been getting asked a lot lately, usually because I am involved in many things or because my resume appears very scattered across industries and interests, is why I want to be a lawyer. Or more matter of fact, why I’m in law school. My answer goes back to my purpose in life, which is to inspire and make a positive impact on others the way those who inspired and affected my life have. From an early age, I always wanted to help people and have been volunteering. I began in Miami, through performing with my dance studio at the Susan G Komen Race for the Cure and other community festivals and events. On my own time, I also volunteered at annual marathons and did a high school internship at our local children’s hospital. But my love for giving back really took on a life of its own in college, where I was the head fundraiser for my sorority at the University of Central Florida’s annual Knight-Thon benefitting Arnold Palmer Children’s Hospital. I fell in love with meeting the children and families we were helping, organizing fundraising drives for my sisters, bucketing on campus, and connecting with the hospital staff who worked hard to keep these babies and children healthy and happy. Once I came to law school, I looked for similar opportunities to volunteer in Knoxville and continue my community service efforts. Ways to give back to my Latin community were presented to me by LLSA through a position as Community Service Chair and I jumped at the opportunity to work with Centro Hispano. As LLSA President I have also made efforts to further diversity on campus alongside my community work. I’ve stayed involved with Knight-Thon as an alumnus as well, although not as a donor just yet, but I will be in the future! This drive to get involved really propelled my interest in networking which became especially important once I realized I wanted to return to Florida post-graduation. UT Law has a robust network of attorneys in the Southeast, and I wanted to tap into it and go beyond too. Not just for myself but also to strengthen UT Law’s ties to South Florida since a few of my classmates also wanted to return to Miami or were from there. My courageousness and ability to put myself out there was only further encouraged by career services and my professors, namely Joan Heminway and Eric Amarante who became my mentors my 1L Spring. Early on in my law school career, I dived into LinkedIn head first, connecting with lawyers and law firms in Miami. I fell in love with networking and connecting people to each other. I would find myself connecting a friend to someone I knew on LinkedIn if they were in a role my friend was interested in, and people around me took notice. This proved to be a great skill of mine as I further dived into another passion, social media. I began blogging in college to memorialize my study abroad experience and my law school journey. It was during the pandemic when I really began to see the power of social media as a networking tool. I began to make friends with people with similar May 2022

interests to me and I started sharing more of my everyday life from studying and productivity tips to recipes to fashion and I quickly realized that I could make money doing it too. Plus, it was a creative outlet that has become incredibly important to me. As opportunities to work with brands came, so did the contracts and it was during this period, while also in the CED clinic my 2L Spring that I realized I wanted to combine social media and law in my practice as a lawyer. Professor Amarante encouraged me and helped me conceptualize my expository on why lawyers are needed in the creator economy. His belief in me led me to begin networking with lawyers in IP and other related areas like sports and entertainment law to see if anyone was tapping into the influencer market. Turns out there were a few, and I shamelessly messaged the three I found through FIU Law’s annual SEFA Symposium, thanks to a college friend. Only one got back to me and that connection opened the doors to a whole new career path for me. With Professor Amarante’s backing I began to write my paper and do more research on the intersection of law and social media, leading me to discover an engineer turned full time influencer who was founding a tech startup based in Miami. With a solid idea in mind and two mentors, I fearlessly pitched myself to this tech startup founder. She wasn’t hiring but she liked my background and persistence, so she hired me to do contract review as an influencer manager part time my 3L year. It has been during the last few months where my affection for social media and law merged, and I truly discovered I wanted a career where I can be both a lawyer and creator. That I could help others with my unique skill set as both. It was my passion for community service and my love of networking that allowed me to pursue both which was all the more special. Discovering this path would not have happened had I not come to law school or to Tennessee and the people I met here in Knoxville have championed me and my growth as a person. I took a huge risk telling most of my professors and faculty that I want to pursue a career as a lawyer in social media, but everyone has been tremendously supportive. It was this encouragement that led me to finding other creators who were also lawyers and law students interested in the same, which led to an offer to join a startup law firm specializing in influencers and influencer marketing. The most rewarding part is that it was all because I was unafraid to challenge myself and put myself out there. We often have to be the first in a room to make an impact and by not being afraid to share my interests with my law school community, I get to build a career helping others protect themselves legally while sharing who they are online. I’m optimistic to see where my career will take me next, from business endeavors such as my podcast and my experience managing influencers, my future both personally and as a lawyer looks bright.

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Prsrt Std US POSTAGE

P.O. Box 2027 Knoxville, TN 37901

On March 31 and April 1, 230+ lawyers, law students, and law firm staff participated in the Law Practice Today Expo. The Expo was a time to make new friends and renew old acquaintances and after three years, it was great to be back together in person. It was the perfect forum for discussion and exchange of many experiences, suggestions, and opinions with other law office professionals, industry providers, and practitioners from areas throughout East Tennessee. 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, 44 sponsors, 28 judges, and Randy Boyd and Doug Kirchhofer from the Tennessee Smokies to provide an update on the multi-use stadium planned for downtown Knoxville. See the complete list of sponsors on page 2.

PAID

KNOXVILLE, TN PERMIT NO. 3 0 9

DICTA May 2022

Articles inside

Pro Bono Project

Tell Me A Story

Mitchell’s Malarkey

New Members/Change of Addresses

Bench & Bar in the News

Barrister Bites

Grammar Grinch

Well Read

Congress Acts to Reign in Mandatory Arbitration

Barrister Bullets

Of Local Lore & Lawyers

Schooled in Ethics

Legal Update

Legally Weird

Around the Bar

What I Learned About Inclusion and Why It Matters

President’s Message

Better

Management Counsel

Section Notices/Event Calendar

Hello My Name Is

Lessons Learned: Reflections from a Retiring Lawyer

Practice Tips