Schooled in Ethics: Easy Money? Ethical Requirements for Referral Fees . . . Page 12 Legal Update: Making a Supreme Court Case: Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (Harvard Corporation) . . . Page 15
A Monthly Publication of the Knoxville Bar Association | November 2019
A Car Wreck in a Bank: The Butcher Bank Collapse and the Knoxville Bar
Photo Ops
BARRISTERS CONSTITUTION DAY Barristers Constitution Day and School Outreach Committee Co-Chairs, Luke Ihnen and Zack Walden, expanded the Constitution Day program with Knox County Schools this year and reached 125 students. On September 10 and 17, the following volunteer attorneys participated at Christenberry, Maynard and South Knoxville Elementary Schools: Luke Ihnen, Eddy Smith, Allison Starnes-Anglea, Laura Wyrick, Kyle Hixson, Chuck Sharrett, Courtney Read, Richard Graves, and Shanna Fuller Veach. The judges who participated were Hon. Chuck Cerny, Hon. Lisa Lowe, Hon. Kristi Davis, Hon. Debbie Poplin and Hon. Suzanne Bauknight.
KBA HOSTS PROFESSIONAL MIXER WITH LOCAL ACCOUNTANTS On October 2nd, the KBA Interprofessional Relations Committee sponsored a mixer with the Tennessee Society of CPA’s at Mercedes-Benz of Knoxville. More than 80 attorneys and accountants enjoyed hearing about the upcoming Lady Vols Basketball season from Coach Kellie Harper. The event was sponsored by Pinnacle Financial Services and LOGICFORCE.
2
DICTA
November 2019
In This Issue
Officers of the Knoxville Bar Association
COVER STORY
16
November 2019
A Car Wreck in a Bank: The Butcher Bank Collapse and the Knoxville Bar
CRITICAL FOCUS President Wynne du Mariau Caffey-Knight
President Elect Hanson R. Tipton
Treasurer Cheryl G. Rice
5
Immediate Past President Keith H. Burroughs 9
Secretary Jason H. Long
KBA Board of Governors Hon. Suzanne H. Bauknight Jamie Ballinger-Holden Loretta G. Cravens Kathryn St. Clair Ellis Elizabeth B. Ford
Rachel P. Hurt Allison S. Jackson Stephen Ross Johnson Elizabeth K.B. Meadows Mary D. Miller
T. Mitchell Panter Robert E. Pryor Jr. Mikel Towe
Practice Tips
Compassion Fatigue
11
Management Counsel: Law Practice 101
12
The Knoxville Bar Association Staff
President’s Message
A Promise Made Is a Promise Kept
14
CBD: Employers Stuck Between A Rock And A Hard Place
Schooled in Ethics
Easy Money? Ethical Requirements for Referral Fees
Legal Update
Making a Supreme Court Case: Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (Harvard Corporation)
WISDOM
7 Marsha S. Watson Executive Director
Tammy Sharpe CLE & Sections Coordinator
Jonathan Guess Database Administrator
Leslie Rowland Programs Administrator
Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org Tracy Chain LRIS Administrator
Dicta
DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association. All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Watson (522-6522).
Dicta is the official publication of the Knoxville Bar Association
Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Sarah Booher Jennifer Dobbins Elizabeth B. Ford Joseph G. Jarret F. Regina Koho
Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Elizabeth Towe
Managing Editor Marsha Watson KBA Executive Director
DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. November 2019
Julia Hale
10
Legal Myth Breakers
Why Did The Lawyer Cross The Road? Let’s Call the Whole Thing Off
18
19
DICTA
Around the Bar
And the Survey Says...
Vite et crede
All Blood Runs Red
22
Time Out
24
Bill & Phil Gadget of the Month
Well-Being: From Surviving To Thriving
Volume 47, Issue 11
Hello My Name Is
25
26
27
28
Samsung Galaxy Note 10 Plus
Well Read
Book Review: Crossing the Aisle
Your Monthly Constitutional
Resurrecting Congress—and James Madison
Long Winded
Curse Of the Woo
Barrister Bites
Flavors of Fall and Football
COMMON GROUND
4 20 23 29 30 31
Section Notices/Event Calendar Barrister Bullets Bar Hopping Bench & Bar in the News Pro Bono Project Last Word
3
SECTION NOTICES & EVENT CALENDAR
event calendar
Section Notices
There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 522-6522.
Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Section for the upcoming CLE programs “Tips from a Mediator: Do This, Not That” on November 11 featuring Daryl Fansler and “Mediation - Practice & Ethics Update” on December 9 featuring Chad Hatmaker. If you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777). Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. The next Pro Bono Debt Relief Clinic will be held on November 9 and volunteer registration is available at www.knoxbar.org. Join the Bankruptcy Law Section for the CLE program “Bankruptcy Case Law Update” on December 10 featuring Tom Dickenson & Greg Logue. 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. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. The section plans regular CLE throughout the year. Join the Criminal Law Section for the CLE program “Criminal Law Rowdy Roundup of 2019” on November 21 featuring Sarah Keith and Josh Hedrick. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) and Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. Join the Family Law section for the CLE program “TN Family Law Update” on December 3 featuring K.O. Herston. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Leah McClanahan (545-4260) or Ron Mills (215-2050). Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. Join the Section for the extended CLE program “Best Practices & Advice for Attorneys Practicing in Knox County Juvenile Court” on November 15 at Knox County Juvenile Court. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2017 will automatically be opted-in to the section The Section has a organized volunteer day at Zoo Knoxville on Saturday, November 23rd from 8:30 - 11:30 AM. Volunteers will have a chance to work around the park. This event is open to the entire bar (including all attorney and law student members). We encourage everyone to bring family or friends. Children under the age of 16 will not be permitted to volunteer. After the volunteer hours, anyone that volunteers will be able to enjoy the zoo free of charge. Click on November 23 on the event calendar at www.knoxbar.org to volunteer. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Erica Green (525-5134) or Jimmy Snodgrass (545-4228). Senior Section The KBA Senior Section will meet next on December 11, 2019 at Calhoun’s on the River. The program will feature Natalie Manaeva Rice, Institute for Nuclear Security, University of Tennessee. The luncheon will be held from 11:30 a.m. to 1:00 p.m. The price includes an entree, side item, salad and beverage. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307). Solo Practitioners & Small Firms Section The goal of the Solo 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. Join the Solo Practitioner & Small Firm Section for the CLE program “Legal Slide: An Attorney’s Guide to PowerPoint” on December 18 featuring Samantha Warchol. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963) or Patrick Slaughter (637-6258).
4
DICTA
November
1 5 7 11 12 12 13 13 14 14 15 19 19 n 20 n 21 n 22 n n n n n n n n n n n n n
n n n n n n n n n n n n n n n n n n
Judge’s Ain’t Behavin’ CLE Law Office Tech Committee Meeting Barristers Diversity Mixer ADR Section CLE Professionalism Committee Meeting Access to Justice Committee Meeting Veterans Legal Advice Clinic Barristers Meeting Lunch & Learn Judicial Committee Juvenile Court CLE CLE Committee Diversity in the Profession Committee Meeting Board of Governors Meeting Criminal Law Update CLE Memorial Service
December
3 Law Office Tech Committee Meeting 5 Legislative Committee Breakfast 5 Barristers Ugly Sweater Social 6 Ethics Bowl CLE 9 ADR Section CLE 10 Professionalism Committee Meeting 10 Bankruptcy Section CLE 11 Veterans Legal Advice Clinic 12 Barristers Elections 12 Lunch & Learn 12 Judicial Committee 13 Annual Meeting & Elections 17 Diversity in the Profession Committee Meeting 18 Solo/Small Firm Section CLE 16 Board of Governors Meeting 17 Lunch & Learn 19-20 Video Replay CLE 26-27 Video Replay CLE
Mark Your Calendar Annual Meeting & Elections December 13 November 2019
PRESIDENT’S MESSAGE By: Wynne Caffey-Knight Elmore, Stone & Caffey, PLLC
A PROMISE MADE IS A PROMISE KEPT This year has given me many memories to cherish. One was introducing new admittees at the Swearing-In Ceremony in June. The Clerk handed me a list of names as I walked into the magnificent Supreme Court courtroom. I met each applicant in turn at the podium with only a moment to ask a few questions to capture something unique to mention about them before moving for their admission. Their families and loved ones looked on. I wanted to put them at ease, hoping to bring a smile and lessen their nervousness. More than anything, I wanted to let them know our legal community embraces them. Not an October since 1991 has passed without my reminiscing over taking the attorney’s oath and what led up to it. Think back to the three arduous years you invested reading and briefing cases, preparing outlines, and studying, all leading to a single exam or single paper for each class at the end of each semester. Follow that with the weeks and weeks of studying for the bar, the evening bar review classes after work, practicing exams to perfect answering 17 multiple choice questions in 30 minutes, the FBI background check, getting fingerprinted, and the bar exam itself that felt akin to a test of sheer endurance. Remember how you felt after answering the last multiple-choice question or essay. Then came the waiting. My classmates and I trudged reverently to the hallway door outside Dean Wirtz’s office where the results were taped before being published Sunday morning in print news for all the world to see. The trepidation unwound into joy and relief. Unlike our school grades, the exam score was irrelevant. We passed and that was all that mattered – for a brief time anyway.
T
The Tennessee Supreme Court recognizes that the profession actually demands more of us than conducting ourselves honestly. On November 8, new admittees will take a new oath that captures other equally important duties: I do solemnly swear or affirm that I will support the Constitution of the United States and the Constitution of the State of Tennessee. In the practice of my profession, I will conduct myself with honesty, fairness, integrity, and civility to the best of my skill and ability. Their law school and bar exam experiences will be fresh in the minds of the 85 or so applicants. They will be nervous – not just because of the setting, the formality of the proceedings or that people are watching. Mostly, they will be concerned about what comes next. Despite how much they have accomplished, now the real learning begins. Practicing law, and for many, the business of law.
hey need us to be good role models – putting clients at the center of all we do, being well prepared, striving for excellence, being civil and ethical. They also need our supportive ear, answers to their questions, and authentic acknowledgment that this profession is demanding on us as well. Supporting them is beneficial for them and for the collective.”
Do you remember your swearingin ceremony? Who moved your admission? What did they say on your behalf? I vividly remember promising to “honestly demean myself ” in the practice of law because I found that to be curious phrasing. I took that identical and somewhat ironic sounding oath in Texas six months later. Years later, when filing a Petition for Writ of Certiorari in the United States Supreme Court, I promised to “conduct myself uprightly and according to law.” A few things stood out to me when reading the oaths administered by all 50 states. Lawyers must still honestly demean themselves in eight states, most of which are located in the South. By the way, blogs on that phrase delve into the philosophy of law, then digress into disputes as to whether such a thing as a philosophy of law even exists. Lawyers will argue about anything. Not surprisingly, every single oath commands an obligation to uphold the U.S. Constitution. Some have been revised to delete avowals of certain religious beliefs or disavowals of ideological or communistic sympathies. Massachusetts permits Quakers to “affirm” rather than “swear.” It also competes with Maine in claiming rights to the oldest oath. The latter seceded from the Commonwealth, so I put my money November 2019
on Massachusetts. New Mexico adds the nice touch of everyone signing the Roll of Attorneys – a series of books dating from 1982. My sister Margaret signed the third of the five books. Kentucky’s Constitution requires that attorneys swear they have not fought or acted as a second in a duel with deadly weapons. Maybe duels with non-lethal weapons are acceptable.
Their concerns are compounded by the changing legal marketplace. The profession is more streamlined with technological advances. Clients demand more efficiency and lower cost. The traditional model of being an associate is somewhat of a luxury today. For so many new attorneys, the comforts of having work to perform, an income, support of other lawyers, and the structure of an established business with staff, office space and equipment, research resources, a billing system, and so on, represent relative opulence. Regardless of whether they are in a firm, an office sharing situation or working solo from their dining room tables, all these new lawyers need those of us with more experience. They need us to be good role models – putting clients at the center of all we do, being well prepared, striving for excellence, being civil and ethical. They also need our supportive ear, answers to their questions, and authentic acknowledgment that this profession is demanding on us as well. Supporting them is beneficial for them and for the collective. I have read the new oath many times over as a renewal of the first oath I took and the ones thereafter. The attorneys’ oath is a solemn undertaking. It is a promise, and once made, is to be kept. It is also a promise to be shared with and made to our newest colleagues. To all the new lawyers, welcome to the most honorable profession. Welcome to the Bar.
DICTA
5
6
DICTA
November 2019
HELLO MY NAME IS... By: Jennifer Franklyn
Leitner Williams Dooley Napolitan, PLL
JULIA HALE What is your favorite travel destination? Hands down, it is Puerto Rico. Every time I visit, I will spend time with Abuela. She will cook traditional Dominican food, such as arroz y pollo with some tostones on the side. When I’m not with Abuela, I’m with friends enjoying the local beaches and the local night life. The culture in San Juan is so vibrant, you can feel the energy reverberating off of the colorful buildings. Where was your most recent vacation? I travelled to Waikiki in 2018. There, I visited with family and enjoyed the beauty of the island. We took day trips to North Shore, explored the culinary scene, as well as spending lazy days lounging by the beach. My vacations are always planned around where my family lives because home is where the heart is. Do you have pets? I have a Chihuahua named Ollivander. As a huge fan of Harry Potter, I thought it would be fun to name him after one of the lesser known characters from the books. Ollivander will turn ten years old in January. To see him grow up, from a tiny puppy at just 8 weeks old to the (still tiny) dog he is today is a blessing. Dogs are truly (wo)man’s best friend. What do you do when you’re not at work? When I’m not at work, you can find me volunteering with one of the organizations I’m heavily involved in, the Knoxville Area Urban League Young Professionals and Alpha Kappa Alpha Sorority, Inc., my sorority. This month’s “Hello, My Name Is…” column features Julia Hale, Associate Attorney at Lewis Thomason. Julia practices in the areas of construction law, products liability, insurance defense, and domestic relations, and she is an active member of the Knoxville Bar Association and the Defense Research Institute (DRI). I hope you enjoy this introduction to Julia, a rising star in the Knoxville Bar. Where did you go to law school, and when did you graduate? University of Tennessee College of Law, Class of 2018.
Name someone who has had a significant impact on your life. Loy Waldrop and his insightful advice will continue to have a tremendous impact on my career.
Where did you attend for your undergraduate education? University of Tennessee, B.A. in Economics, with a heavy focus on mathematics. Where are you from? Born on a military base outside of Washington D.C., I have spent most of my life moving between D.C., Boston, Florida, and Louisiana. Tell me about your family. I love my family. They are my rock, my foundation. My mom’s side of the family is from the Dominican Republic. After I graduated from law school, I vividly remember the conversations with my mom’s mom, fondly known as “Abuela.” She took the time to tell me that it was always her dream to become a lawyer, but, was unable to considering the circumstances in the Dominican Republic at the time. Now, she says she is able to live her dream of becoming a lawyer through me. November 2019
DICTA
7
8
DICTA
November 2019
PRACTICE TIPS By: Robert Dziewulski Clinch River Law
COMPASSION FATIGUE It should come as no surprise that attorneys are exposed to chronic stress, and are, therefore, likely to experience compassion fatigue. Those suffering from compassion fatigue may lose empathy for others, may experience a reduction in cognitive ability, may be more susceptible to acute and chronic illness, and may have difficulty maintaining meaningful relationships. Compassion fatigue can take different forms; each having different symptoms and solutions. This article will address some of the more common forms of compassion fatigue that attorneys are likely to face, provide examples of symptoms, and some examples of ways to address each form. Of the forms, burnout is the most common.1 While related to stress, burnout presents itself differently. Stress is characterized by having too much to do while burnout is characterized by not having enough within to address stressors.2 If you are burned out, you likely lack motivation, feel mentally exhausted, or show a general lack of interest in your work.3 Reducing and controlling workload will have an impact on burnout, and the best way to combat burnout is by saying “no” more often.4 Secondary traumatic stress (“STS”), a form of compassion fatigue often found in helping professionals, manifests in the same way as PTSD; however, the trigger is the experience of a client rather than one’s own experience.5 An attorney may develop intrusive thoughts or obsessiveness related to the traumatic experiences of clients.6 STS is common when working with clients subjected to abuse or living in high-risk situations.7 Because this form of compassion fatigue mimics PTSD, those who believe they are suffering from it should seek help from a professional. Vicarious trauma (“VT”), while similar, differs from STS because it develops over time.8 As a result, sufferers often view the world or systems as broken. VT is prevalent in individuals that may be overly idealistic or become too emotionally involved in the outcomes of their work.9 Symptoms include stereotyping clients and having problems managing boundaries between oneself and others.10 Creating clear boundaries and staying vested only in what you can do as a professional can help address symptoms of VT.11 Moral injury occurs when a professional engages in activities resulting in moral disorientation because the activities either do not align with their ethics or, at least, create distance between their core values and behavior.12 For example, this may include foreclosing on a person’s property where the person was the victim of fraud or representing a defendant whose fraud caused a victim to go into foreclosure.13 The best way to address moral injury is to work on impacting the area of practice or the profession.14 Compassion fatigue is a pervasive issue in the legal profession. With awareness, attorneys and firms can take steps to address it. You can find more information about compassion fatigue and steps that to address it at stress.org, goodtherapy.org, and greencross.org.
November 2019
Lee Norton, Ph.D., M.S.W., Jennifer Johnson, Esq., & George Woods, Burnout and Compassion Fatigue: What Lawyers Need to Know, 84 UMKC L. Rev. 987 (2015). John Rampton, The 6 Causes of Professional Burnout And How To Avoid Them, https://www.forbes.com/sites/johnrampton/2015/05/13/the-6-causes-of- professional-burnout-and-how-to-avoid-them/#29d480d11dde. 3 Avoiding Burnout, https://www.mindtools.com/pages/article/avoiding-burnout.htm. 4 Melinda Smith, M.A., Jeanne Segal, Ph.D., Lawrence Robinson, and Robert Segal, M.A., Burnout Prevention and Treatment, https://helpguide.org/articles/stress/ burnout-prevention-and-recovery.htm. 5 Tasha Van Vlack, Warning signs of Vicarious Trauma/Secondary Traumatic Stress and Compassion Fatigue, https://www.tendacademy.ca/warning-signs-of-vicarious traumasecondary-traumatic-stress-and-compassion-fatigue/. 6 Andrew P. Levin, MD, Linda Albert, LCSW, Avi Besser, PhD, Deborah Smith, JD, Alex Zelenski, MBA, Stacey Rosenkranz, PhD, and Yuval Neria, PhD, Secondary Traumatic Stress in Attorneys and Their Administrative Support Staff Working With Trauma Exposed Clients, http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.721. 8089&rep=rep1&type=pdf. 7 Dr. Katie Baird & Amanda C. Kracen, Vicarious traumatization and secondary traumatic stress: A research synthesis, Counselling Psychology Quarterly, 19:2, 181-88 (2006). 8 Tasha Van Vlack, Warning signs of Vicarious Trauma/Secondary Traumatic Stress and Compassion Fatigue, https://www.tendacademy.ca/warning-signs-of-vicarious traumasecondary-traumatic-stress-and-compassion-fatigue/. 9 S. Megan Berthold, PhD, LCSW, CTS, Vicarious Trauma and Resilience, https://vtt. ovc.ojp.gov/ojpasset/Documents/VT_VT_and_Resilience_Training-508.pdf. 10 Id. 11 Id. 12 Simon G. Talbot and Wendy Dean, Physicians aren’t ‘burning out.’ They’re suffering from moral injury, https://www.statnews.com/2018/07/26/physicians-not-burning- out-they-are-suffering-moral-injury/. 13 Id. 14 What is Moral Injury, http://moralinjuryproject.syr.edu/about-moral-injury/. 1
2
DICTA
9
LEGAL MYTH BREAKERS By: Brad Fraser
Leitner Williams Dooley Napolitan, PLL
By: Jennifer Franklyn
Leitner Williams Dooley Napolitan, PLL
WHY DID THE LAWYER CROSS THE ROAD? LET’S CALL THE WHOLE THING OFF “Let’s Call the Whole Thing Off ” is an iconic song from my parents’ generation written by George and Ira Gershwin for the 1937 film Shall We Dance.1 In the movie, Fred Astaire and Ginger Rogers perform their famous dance on skates while singing the duet.2 The song isn’t as much about dialect as it is in class differences. I remember my parents singing the song frequently. The song was covered by other artists such as Bing Crosby/Rosemary Clooney,3 Sam Cooke,4 Billie Holliday,5 Ella Fitzgerald/Louis Armstrong,6 and Harry Connick Jr.’s version in When Harry Met Sally.7
The lyrics most people recall are these: You say either and I say eyether You say neither and I say nyther; Either, eyether, neither, nyther Let’s call the whole thing off! You like potayto and I like potahtoe You like tomayto and I like tomahtoe; Potayto, potahtoe, tomayto, tomahtoe! Let’s call the whole thing off!8
In the litigation, when we “call the whole thing off,” it is called a dismissal, or sometimes a “nonsuit.” To most lawyers, we consider a “nonsuit” voluntary, while dismissal can be either (eyether?) voluntary or involuntary. Dana Holloway, who founded our Leitner office in Knoxville, jokingly called it a “Mulligan.” The important distinction is whether dismissal is “without prejudice,” which may be refiled, or “with prejudice,” which may not. The distinctions are critical in both state and federal jurisprudence. When a lawyer “crosses the road” to the federal courthouse, there are some procedural differences.
The Rules
Pursuant to the Tennessee Rule of Civil Procedure 41.01(1), plaintiffs have wide latitude to take a nonsuit, limited “subject to the provisions of Rule 23.05, Rule 23.06, or Rule 66 or of any statute, and except when a motion for summary judgment made by an adverse party is pending.”9 Otherwise, “the plaintiff shall have the right to take a voluntary nonsuit to dismiss an action without prejudice.”10 Rule 41.01 also allows plaintiffs to make an “oral notice of dismissal made in open court during the trial of a cause or in jury trial at any time before the jury retires to consider its verdict and prior to the ruling of the court sustaining a motion for a directed verdict.” However, under the Federal Rules of Civil Procedure, the unilateral ability of a plaintiff to take a voluntary nonsuit without prejudice terminates when a defendant files an answer or motion for summary judgment.11 In federal court, Rule 41(a) limits the right of voluntary dismissal as “subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute.” In cases not subject to these Rules, the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared.12
How many dismissals can a plaintiff take?
Another key distinction between the Tennessee Rules of Civil
10
Procedural and the Federal Rules of Civil Procedure is the number of voluntary dismissals a plaintiff may take in each court. In state courts, the third nonsuit must be with prejudice.13 However, in federal court, the second nonsuit must be with prejudice.14 When can a plaintiff voluntarily dismiss? Tennessee courts have elaborated upon a plaintiff ’s right to take a voluntary dismissal until the jury has retired to deliberate and have provided for narrow circumstances in which a court may exercise discretion to allow a voluntary dismissal.15 In Lacy v. Cox, the Tennessee Supreme Court set forth in detail the substantial differences between Tennessee Rule of Civil Procedure 41.01 and Federal Rule of Civil Procedure 41. Tennessee’s Rule 41.01 permits “voluntary dismissal as of right at a procedural stage that is significantly later than what Federal Rule 41 provides.”16 The Court explained, “[w]hereas Federal Rule 41(a) terminates voluntary dismissal as of right upon service of an answer or a motion for summary judgment, whichever first occurs, Tennessee Rule 41.01(1) allows for voluntary dismissal in a jury trial ‘at any time before the jury retires to consider its verdict....’”17 Summarizing, the Court stated, “[u]nder the federal scheme, voluntary dismissal as of right ends – and voluntary dismissal by order of the court begins – at the pretrial stage; it is thus reasonable that a federal district court might exercise its discretion to grant voluntary dismissal without prejudice. . . on the first day of trial.”18 Put simply, in Tennessee, a trial court has authority to allow a voluntary dismissal at nearly any stage, including subsequent to the granting of a new trial, but during the brief period that the jury is deliberating, a trial court is not permitted to grant a voluntary dismissal.19 The “take away” In federal court, a litigant has a short window of time to take a voluntary nonsuit, but after that window closes, the Court may, in its discretion, allow a voluntary dismissal. Once the defendant files an answer or a motion for summary judgment, a plaintiff must either secure consent of all parties to dismiss a case without prejudice, or convince the court to permit such a dismissal. In Tennessee state courts, Plaintiffs retain this right up until the date of trial. However, plaintiffs have no right to take a “Mulligan” after the case is presented to the trier of fact, and the jury begins deliberations. 3 4 5 6 7 8 9 1 2
12 13 14 15 16 17 18 19 10 11
DICTA
IMDb, https://www.imdb.com/title/tt0029546/soundtrack, accessed Oct. 8, 2019. Id. https://www.amazon.com/Lets-Call-Whole-Thing-Off/dp/B0037BTXMU, accessed Oct. 8, 2019. https://www.amazon.com/Lets-Call-Whole-Thing-Remastered/dp/B00SXS4CXW, accessed Oct. 8, 2019. https://www.amazon.com/Lets-Call-Whole-Thing-Off/dp/B00DOPSCG2, accessed Oct. 8, 2019. https://www.amazon.com/Lets-Call-Whole-Thing-Off/dp/B07H1455JJ, accessed Oct. 8, 2019. https://www.imdb.com/title/tt0098635/soundtrack, accessed Oct. 8, 2019. https://www.lyrics.com/lyric/1908032, accessed Oct. 8, 2019. Tenn. R. Civ. P. 41.01(1). Tenn. R. Civ. P. 41.01(1). Fed. R. Civ. P. 41(a). Fed. R. Civ. P. 41(a)(1)(A). Tenn. R. Civ. P. 41.01(2). Fed. R. Civ. P. 41(a)(1)(B). Lacy v. Cox, 152 S.W.3d 480, 488 (Tenn. 2004); see also Donald F. Paine, Nonsuit News, 41 Tenn. Bar J. 15 (Apr. 2005). Id. at 486. Id. Id. (emphasis in original). Id.
November 2019
MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Andrew M. Hale Kramer Rayson LLP
CBD: EMPLOYERS STUCK BETWEEN A ROCK AND A HARD PLACE Unless you’ve been living under a rock, you have recently been confronted by the letters CBD. In gas stations, in radio advertisements, or on the front of seemingly every retail center in East Tennessee. The mainstream availability and use of CBD presents an even more looming reality for employers: it is here, and it is here to stay. Regardless, the questions still remain – what is it, how does it affect my workplace, and what should I do about it? Without getting too deep in the “weeds” . . . there are two kinds of cannabis plants, hemp and marijuana.1 For our purposes, both hemp and marijuana contain two chemicals: Cannabidiol, known as CBD, and delta-9 Tetrahydrocannabinol, known as THC.2 CBD is said to have many medicinal benefits, although it has only been approved by the FDA as the active ingredient in Epidiolex, which treats rare forms of epilepsy.3 THC, on the other hand, is the chemical that causes the (allegedly) psychoactive effects associated with marijuana.4 Congress, and subsequently the Tennessee General Assembly, legalized hemp, and defined it as any part of the cannabis plant and its derivatives, including CBD, with a THC concentration of no greater than 0.3%.5 If a hemp plant or any product derived from a hemp plant that has a THC concentration greater than 0.3%, it remains considered marijuana, which is still an illegal schedule I drug.6 Simple enough. The problem? Because of the FDA’s lack of approval for the vast majority of CBD products, there is no regulation on the production of the products being sold in the stores we drive past every day.7 Thus, hemp-derived CBD that is supposed to contain no more than 0.3% THC may contain more.8 Indeed, a recent study showed that over 40% of CBD oils tested have more THC in them than their label indicates.9 Moreover, CBD has the same chemical composition whether it comes from hemp or marijuana, and there is no reliable testing to determine from which plant it originated.10 Further, drug tests screen for THC when trying to detect marijuana usage. Accordingly, the use of CBD products that are advertised as containing a lawful percentage of THC may result in a positive drug test.11 In short, absent FDA regulation and reliable production testing, the product employees buy may be mislabeled, which could lead to a positive drug test for an employee taking CBD. The issues created by the lack of regulation and unreliable testing are no stranger to Tennessee. At least two public employees, one employed by the City of Murfreesboro12 and one by Sumner County13, who were CBD users, failed drug tests given by their employers. The City of Murfreesboro is a Tennessee Drug-free Workplace, so under its guidelines, the drug test was deemed a failure because the employee tested above the legal limit for marijuana (THC), even though the employee argued that the positive result was caused by CBD. Ultimately, the employee chose to resign rather than be fired.
What does this mean for employers? Unfortunately, until more reliable testing is released, they’re likely stuck between a rock and a hard place. Employers who have zero tolerance drug testing policies set themselves up for disparate treatment claims if they create exceptions for employees claiming their positive drug screen was caused by CBD use. In addition, the strength of an employer’s drug policy is weakened if employers accept an explanation of CBD use (which is available to anyone) as an excuse for a positive drug screen. Nevertheless, Tennessee is still an at-will employment state, and there are currently no carve outs for CBD use with respect to employment decisions. This gives employers more leeway when it comes to following their own policies, many of which will require testing for THC in order to remain compliant with Department of Transportation regulations and/ or Tennessee Drug-Free Workplace. With little to no precedent on the issue, employers are better off sticking to their written policies when it comes to drug testing. However, we recommend training employees that if they are taking CBD for non-epileptic purposes, any positive drug screen would still be considered a violation of policy. While CBD use is legal, a positive drug screen (even if caused solely by CBD use) remains a violation of policy. It is a difficult spot for both employers and employees.
Renée Johnson, Defining Hemp: A Fact Sheet, Congressional Research Service R44742 (2019). 2 Id. 3 See Amy Abernethy, M.D., Ph.D., Lowell Schiller, J.D., FDA is Committed to Sound, Science-based Policy on CBD, U.S. Food & Drug Administration (July 17, 2019), https://www.fda.gov/news-events/fda-voices-perspectives-fda-leadership-and- experts/fda-committed-sound-science-based-policy-cbd. 4 Renée Johnson, Defining Hemp: A Fact Sheet, Congressional Research Service R44742 (2019). 5 7 U.S.C.A. § 16390(1); Tenn. Code Ann. § 43-27-101 6 21 C.F.R. § 1308.11(d)(58). 7 See Amy Abernethy, M.D., Ph.D., Lowell Schiller, J.D., FDA is Committed to Sound, Science-based Policy on CBD, U.S. Food & Drug Administration (July 17, 2019), https://www.fda.gov/news-events/fda-voices-perspectives-fda-leadership-and- experts/fda-committed-sound-science-based-policy-cbd. 8 Marcel O. Bonn-Miller, PhD et al, Labeling Accuracy of Cannabidiol Extracts Sold Online, 318 JAMA 17 (2017). 9 Id. 10 Martin A. Lee, Project CBD: Cannabis Oil vs. Hemp Oil, Project CBD (October 11, 2019 11:07 AM), https://www.projectcbd.org/cbd-101/cannabis-oil-vs-hemp-oil. 11 Allen Smith, J.D., Cannabis Oil Complicates Testing, SHRM HRMagazine, Fall 2019, at 34. 12 Mariah Timms, Murfreesboro City employee resigns after CBD use triggers failed drug test, Murfreesboro Daily New Journal, Aug. 8, 2018, https://www.dnj.com/ story/news/2018/08/08/murfreesboro-city-employee-resigns-after-cbd-use-fails- drug-test/935156002/. 13 Linda Ong, Sumner County man fails drug test because he used CBD, even though it’s completely legal, WKRN, Feb. 1, 2019, https://www.wkrn.com/special-reports/ sumner-county-man-fails-drug-test-because-he-uses-cbd-even-though-its- completely-legal/. 1
About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Cathy Shuck at 541-8835. November 2019
DICTA
11
SCHOOLED IN ETHICS By: Judy M. Cornett
UT College of Law
EASY MONEY? ETHICAL REQUIREMENTS FOR REFERRAL FEES The ABA Journal recently reported that a Pennsylvania law firm and one of its former partners are embroiled in a lawsuit over an $11 million referral fee.1 The underlying suit was brought by a Philadelphia food truck worker who suffered catastrophic injuries when the truck’s propane tank exploded. The worker was brought to the Elliott Greenleaf firm by Richard DeMarco, an associate who was later named a partner. The worker retained Elliott Greenleaf to represent her in the personal injury case, but the firm in turn referred her case to a second firm, Saltz, Mongeluzzi, Barrett & Bendesky.2 The two firms entered into a referral agreement that provided for the Saltz firm to charge a 40% contingent fee and to pay 40% of its fee to Elliott Greenleaf as a referral fee. The case was settled for $70 million, resulting in a $28 million contingent fee, $11 million of which constitutes the referral fee. DeMarco claims the fee on the ground that the client fired the Elliott Greenleaf firm after he left the firm and retained him solely. Certainly, an $11 million fee is worth fighting over. But whether the fee would be consistent with Tennessee’s ethics rules depends on a number of factors. Tennessee Rule of Professional Conduct 1.5(e) provides: (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, and the agreement is confirmed in writing; and (3) the total fee is reasonable. Comment [7] to the Rule explains that “[a] division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division is between a referring lawyer and a trial specialist.” In Tennessee there is no such thing as a “pure” referral fee. A lawyer can earn a proportional referral fee by performing services for the client or by “assum[ing] joint responsibility for the representation.” What it would mean to “perform services” seems clear, but with respect to what it would mean to assume “joint responsibility,” Comment [7] clarifies, “Joint responsibility for the representation entails the obligations stated in RPC 5.1 for purposes of the matter involved.” Or, more clearly, Comment [7] to
the current ABA Model Rule 1.5 provides: “Joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.” The Rule makes clear that the client’s agreement to the fee must be “confirmed in writing.” This term, “confirmed in writing,” is defined in Rule 1.0 to include “a writing that a lawyer promptly transmits to the person confirming an oral informed consent,” i.e., a confirmation letter.3 If the fee is contingent, the lawyer must comply with Rule 1.5(c) requiring all contingent fee agreements to be in a writing that states the following: [1] the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial, or appeal; [2] litigation and other expenses to be deducted from the recovery; . . . [3] whether such expenses are to be deducted before or after the contingent fee is calculated [and] [4] any expenses for which the client will be liable whether or not the client is the prevailing party. Rule 1.5(c) also requires that the lawyer “provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.” Interestingly, ABA Model Rule 1.5(e)(2) requires that the client also agree to “the share [of the fee] each lawyer will receive.” However, Tennessee has not adopted this revision, and Comment [7] to Rule 1.5 explains that the rule “does not require disclosure to the client of the share [of the fee] that each lawyer is to receive.” Despite the requirement that the client’s agreement to the fee be “confirmed in writing,” the Tennessee Court of Appeals has held that a lawyer’s failure to obtain the client’s written agreement to the referral fee will not result in forfeiture of the fee. In Coleman v. Coleman, the client did not consent to the division in writing. Nevertheless, the court refused to nullify the fee division because it was not a “flagrant” disciplinary violation. The client had agreed to the fee orally, and the referral fee did not increase the total amount of the fee.4 Finally, Rule 1.5 requires that the “total fee” must be reasonable. The factors to be considered in determining reasonableness are set forth in Rule 1.5(a). However, “the total fee cannot be increased because of the referral.”5 Therefore, like (Continued on page 13)
If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. 12
DICTA
November 2019
ANNUAL FALL HIKE SATURDAY, NOVEMBER 9 The Professionalism Committee invites you to the annual fall hike on Saturday, November 9 at 9:00 a.m. at Fort Dickerson Park. Hiking on the easy to moderate trails of this 91-acre South Knoxville gem will provide vistas of downtown, the mountains and the quarry lake.
You may bring snacks and water for hiking as well as food and your favorite beverage for a post-hike picnic lunch.
Please confirm your participation by registering online (click on November 9 on the event calendar at www.knoxbar.org). If you have questions about the hike, please contact Garry Ferraris at gferraris @ferrarislaw.com. If you plan to bring food or drink for the picnic lunch, please let Chancellor John Weaver know what you plan to bring at john.weaver@knoxcounty.org. All are welcome to bring their families, and join us on Saturday, November 9, for this special time of enjoying nature, comradery and good food! Directions: From downtown Knoxville, take the Henley Street bridge to Chapman Highway. Proceed South on Chapman Highway approximately 1 mile. Turn right on Fort Dickerson Road and park at the trailhead, 3000 Fort Dickerson Road. Look for the Harold Lambert Overlook.
EASY MONEY? ETHICAL REQUIREMENTS FOR REFERRAL FEES (Continued from page 12)
the referral fee in the Pennsylvania case, a referral fee in a contingent case is usually expressed as a percentage of the contingent fee charged by the referee lawyer, or in an hourly case, a percentage of the total amount received by the referee attorney from the client.6 Comment [7] to Rule 1.5 also cautions, “A lawyer should only refer a matter to a lawyer whom the referring lawyer reasonably believes is competent to handle the matter. See RPC 1.1.” Thus, before making a referral, a lawyer must consider the issue of whether and to whom a referral should be made. Comment [6] to Rule 1.1 counsels that the referring lawyer “must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client.” In assessing the reasonableness of the referring lawyer’s belief, the following factors should be considered: “the education, experience and reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information.” Once a referral is made, according to Comment [7] to Rule 1.1, “When lawyers from more than one law firm are providing legal services to the client on a particular matter, the lawyers ordinarily should consult with each other and the client about the scope of their respective representations and the allocation of responsibility among them.” In conclusion, to collect a referral fee, the referring attorney must comply with Rule 1.5(e) but must also consider the cautionary advice in the comments to Rules 1.5 and 1.1. The lawyer should use reasonable care in choosing the referee attorney and should communicate clearly to the client how the lawyers will share responsibility for the representation. 1 Debra Cassens Weiss, Law Firm and Former Partner Battle over $11 Million Referral Fee, ABA Journal (Sept. 26, 2019), available at http://www.abajournal.com/news/article/law- firm-and-former-partner-battle-over-11m-referral-fee. 2 Greenleaf v. DeMarco, Appeal from the Order Entered May 23, 2018, No. 1543 EDA 2018 (Pa. Super. Ct. Jan. 22, 2019), available at https://law.justia.com/cases/pennsylvania/ superior-court/2019/1543-eda-2018.html. 3 Notice that Rule 1.5( e) does not require the client’s “informed consent” for a fee division. However, Comment [6] to Rule 1.1 notes, “Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client . . . .” Although the definition of “confirmed in writing” in Rule 1.0 applies only to circumstances in which “informed consent” is required, it seems clear that if a confirmation letter is sufficient for informed consent, it would be sufficient to meet the standard of an “agreement, confirmed in writing.” 4 Coleman v. Coleman, 2013 WL 5308013 (Tenn. Ct. App. Sept. 19, 2013). 5 ABA Formal Ethic Op. 16-474 (2016). 6 See, e.g., Coleman v. Coleman, 2013 WL 5308013, at *2 (Tenn. Ct. App. Sept. 19, 2013) (referral fee of 10% of referee firm’s receipts from client).
November 2019
DICTA
13
L E G A L U P DAT E By: J. Nikki Price
General Counsel, Lincoln Memorial University1
MAKING A SUPREME COURT CASE: STUDENTS FOR FAIR ADMISSIONS, INC. V. PRESIDENT & FELLOWS OF HARVARD COLLEGE (HARVARD CORPORATION) On September 30, 2019, U.S. District Court Judge Allison D. Burroughs issued her opinion in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, upholding Harvard’s admissions program and likely setting the stage for another Supreme Court review of the constitutionality of race-conscious admissions programs in higher education.2
1
History and Evolution of Race-Conscious Admissions Programs In 1978, the Supreme Court struck down an admissions program that set aside a specific number of seats for racial minorities in an incoming class, finding that quotas violate the Equal Protection Clause.3 The Court, however, acknowledged the necessity of raceconscious admissions programs and held that race could be used as a “plus factor” in an admissions program that considers the individual characteristics of each applicant.4 In 2003, the Court struck down an admissions program that automatically assigned minority applicants a set number of points based on their race.5 The Court held that the mechanical assignment of points based on race, without individual consideration of the applicant, violates the Equal Protection Clause.6 In a separate case, the Court upheld an admissions program that considered race as a “plus factor” but also was designed to enroll a “critical mass” of minority students.7 The Court concluded that the “critical mass” enrollment goal was permissible and did not amount to a quota because there was no fixed number or percentage of seats reserved for minorities.8 In its most recent decision on the topic, the Court upheld an admissions program that considered race as one of many factors in a holistic review of each applicant’s file.9 The Court clarified the strict scrutiny analysis for race-conscious admissions programs, requiring a university to prove that: (1) the purpose of its race-conscious admissions program is constitutionally permissible and substantial, and that the use of race is necessary to achieve that purpose; (2) its program does not utilize quotas, evaluates each applicant as an individual, and does not unduly harm one race; and (3) race-neutral alternatives are insufficient to achieve the university’s purpose for its program.10 Background of This Case Harvard’s admissions program assesses each applicant’s characteristics and scores applicants using a defined rubric and rating scale.11 Applicants may receive a “tip” in their overall admissions score for qualities such as diversity, leadership skills, creative ability, etc.12 Admissions decisions are not based on any formula; rather, decisions are based on a thorough, multi-person review of each applicant’s individual qualities, followed by a committee discussion regarding each applicant.13 Students for Fair Admissions, Inc. (“SFFA”)14 sued Harvard on November 17, 2014, alleging that Harvard’s admissions process
14
intentionally discriminates against Asian-Americans; employs racial balancing; uses race as a factor for admission rather than as a “plus factor”; and fails to use race-neutral alternatives. 15 The District Court’s Opinion16 The court found that Harvard proved that the purpose of its race-conscious admissions program is to create a diverse student body, which is necessary to achieve Harvard’s mission to prepare its students for leadership roles in a multi-cultural, multi-national society. Finding that Harvard demonstrated a constitutionally permissible purpose for its program, the court then determined that the program was narrowly tailored to achieve that purpose. The court noted the holistic nature of the program and found that the “tip” provided to minorities in the overall score is merely a “plus factor” and not a quota because there is no set quantifiable measure for the tip. Additionally, the court found that the program did not unduly burden Asian-American applicants more than white applicants because the “tip” resulted in only a slight statistical difference in admissions between the two groups. The court agreed with Harvard’s expert that none of the raceneutral alternatives presented by either side are workable because they would reduce African-American and Hispanic student matriculation, negatively impact the student experience, or create an undue administrative burden for Harvard.17 Finally, the court held that Harvard did not intentionally discriminate against Asian-American applicants, finding no evidence of racial animus or prejudice expressed by Harvard. Although the court held that Harvard’s race-conscious admissions program is constitutional, the court suggested that the program could be improved and reiterated Harvard’s obligation to continue monitoring the fairness and necessity of its program.18 The court noted that affirmative action policies, while limited in duration, are necessary so long as the “effects of entrenched racism and unequal opportunity remain obvious.” The court acknowledged that even the most narrowly tailored race-conscious admissions programs will penalize non-minorities to some extent, but avowed that such penalty is necessary to achieve the benefits brought about by increased diversity. Forecast Because SFFA’s stated mission is to challenge race-conscious admissions programs, SFFA will undoubtedly appeal the district court’s decision and seek Supreme Court review if unsuccessful on appeal.19
DICTA
(Continued on page 15)
November 2019
MAKING A SUPREME COURT CASE: STUDENTS FOR FAIR ADMISSIONS, INC. V. PRESIDENT & FELLOWS OF HARVARD COLLEGE (HARVARD CORPORATION) (Continued from page 13)
The views and opinions expressed in this article are those of the author and do not necessarily reflect the views or opinions of Lincoln Memorial University. The author would like to thank Brennan Wingerter for her editing assistance. 2 See Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (Harvard Corp.), No. 14-cv-14176-ADB, 2019 WL 4786210 (D. Mass. Sept. 30, 2019). 3 See generally Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978) (plurality opinion). 4 Id. 5 See generally Gratz v. Bollinger, 539 U.S. 244 (2013). 6 Id. 7 See generally Grutter v. Bollinger, 539 U.S. 306 (2003). 8 Id. 9 Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198 (2016). 10 Id. 11 Supra n.2. The rubric includes four profile ratings; three school support ratings; ratings for additional recommendations; and an overall rating. Ratings range from 1-6, with 1 being the strongest rating. 12 Supra n.2. Harvard refers to these qualities as “distinguishing excellences.” Tips are largely provided to minorities and ALDCs (recruited athletes, legacies, applicants on the dean’s and director’s list, and children of Harvard employees). 13 Supra n.2. Decisions are made by the full admissions committee by in-person majority vote. 14 SFFA’s website states that its membership consists of “more than 20,000 students, parents, and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional.” See generally https://studentsforfairadmissions.org/about/ (last visited Oct. 10, 2019). 15 On the same day, SFFA filed a similar lawsuit against the University of North Carolina-Chapel Hill alleging discrimination against white students. See generally https:// studentsforfairadmissions.org/updates/page/4/ (last visited Oct. 10, 2019). 16 Supra n.2. 17 The proposed alternatives included place-based quotas; eliminating standardized test scores; admitting more transfer students; expanding recruiting efforts and financial aid; eliminating tips for ALDCs; eliminating the early admission program; and eliminating tips for minorities and ALDCs and providing tips to economically disadvantaged students. 18 Suggestions included implicit bias training for admissions officers; guidelines for assessment of race; and conducting statistical analysis of race and informing admissions officers of any disparities. 19 SFFA’s President, Edward Blum, also serves as Director of the Project on Fair Representation, the non-profit legal defense group that funded Shelby County’s challenge to the Voting Rights Act and Abigail Fisher’s challenge to the University of Texas’ admissions program. See generally https://www.projectonfairrepresentation.org/ (last visited Oct. 10, 2019). 1
November 2019
DICTA
15
A CAR WRECK IN A BANK: THE BUTCHER BANK COLLAPSE AND THE KNOXVILLE BAR On November 1, 1982, the day after the 1982 World’s Fair closed, agents with the Federal Deposit Insurance Corporation (FDIC) moved into Knoxville and began simultaneously auditing the Butcher brothers’ banks. The agents had to wait until the fair closed because Knoxville did not have enough hotel vacancies. They discovered millions of dollars of shady deals, insider loans, forgeries, and fraud.
Cover photo credit: digital.lib.utk.edu
On Valentine’s Day 1983, Jake Butcher’s United American Bank of Knoxville was declared insolvent and FDIC agents padlocked the doors. With the Butchers’ assets frozen, bank after bank failed with no cash to support the worthless loans. The unraveling began. Eight banks totally collapsed with deposits of approximately $1.5 billion. Several others collapsed, in part, because of actions of the Butchers.
Not your typical Bar The Knoxville Bar prides itself on its collegiality and civility. It is not your typical bar. According to Bob Campbell2, those values have been a constant since at least 1956, when he began practicing law. After the bank collapse, lawyers and law firms from Nashville, New York, and
Chicago swarmed on Knoxville to represent various clients. They did not know what they were in for. “We changed them,” said Larry Leibowitz3 of the out-of-town attorneys that were not accustomed to the way Knoxville attorneys practiced law. It was foreign to them that the lawyers would travel together to depositions, hearings, and other pretrial matters.
The Butchers’ bank collapse is one of the largest in the history of the FDIC, resulting in nearly $1.1 billion in exposure due to the questionable loans taken on by the agency. In the aftermath, the FDIC sued 34 former bank officers and directors of the United American Bank for more than $200 million and referred more than 150 cases of possible wrongdoing to the Justice Department for investigation.
There were other customs that their out-of-town colleagues had to get used to. Knoxville attorneys famously did not provide deposition notices. In fact, according to Bernie Bernstein4, young lawyers were told that they were not supposed to notice depositions. It was “almost offensive” noted Chattanooga attorney Charlie Gearhiser5 after noticing a deposition to opposing counsel. The hard-charging out-of-town attorneys were shocked.
The litigation entangled dozens of lawyers and law firms in Knoxville. I have always been interested in the breadth of the involvement of the Knoxville Bar in the bank litigation and wanted to write about the legacy of the collapse on the Bar and how it shaped the lawyers involved. November marks 37 years since the first raids on the Butcher banks, and I wanted to retell the story through the eyes of the lawyers that were involved. In September, I had the opportunity to speak to some of them1. Many were young lawyers at the time and are now legends of the Bar. Admittedly, it is a challenge to capture a two-hour conversation in 1500 words. I am sure that there is much I have omitted. Likewise, I was not able to attribute each quote to each person. I hope you will forgive me.
For all of the changes that they faced, procedurally and culturally, one welcome change was the federal judiciary in the Eastern District. Newly appointed Judge Leon Jordan presided over several of the cases and was described as a “hero” by one New York lawyer because he faced 15 lawyers and new motions every day and was always prepared and fair. He made the courtroom a comfortable place to be, something that many of them were not accustomed to. Lawyers from the New York firm Davis Polk, who practiced in courtrooms all across the country, expressed amazement at the quality of the judiciary in the Eastern District. One lawyer told Bob Campbell that the Eastern District magistrate judges were better than their Article III judges.
16
DICTA
November 2019
COVER STORY By: Luke P. Ihnen
London Amburn, P.C.
Dale Amburn8 called it “the best education a young lawyer could have.” It included not only learning new issues of the law, but getting to learn from some of Knoxville’s finest lawyers. Many of those young lawyers are now founders, partners, or shareholders of Knoxville’s largest law firms.
The Legacy The 1982 World’s Fair was Knoxville’s greatest showcase moment since the 1910 Appalachian Exposition. That Knoxville even secured the World’s Fair was, in large part, thanks to Jake Butcher’s charisma, ambition, and vision. Never one to miss an opportunity, he also helped bankroll it with a $30 million unsecured loan. That was the dichotomy of Jake Butcher. It was also his tragedy. Of course, the greatest tragedy happened to the customers of the banks. The impact was far larger than anyone expected and some families have still not recovered. The bank collapse also eliminated the capital source for many private developers that intended to renovate the World’s Fair site, which languished for years afterward.
“The best education a young lawyer could have” The Bar was smaller in the 1980s, with a few large firms handling a high percentage of the work. But the sheer number of representations and conflicts involved in the bank litigation forced many young lawyers into action they otherwise would not have gotten. Bernie Bernstein and Tom McAdams6 had a chart in their conference room identifying all the various conflicts between bank officers and directors so that they could determine who they could and couldn’t represent. Some law firms had 20-25 clients at a time involved in the same case. The bank litigation also presented unique issues for the Bar. Lawyers were forced to learn areas of the law that they had never been exposed to “on the fly.” “It’s a car wreck in a bank,” they were told. Knoxville’s lawyers rose to the moment. Bob Campbell had 1 year of accounting as a freshman at the University of Tennessee and defended Ernst and Whinney in a $600 million lawsuit over accounting. Betsy Tonkin7 had never heard of a Loan Participation Agreement before having to litigate over one.
As I listened to the stories of these lawyers, I wondered if the Bar could rise to a similar challenge today. With the practice of law becoming more specialized, are we equipped to learn new issues and respond on the fly? Would we even care to? The lawyers in the bank litigation were also stubbornly steadfast in their collegiality and civility. They showed lawyers from other parts of the country a new way to practice law – the “Knoxville way” – and set the example for a new generation of lawyers. Are collegiality and civility still values stubbornly practiced by the Bar? I like to think so. Still, sometimes it is easier to get caught up in the heat of litigation rather than letting cooler heads prevail. Sometimes the bottom line and the billable hour replace opportunities for mentorship and training. I think that is what makes the example set by these lawyers all the more impressive. There is no doubt that Jake Butcher left a legacy on the City of Knoxville. I think that the lawyers involved in the banking litigation left a legacy on the Knoxville Bar, and we are all better for it.
1
2
F
ew had any experience in bankruptcy court and the rules that were strictly enforced by the judge but, nonetheless, they represented individuals and corporations in the largest bank collapse in the nation’s history.”
3
4
5
6
7
8
A special “Thank You” to Bernstein, Stair & McAdams for hosting our conversation and for the lawyers that participated. They include: Archie Carpenter, Bob Campbell, Betsy Tonkin, Jack Wheeler, Dale Amburn, David Buuck, Ronald Koksal, George Morton, Bernie Bernstein, Larry Leibowitz, and Tom McAdams. Bob Campbell is Of Counsel with the Hodges, Doughty & Carson firm. He was local counsel for Ernst & Whinney and participated in the longest trial in the history of the Eastern District at ninety-nine (99) days. Larry Leibowitz founded the law firm of Leibowtiz & Cohen, now Leibowitz Law Firm, PLLC. Bernie Bernstein (Retired) founded Bernstein, Stair & McAdams LLP in 1959 and practice with the firm for fifty-five (55) years. Charlie Gearhiser was a founder of Gearhiser, Peters, Elliott & Cannon, PLLC. He passed away on June 17, 2013. Tom McAdams is a partner with the law firm Bernstein, Stair & McAdams, LLP, where he has practiced since 1977. Betsy Tonkin (Retired) is a former Assistant United States Attorney for the Eastern District of Tennessee. Dale Amburn is a founder and shareholder of the law firm London Amburn, P.C.
The “education by fire” required them to wear many different hats. In one case you might be defending a bank director, in another you were suing an insurance company, and in another you were trying to avoid a collections action. Few had any experience in bankruptcy court and the rules that were strictly enforced by the judge but, nonetheless, they represented individuals and corporations in the largest bank collapse in the nation’s history. November 2019
DICTA
17
AROUND THE BAR
AND THE SURVEY SAYS… KBA’S ECONOMICS & LAW PRACTICE MANAGEMENT SURVEY The survey had two primary objectives: (1) To provide timely, relevant and accurate information to inform and guide practical management and planning decisions by local attorneys, including private and non-private practitioners, judiciary and government workers, and (2) To monitor key trends within the legal profession. METHODOLOGY The 2019 Knoxville Bar Association Economics and Law Practice Membership Survey was submitted electronically to 1,554 bar members and the survey was open between August 19 to September 13, 2019. Two hundred and ninety-seven members began the survey and approximately 278 completed the survey in full for a response rate of about 18.5%, meaning we can have high confidence that the survey responses reflect the demographics and economics of the Knoxville legal community overall. The survey was designed jointly by the Knoxville Bar Association and the ABA Division for Bar Services. The data collection and analysis were handled by the ABA Division for Bar Services. The results were filtered throughout the survey by several categories of respondents. Below is a list of the categories as well as the number of respondents in each category. YEARS OF EXPERIENCE Less than 5 years - 50 6-10 years - 37 11-20 years - 63 21-30 years - 49 Over 30 years - 91 EMPLOYMENT SETTING Private practice - 228 Government lawyers/judiciary - 22 Others - includes for-profit corporation or business (in-house counsel), for-profit corporation or business (non-legal), legal aid/legal services, retired and currently unemployed - 43 FIRM SIZE 5 or fewer attorneys - 100 6-20 attorneys - 62 21+ attorneys - 66 SURVEY RESULTS The report that follows details the results for each survey question, including filters based on years of experience, employment setting and firm size where appropriate. Below are some highlights from the findings. Note that these are derived from the overall results and do not address the findings based on the filters. DEMOGRAPHICS -Almost half of respondents are over 50 years of age -63% are male -One-third have been practicing over 30 years -40% have been members of the KBA for at least 20 years CURRENT POSITION/PRACTICE SETTING -77% are in private practice -44% are in a practice with 5 or fewer attorneys YOUR LEGAL PRACTICE -15% devote 60 hours or more to the legal profession in a typical week -Client expectations and work-life balance have the most impact on the ability to successfully practice law -Almost 60% report experiencing an increase in clients having a higher level of expectations compared to the past -The issues causing the most concern are keeping current in the practice of law (3.98 concern level on a scale of 1-5), earning a living (3.98) and balancing work and personal issues (3.93) -56% would pursue the legal profession as a career if they were making the decision again (28% are not sure) -The most commonly used resource for advice regarding a legal matter is other lawyers in similar practice areas (76%)
18
-83% percent spend at least an hour per week on volunteer work, with 20% spending 6-10 hours per week -The average number of pro bono hours completed in 2018 was 34.6 hours HOURLY BILLING/BILLABLE HOURS -80% had billable hours in 2018 -23% had 1,000 billable hours or fewer; 15% had 1,801-2000 billable hours -77% charge on an hourly basis -50% have an average or standard hourly rate of $250 or more -About half have increased their rate over the past two years, and 40% plan to increase their rate in 2020. CLIENT BILLING AND FEES -62% indicate they always keep time records -The most frequently used billing method is an hourly rate (69%) -67% always use written fee agreements, retainer letters or contracts -About half accept credit cards as payment for services FIRM OR LEGAL OFFICE PRACTICES -64% have adjusted billing rates within the last year -30% have renegotiated office leases within the last year -47% have a strategic planning committee; 46% have a pro bono policy; 58% have a succession plan -29% have cyber liability insurance TECHNOLOGY -62% utilize an outside consultant or technology support group for technology or cyber-security assistance -58% would like the Knoxville Bar Association to provide cyber-security programs or resources -Almost half (46%) indicate they do not use a practice management application -Dropbox (30%) is the most frequently used document management system -Westlaw (51%) and LexisNexis (41%) are the most frequently used online legal research tools BUDGET/FINANCES -17% had at least $100,000 in educational debt upon graduation from law school -29% had no debt, and 23% had less than $25,000 in debt -57% of the legal office or law firm’s gross receipts are attributed to all lawyer compensation, 21% to support staff compensation, and 23% to other expenses -60% anticipate their technology budget will increase in 2020 COMPENSATION AND BENEFITS -89% of employers offer paid bar dues to attorneys PARALEGAL/LEGAL ASSISTANTS -71% employ paralegals -28% have standards or required certifications for the paralegals/legal assistants they employ -44% of paralegals/legal assistants have their service billed at $81-$100 per hour -32% of paralegals/legal assistants billed 500 or fewer hours during 2018 KNOXVILLE BAR ASSOCIATION -85% are satisfied (65% “very” and 20% “somewhat”) with the services the KBA provides -53% prefer receiving the print format of DICTA, 19% prefer the electronic format, and 20% prefer to have access to both -The most frequently used aspects of KBA membership during the past year were live CLE courses (71%), Attorney’s Directory (77%) and social events (43%). -43% rate the KBA as excellent in its encouragement and accomplishment of diversity initiatives and 31% rate it as good -29% never visit the KBA website during a typical month; 51% visit once or twice a month -Content and speakers are the most important factors when deciding to attend a CLE program To view the complete survey results which are filtered based on years of experience, employment setting and firm size, you must log in to the KBA website. Click on https://www.knoxbar.org/index.cfm?pg=Survey2019.
DICTA
November 2019
VITE ET CREDE By: Melissa B. Carrasco
Egerton, McAfee, Armistead & Davis, P.C.
ALL BLOOD RUNS RED In the foothills of the Vosges Mountains, lies forty-eight acres in Dinozé, France. With the Moselle River winding about one hundred feet below, the inhabitants and visitors to this plot are able to enjoy the peace and quiet of the countryside. Indeed, it is quiet, but it has not always been so. The 5,251 white crosses standing side-by-side, row after row, against the dark mountains are a stern reminder that peace is costly. The Epinal American Cemetery and Memorial was established in October 1944, by necessity. The United States needed a place to bury its dead after the bloody fighting in and around the Saverne Gap as simultaneously, the French and American forces began pushing back the German defenses shortly after D-Day and through the bitter winter of 1944-1945. There simply were too many heroes killed in too short of a time to be able to bring them all home.1 You can find my great-uncle, Pvt. Douglas Payne Houck, buried there in Plot A, Row 38, Grave 20. He was my grandfather’s youngest brother – the youngest of nine children: eight brothers and one sister. My grandfather, Mitchell Houck, and all seven of his brothers served in World War II in the Navy, Army, and Marine Corps. As the youngest, Uncle Doug was the last to join. He enlisted in the Army in 1944, shortly after D-Day, and he served with the 410 Infantry Regiment, 103rd Infantry Division. They were sent to France only a few months later.
While he was recuperating, he learned about the French flying service. He bet his friend $2,000, that he, a black American, could enlist, and he won that bet. In November 1916, Bullard enlisted in the Aéronautique Militaire. By May of 1917, he had earned his wings and began flying combat missions. His plane bore a picture of a dagger through a heart and the phrase, “All Blood Runs Red.” When the United States joined the war in 1917, Bullard tried to join the U.S. Air Service, but he was denied. The decision-makers said only officers could fly planes, and Bullard was an enlisted man, albeit an enlisted man who had already flown twenty combat missions. Most of the accounts blame racial prejudice, such as that evidenced by the Linard Memo,4 for the rejection. Soon after, the French commanders removed him from air duty and returned him to the infantry, where Bullard served until the end of the war. He returned to Paris, married a countess, and opened a jazz club – Le Gran Duc. He met Josephine Baker and F. Scott Fitzgerald. Some say Ernest Hemingway based a character on him. Just before World War II broke out, his nightclub became a popular hangout for Nazi sympathizers who, after a few drinks, spilled their plans to Bullard who, in turn, shared them with the French Resistance. After WWII began, he re-enlisted as a machine gunner, and fought bravely to defend Paris, until he was severely wounded by an artillery attack.
He was killed by a German sniper on January 25, 1945, at the age of twenty-six. Uncle Doug left behind his young wife, my Aunt Bonnie, and my three cousins, Mickey, Bonnie Faye, and Douglas Pamela (“Pam”), named after her daddy, and born seven months after he died.2 What Uncle Doug did not know, when he first set foot on French soil, was that another American hero was serving with the French troops just a few miles north of him. In 1895, Eugene Bullard was born just outside of Columbus, Georgia. Life was not easy for the son of a former slave just thirty years after the end of the Civil War. Some accounts say that that his dad survived a lynching. Around the age of eleven, Eugene ran away from home. By the time he was sixteen, he had boarded a ship bound for Hamburg, Germany seeking a better life. Instead of Hamburg, Bullard ended up in Scotland, and then in France. It was 1912, and within two years, the world would be at war. When Germany invaded France, Bullard joined the French Foreign Legion, because non-French citizens were not permitted to serve in the regular military. In 1916, he and the 170th Infantry Regiment were sent to Verdun, France, after German troops were discovered on the other side of the Meuse River. What ensued was the Battle of Verdun – one of the longest and bloodiest battles of WWI. It lasted for over ten months, with more than 300,000 casualties on both sides.3 During the battle, Bullard was ordered to carry a vital message to another French regiment. He was seriously wounded in the November 2019
process, but the troops managed to get him to safety in Lyon. He was later awarded the Croix de Guerre for his bravery, a French award recognizing heroism for foreign citizens.
He managed to flee France and eventually made it to New York. In total, France awarded him fifteen medals for his service in WWI and WWII. He was selected as one of the three veterans to light the flame at the Tomb of the Unknown Soldier in Paris. He was made a Knight of the Legion of Honor – the highest honor bestowed by France. In New York, he was told to sit at the back of the bus. Eventually, he found work as an elevator operator, which was his occupation until he died in 1961. Today, he is known as the “first known Negro military pilot” at least that is what he put on his business cards. Thirty-three years after his death, the U.S. Air Force posthumously commissioned him as a Second Lieutenant. He is still a celebrity in France, and now the Smithsonian Air and Space Museum has an exhibit in his honor.5 It is fitting that Veterans Day falls two weeks before Thanksgiving. Regardless of our circumstances, our veterans remind us that we have many reasons for gratitude. There are 5,251 reasons in Epinal, and hundreds of thousands of reasons still walking among us. Make sure you take the time to see these veterans, to let them know that you see them, and to thank them before it is too late. Because seeing is believing.
DICTA
(Continued on page 20)
19
barrister bullets BARRISTER ELECTIONS & HOLIDAY PARTY The Barristers are seeking nominations for the following officers to serve in 2020: • Vice President • Secretary/Treasurer • (2) At-Large Executive Committee Seats Please notify Leslie Rowland (lrowland@knoxbar.org) by Monday, November 4th, if you would like to nominate someone or are interested in running for a Barristers office. Please note that the person elected Vice-President in December will automatically become the Barristers President for the 2021 bar year. Candidates must be current KBA members. Additionally, please mark your calendar to attend the December 11 Knoxville Barristers annual meeting, elections and holiday party at the Bistro at the Bijou. We’ll be electing Vice President, Secretary/ Treasurer, and the two At-Large Executive Committee seats. Even if you can’t stay for the whole party, make sure to drop in before 5:15 p.m. to be able to vote. There is no need to RSVP just stop by, have a drink on us, grab some refreshments and help shape the future of our profession and community. BARRISTERS MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month at the Bistro by the Bijou (807 South Gay Street). Social time begins at 5:00 p.m., and the meetings begin promptly at 5:15 p.m. The next meeting will be held on November 13, 2019. There are many opportunities to get involved, and you are encouraged to contact Barristers President Mikel Towe (mtowe@lewisthomason.com) or Vice President Allison Jackson (ajackson@emlaw.com) for more information.
attorneys and law students from a diverse range of backgrounds with an excellent networking opportunity. Two (2) complimentary drink tickets will be provided while supplies last. Click on November 7 in the Event Calendar at www.knoxbar.org to RSVP. Your RSVP is requested by November 4th. VETERANS’ LEGAL ADVICE CLINIC The Veterans’ Legal Advice Clinic is a joint project of the KBA/ Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox County Public Defender’s Community Law Office, the University of Tennessee College of Law, Lincoln Memorial University- Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. We serve approximately twenty to thirty veterans each month who have a variety of legal issues, including, but not limited to, family law, landlord/tenant, bankruptcy, criminal defense, consumer protection, contract, child support, and personal injury issues. We need attorney volunteers for the next two (2) clinics, which will be held on November 13 and December 11 from 12:00 to 2:00 p.m. at the Knox County Public Defender’s Community Law Office (1101 Liberty Street). Register to participate by clicking on November 13 and December 11 in the Event Calendar at www.knoxbar.org. VOLUNTEER BREAKFAST The Volunteer Breakfast is a Barristers project. On the fourth Thursday each month at 6:15 a.m., the Barristers’ and their volunteers serve breakfast to individuals participating in the services of the Volunteer Ministry Center. If you are interested in sponsoring a breakfast or volunteering to prepare and serve breakfast in 2020, please contact Matthew Knable at knablelaw@gmail.com.
DIVERSITY MIXER The Barristers Diversity Committee invites you to attend its Annual Diversity Mixer on November 7, 2019, from 6:00-8:00 p.m. at the Pretentious Beer Company (131 S. Central Street). This event is focused on building community, so there will be no educational program, no keynote speaker, and no lecture. The event will provide
ALL BLOOD RUNS RED
Address Changes
(Continued from page 19)
1 You can learn about the Epinal American Cemetery and Memorial and the twenty- five other U.S. military cemeteries and thirty memorials located around the world by visiting www.abmc.gov. 2 For more information about Pvt. Douglas Payne Houck and the soldiers who served with him, visit the 103rd Memorial Message Board at www.ancestry.com. 3 For more information on the Battle of Verdun, and some helpful maps, photographs, and narratives, visit www.britannica.com. 4 The Linard Memo was drafted by a joint French-American Committee and was intended to advise French officers on how to interact with Black American troops by stating that Americans required an, “inexorable separation between blacks and white” and informing the French officers that, if they did anything different, it would offend the white American troops. You can read the Linard Memo at this link: http://credo.library.umass.edu/view/full/mums312-b218-i073. 5 You can learn more about Eugene Bullard’s incredible story by reading his memoir, “All Blood Runs Red,” or consulting the following sources: Cori Brosnaham, The Two Lives of Eugene Bullard, American Experience, available at www.pbs.org; Rupert Cornwell, Rise and Fall of Black America’s First Fighter Pilot, Independent (Mar. 3, 2013), available at www.indepedent.co.uk.; Dominick Pisano, Eugene J. Bullard, Smithsonian National Air & Space Museum, available at www.airandspace. si.edu; All Blood Runs Red, Recorded History Podcast (Mar. 4, 2018) available at www.recordedhistory.net.
20
Please note the following changes in your KBA Attorneys’ Directory and other office records: Cynthia L. Gibson BPR #: 030024 Bush Brothers & Co. 1016 E. Weisgarber Rd. Knoxville, TN 37909-2669 Ph: (865) 602-6283 cgibson@bushbros.com LuAnn A. Hileman BPR #: 032169 Melrose Title Company 7823 Montvue Center Way Knoxville, TN 37919-5575 Ph: (865) 694-1400 luann@melrosetitleco.com
DICTA
Esther L. Roberts BPR #: 021666 Knox County Sessions Court 400 Main Street SW, M69 Knoxville, TN 37902-2405 Ph: (865) 215-2146 Esther.roberts@knoxcounty.org
November 2019
November 2019
DICTA
21
TIME OUT By: Judge Steven C. Hornsby, JD, CLC Your Conscious Life Coaching+Consulting steve@judgehornsby.com
WELL-BEING: FROM SURVIVING TO THRIVING It was 2008 when I realized that my life consisted of sprinting from one crisis situation or critical deadline to another. I was in a high stress, high profile leadership position in state government with major responsibilities and the ever-present eyes of the media, state legislators and interest groups on everything we did. I told a colleague that it felt like we were earning degrees in “Crisis Management and Damage Control” where every day was a pop quiz, our scores were published in the newspaper, and we had no idea when or if graduation would occur.
My personal life had undergone a major upheaval with a divorce from my wife of 25 years who was also my law partner. Intellectually, I knew that divorce was the best thing for both of us, but that was little comfort to the emotional pain, family turmoil, social and financial disruption it generated. I was doing nothing to take care of myself and my alcohol intake had become a daily routine as a way to “relax.” I had practiced meditation for decades, but that had decreased for several years as the amount of busyness increased. Needless to say, this was NOT the plan I had for my life at age 54. Instead, Life was bringing things to my attention, up close and personal. I remember thinking, “I’m barely surviving … there HAS to be a better way. I want to THRIVE, not just survive.” So, I took David Bowie’s advice and “turned myself to face me,” stared long into the mirror, swallowed real hard, and made a commitment to change the way I was living.
the life-diminishing habits, Life expanded into panoramic technicolor. I had more moments of “flow” which was often accompanied by periods of happiness and joy. Something in me had shifted in a decidedly better direction. Resuming daily meditation, reading and reflection improved my inner peace and calmness which reduced anxiety, and improved my mental clarity, focus and emotional intelligence. Creativity became more robust, which directly benefitted my career and made work more like play. Interesting new friends and places to go that were stimulating and just plain fun brought more texture and color to life. I took an art class (acrylic painting) and was shocked to discover how much I enjoyed it! My body responded well with weight loss, a return to normal blood pressure, and much more energy. For years I had been a very driven, typical Type A personality. However, it began to dawn on me that Life really is so much more than career, achievements, possessions, money, and staying “comfortable”. And while life’s challenges didn’t completely disappear, I adopted a ‘learner’s mind’ and felt better equipped to handle and learn from them. 1. OCCUPATIONAL Cultivating personal satisfaction, growth, and enrichment in work; financial stability. 2. EMOTIONAL Recognizing the importance of emotions. Developing the ability to identify and manage our own emotions to support mental health, achieve goals, and inform decision-making. Seeking help for mental health when needed.
It turns out that I wasn’t alone in my search for a better way of living. Scientific research in the fields of neuroscience, positive psychology and human growth and development has been increasing dramatically. The ABA Path to Lawyer Well-Being and the Well-Being Toolkit draw upon this accumulating research and defines lawyer wellbeing “… as a continuous process whereby lawyers seek to thrive in each of these seven domains: emotional health, occupational pursuits, creative or intellectual endeavors, sense of spirituality or greater purpose in life, physical health, and social connections with others.”
3. PHYSICAL Striving for regular physical activity, proper diet and nutrition, sufficient sleep, and recovery; minimizing the use of addictive substances. Seeking help for physical health when needed. 4. INTELLECTUAL Engaging in continuous learning and the pursuit of creative or intellectually challenging activities that foster ongoing development; monitoring cognitive wellness.
Over the next year, I began making lifestyle changes that were more life-affirming and supported a new vision for how I wanted to experience Life: • resumed a daily mindfulness practice with time for spiritual reading, writing and reflecting (spiritual and emotional);
5. SPIRITUAL Developing a sense of meaningfulness and purpose in all aspects of life.
• got outside into nature more often, gave up alcohol, started eating better, began getting massages every month, (physical):
6. SOCIAL Developing a sense of connection, belonging, and a welldeveloped support network while also contributing to our groups and communities.
• expanded my social circle to include more people with diverse interests, including a wonderful woman who would eventually become my wife (social and emotional); • decreased substantially the amount of television I watched, began reading for fun and growth, and tried new creative pursuits (intellectual and creative); • researched, learned and began implementing innovative approaches to team-building and creating a positive organizational culture at work (occupational); and, • took on a personal life coach to help me sort things out, discard what I didn’t want anymore, and start moving in the right direction.
22
I began seeing positive results almost immediately. By replacing
When I “turned myself to face me” in 2008 and made the choice to thrive instead of survive, I had no idea that I was embarking on a ‘multi-dimensional approach’ that would later show up as an ABA ‘Path’ or ‘Toolkit.’ If you or your law firm has not taken a serious look at the ABA Path to Lawyer Well-Being and Toolkit, I strongly encourage it. They make a clear case that our well-being is an essential part of our duty of competence. If we aren’t taking care of ourselves, how can we take care of our clients? But even more importantly, this is your one precious and unique opportunity to experience Life in all its fullness. Aren’t YOU worth it?
DICTA
November 2019
BAR HOPPING By: Julia Hale
Lewis, Thomason, King, Krieg & Waldrop, P.C.
Back for 2019, Bar Hopping highlights one of the many beautiful courthouses around the state. The trick? It is up to you to figure out where. Congratulations to Larry Dillon for correctly identifying the Howard H. Baker, Jr. United Sates Courthouse. Think you can name this courthouse? Email jhale@lewisthomason.com with your answer. Correct answers will receive a shout-out in the next issue of Dicta. Check back next month for the reveal and a list of the big winners. Have a photo that you would like to submit? Send me an email and have it featured in an upcoming issue.
November 2019
DICTA
23
B I L L & P H I L’ S G A D G E T O F T H E M O N T H By: Bill Ramsey Neal & Harwell
By: Phil Hampton
Founder and CEO, LogicForce Consulting
SAMSUNG GALAXY NOTE 10 PLUS Phablets are back, baby; and we couldn’t be more excited. Extra large smartphones, dubbed phablets, have gone in and out of favor over the past several years ever since Samsung debuted its 5.3-inch (huge for that time) Galaxy Note device in 2012. Back then, we were incredulous. Who would carry such a monster phone, much less use it? Little did we know that the 5.3-inch form factor would be smallish by today’s standards. Since then, many phone makers have jumped on the phablet bandwagon. Even Apple now carries a 6.5-inch phablet known as the iPhone 11 Pro Max (the “Max” means it’s big). But nobody does a phablet like the original phablet-maker, Samsung. So, we were tingling with anticipation as Samsung recently unwrapped its latest creation, the Galaxy Note 10 Plus (the “Plus” means its huge). The Note 10 Plus breaks the size record, coming in at 6.8 inches. Since we’re on the Galaxy renewal program, we readily traded in our Galaxy S9 for this new monstrosity; and we have been incredibly impressed, not just because of the size, but because of everything else in this phone.
We especially love the new app called “Your Phone” that works in tandem with the Note 10 Plus. With this app installed on the phone, you can link the smartphone to your Windows PC. With the app linked, you can access content from your phone directly on your PC, such as text messages and photos, and can also get notifications from your phone on your PC. This linkage with Microsoft Windows is incredibly convenient, allowing you to work continuously on your PC in the office and still respond to notifications and texts on your phone without having to pick the phone up.
We really love the 6.8” edge-to-edge infinity screen. Maybe it’s because of our aging eyes, but we find the larger screen much more accommodating as we compose, browse, text, and read content on our phone. We also love that Samsung has moved the fingerprint reader (which we use to unlock the screen as well as to log in to many of our apps) to the front of the device (on the screen) which is not only more convenient, but keeps us from accidentally smudging the camera lens on the back of the phone. Like the latest iPhone and Galaxy S models, the Note 10 Plus has three rear cameras; a main camera, a telephoto lens, and an ultra-wide lens camera. Extra options for photos and videos, like live focus and steady mode, allow us to appear to know how to take professional photos and videos even though we have no clue about photography. The live mic feature which allow you to zoom in on an audio source as you zoom the video camera is quite nice. We have experimented somewhat with the cameras and all the various settings, and we are quite impressed with the photos we have been able to create.
24
However, we still have not found a setting to make us look as cool as we think we should look. Of course, the Note still has its signature S-Pen which has been re-designed from previous models but still is a very convenient way to take notes on the phone. There are also new air gestures that you can use the S-Pen for like browsing photos or skipping to the next audio track. But, despite all the new cool S-Pen features, we still use it mostly for jotting down hand-written notes on our phone using our favorite note-taking app, OneNote. The S-Pen is one unique feature of the Note family of devices that really sets the Note apart.
Of course, the battery life is improved on the Note 10; and the recharging time is incredibly speedy. We have not even begun to run out of battery in a normal workday. Samsung has even added the ability to charge other accessories (like a Galaxy smartwatch or earbuds) just by touching them to the Note 10 Plus. Now, the significant downside to the Note 10 Plus is the hefty price, which starts out at a little over $1,000 if you purchase it outright. Carriers, of course, offer incentives to ease the pain somewhat; but there is no doubt that the Galaxy Note 10 Plus is a premium phone for power users. If you just need a smartphone to get by, there are certainly better, more economical options for you. But, if you are like us and want a smartphone that is a contender for the top phone in the market prize, we think the Note 10 Plus is a solid competitor.
DICTA
November 2019
WELL READ By: Matthew J. McClanahan
G. Keith Alley, P.C.
CROSSING THE AISLE In his latest book Crossing the Aisle: How Bipartisanship Brought Tennessee to the 21st Century and Could Save America, Keel Hunt tells the story of Tennessee’s ascendance from a state languishing in poverty, urban decay, and failing schools into a hub of commerce, technology, and innovation and the home of many pro-sports teams. Hunt attributes this flourishment to Tennessee’s political leadership spanning from 1978 to 2010, describing it as an “in-between time” that separated the post-Civil Rights era of Democrat supermajorities and the present statewide Republican domination. This period was marked with events – competitive statewide general elections, state delegates becoming nationally prominent leaders (such as Al Gore, Jr., Howard Baker, Jr., Fred Thompson, and Bill First), and the state becoming the home to Nissan’s American assembly plants – all of which propelled Tennessee onto the national stage. Crossing the Aisle does not read as a classical history text, but as a story that unfolds through the voices of the characters themselves. It captures its readers through its vivid portrayal of clandestine meetings and larger-than-life personalities, pulled together in a humorous telling. It is a story of revival, indicating the bipartisan friendship of the young governor Lamar Alexander and then Speaker Ned McWherter formed during the “the coup” as an essential collaboration that facilitated Nissan’s attraction to Tennessee, instilling thousands with well-paid jobs. Another friendship, that between Bob Corker and Phil Bredesen, is featured, as well
– a riveting alliance that spun Chattanooga from being America’s “dirtiest city” to a thriving mecca with a vibrant downtown river walk. Many KBA members would also be particularly interested in the tale of 1982 World’s Fair, which gave Knoxville its distinguishing Sunsphere. Underlying these stories of effective government is the grand transition of Tennessee and the entire South from Democrat to Republican control. Experienced politicians of both parties put aside their differences to affect great policy change that would reverberate into Tennessee today. Neither side engaged in the current hype of hyper-partisan rhetoric, proving the value that emanates from a willingness to compromise. These politicians truly mirrored the grand Tennessee River that meanders through the East before dissecting the Middle and West – they flowed neither Right nor Left, but exactly where they were needed most. Jon Meacham, a Pulitzer Prize-winning historian and Chattanooga native, authors the foreword of the book. Meacham observes that Tennessee’s history of bipartisan cooperation to attract businesses, commitment to the smooth transition of power, and personal friendships across party lines provides a lesson for a nation that is increasingly beset by partisan rancor, gridlock, and mutual distrust. Through the work of pragmatic, results-oriented leaders, Tennessee improved its highways, schools, healthcare, and economy. Leaders of both parties showed a willingness to work together, stand up against wrong-headed party affiliates, and listen to the ideas of someone across the aisle. Such an ability and desire to listen with a nonpartisan ear is largely missing from the current political landscape. Known as the “Great Conciliator”, the late, great Howard Baker, Jr. served as the Senate Minority Leader, Senate Majority Leader, President Ronald Reagan’s Chief of Staff, and the Ambassador to Japan. Perhaps Senator Baker said it best when he observed, “You should always go through life working on the assumption that the other guy might be right.”
JUVENILE COURT STUFFED ANIMAL DRIVE KBA members generously donated stuffed animals through the KBA Juvenile Court and Child Justice Section’s recent toy drive. The Section, which is chaired by Mike Stanuszek and Justin Pruitt, collected several hundred stuffed animals for Knox County Juvenile Court. Hon. Tim Irwin of Knox County Juvenile Court uses the stuffed animals to calm children who appear in his courtroom.
November 2019
DICTA
25
YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris
Lincoln Memorial University Duncan School of Law
RESURRECTING CONGRESS – AND JAMES MADISON James Madison’s most fundamental contribution to our Constitution was the separation of powers into three branches. Each branch would check the other, because “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”1 Unfortunately, we have gradually abandoned this system of checks and balances, primarily through the creation of what is commonly called “the administrative state.”2 We have created agencies, at both the state and national levels, that legislate, execute, and even adjudicate. At the national level, agencies legislate through a complex “rulemaking” process, that results in regulations that have the force and effect of law. Congress need never be involved. Agencies execute these laws in a variety of ways, from permitting to enforcement. Agencies adjudicate disputes through “quasi-judicial” tribunals that operate without the check of juries. Presiding over these tribunals are administrative law judges (ALJs) who often merely recommend decisions to – you guessed it – the head of the agency involved. Final agency decisions may be appealed to the courts, but federal judges must typically uphold them because of something called “Chevron deference.”3 Think about that: one entity makes the law, enforces the law, and then decides for itself whether it has properly executed the law. The last time I visited Madison’s grave at Montpelier, the ground looked disturbed. Now I know why. Actually, I’ve known since the Nineties, when I practiced environmental and land use law. Often, I would litigate against an agency lawyer defending their own agency’s actions before, ultimately, their own agency. My trials were heard by ALJ’s who depended, to a large extent, upon that same agency to keep their jobs. Procedures were ill-defined, supposedly to reduce costs and make it easier for litigants to represent themselves, but effectively making the process arbitrary and unworthy of respect. As if to underscore this last point, administrative trials were held in rented meeting rooms or middle-school cafeterias. I object, your honor, to these undercooked tater tots. I have often discussed these issues with my friend and colleague Akram Faizer, who, like me, teaches constitutional law at LMU. I’ve suggested that we scrap the whole system. Agencies should not make their own rules. They should go through precisely the same rule-making process, with one caveat: Congress should vote before the rules become law. I’m not so concerned about enforcement – most agencies are a part of the Executive Branch, which is supposed to, well, execute. But, with all due respect to the many hard-working ALJ’s I’ve met, I want real judges in real robes sitting in real courtrooms – judges who consider cases de novo, who follow the Federal Rules of Civil Procedure, who issue binding decisions, and who are protected by lifetime tenure. There have been many laudable attempts to grant greater independence and job security to ALJ’s over the years, at least at the
federal level,4 but they don’t go far enough. Let’s give ALJ’s the respect that they, and the law, deserve. Let’s make them Article III judges. Akram looks at me patiently when I rant this way. He shares my concerns, but he raises some practical issues. We discussed some of them recently on my public radio show. Congress, he points out, would be hard-pressed to review and give its blessing to the over four thousand rules promulgated each year. It lacks the funding and the staff. It also has too few members, and those members are increasingly stuck in partisan gridlock. Fortunately, Akram has two potential solutions, one straightforward, the other nuanced. First, Akram suggests that we drastically increase the size of the House of Representatives, from its current 435 to 1200, with a corresponding increase in funding and staff. He points out that the Constitution sets no maximum size for the House,5 that, indeed, the House has increased in size throughout our history as our population grew. The statute imposing a cap at 435 members was enacted in 1929.6 Since then, our population has almost tripled, from 122 million to 330 million. Increasing the House to 1200 members would lighten the workload of any one member, and the additional staff and funding would bring Congress closer to being a co-equal partner of the Executive. Reducing partisanship is a dicier proposition, but Akram thinks it can be addressed by replacing our current winner-take-all congressional districts with statewide proportional voting. The current system rewards extremely partisan candidates, whether the district is solidly red or solidly blue. Only a few districts are competitive, and they tend to produce more moderate members, who are more inclined toward bipartisanship. Similarly, statewide proportional voting would encourage candidates to appeal broadly to voters, most of whom are moderate themselves. And thus, a state like Virginia would have a purple delegation, rather than one divided between dark red and deep blue. If such a phenomenon occurred nationally, the House would be able to efficiently consider the many proposed rules emanating from the agencies each year. Akram’s proposals will soon be published in the Tennessee Journal of Law and Policy in a piece entitled “Resurrecting Congress to Reduce Administrative Chaos.” Be on the lookout. In the meantime, please say a little prayer for James Madison’s spinning corpse. 3 4 5 6 1 2
James Madison, The Federalist Papers: No. 47 (1788). Or, sometimes, “the Deep State,” depending upon one’s political perspective. At least when the agency is interpreting its own authorizing statutes, which is frequently the case. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Not every state has followed suit. In contrast to the size of the Senate, which is set at two senators per state. U.S. Const. art. I, § 3; U.S. Const. Amendment 17 (amending Article I to provide for direct election of Senators). The Reapportionment Act of 1929, 2 U.S.C. § 2a.
Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. 26
DICTA
November 2019
LONG WINDED By: Jason H. Long London Amburn
CURSE OF THE WOO Do you remember Tennessee football in the nineties, the so-called “Decade of Dominance.” Players like Heath Shuler, Carl Pickens, Peyton Manning, Jamal Lewis, Travis Henry, and Al Wilson graced us with their play and Volunteer football flourished. Tennessee football was an unqualified success by any measure. Year after year our team was ranked in the top 10 and competing for SEC championships. The decade culminated with an undefeated season and a national championship, the first of the bygone BCS era. With the support of a rabid fan base, coffers full of money, and unrivaled resources with which to woo and develop future stars, it seemed like it would go on forever. And then it stopped. The nineties gave way to the new millennium and, while humanity survived Y2K, the Big Orange began to show signs of rot. We weren’t quite competing at the same level. Programs like Alabama and Georgia were back on the rise and the SEC was no longer a two-team conference. We said goodbye to our long-time head coach and native son. Then things got really weird. A slew of bad coaching hires, poor recruitment efforts, and lackadaisical player development have left the program where it is now . . . in virtual shambles. As of the writing of this article, Tennessee football stands at 1-4, with a sole victory coming against UT Chattanooga. We lost to a Georgia Southern team that wasn’t even in existence when Phil Fulmer last coached. We got blown out by our arch nemesis Florida and, while we put up a good fight initially against Georgia, the disparity in talent was never more obvious than when they steamrolled us in the second half to hand us a 43-14 loss at home. The Georgia game opened our eyes to just how large the gap is between where we are and where we want to be. Right now, we are in a race with Vanderbilt to claim the title of worst team in the SEC . . . again. Over the years, a number of different theories have been advanced as to why the Vols have fallen so far. Most attribute it to our decision to replace Fulmer – a solid, if not flashy, coach who maintained a disciplined and talented football team. Related to the termination of coach Fulmer’s contract, some would argue that a slew of bad coaching hires have brought UT to the brink. Lane Kiffin was a capable coach, but ultimately his heart was elsewhere. Derek Dooley was great for a quote or two but evidently did not believe that it was necessary to recruit linemen. Butch Jones . . . well, as my grandmother used to say, “bless his heart.” Now, here we are with Coach Pruitt. The jury is still out on him, but if a coach’s ability is in any way related to his command of the Queen’s English, it promises to be a bumpy road. Some argue that the rise of other programs precipitated our natural decline. As Georgia, Alabama, and Clemson have reemerged as dominant forces in November 2019
college football, our recruiting footprint has shrunk and we simply don’t bring in the talent we used to. All of these are plausible reasons as to why our team has struggled and fallen so far. However, I’d like to advance my own theory. The Boston Red Sox had the Curse of the Bambino. The Chicago Cubs suffered the Billygoat Curse. Our beloved Vols have fallen victim to the “Curse of the Woo!” The unofficial fight song of the Volunteers, “Rocky Top,” was written by Boudleaux (great name) and Felice Bryant in 1967. It originally became popular as a staple at Osmond Brothers’ concerts of the late 60s. However, it became legendary during halftime of the Alabama Game, October 21, 1972. That’s when it was played for the first time before fans in Neyland Stadium and became an instant favorite. My entire life, growing up in Knoxville Tennessee, my football team has been inextricably linked to “Rocky Top.” It has inspired countless musicians to perform their own cover, resulted in the legal renaming of a town, and even served as the codename for an FBI investigation into corrupt state government practices. If you are a Vol fan, “Rocky Top” is part of your identity. I will never forget the pride I had when I met my college roommate’s father for the first time. He was from Ohio and was a huge Ohio State fan. The year before, he and a friend had watched live as a highly touted Ohio State team, led by Heisman trophy winner Eddie George, were upset by the Vols in a bowl game. When he learned I was from Knoxville, all he could do was growl and say “I hate that damn song.” He claimed anger, but I knew it was envy. There it was, we had the best team, the best fans and the best song. All was right with the world. And then someone had to go and screw it all up. “How?” you may ask. By adding a superfluous “woo!” right in the middle of the chorus. I blame some student, who had likely been partying too hard, for throwing in the tacky and pointless addition, thinking it would be funny. Little did that student know that he single-handedly brought down one of the most prestigious dynasties in college sports history. He brought the Curse of the Woo upon us and, twenty years later, we are still reeling. Of course, the woo spread like wildfire and there seems now to be no way to stop it. However, I am convinced it is the cause of the calamity that has befallen our team. I believe we need to eradicate the noxious woo from our vocabulary if we are ever to see our Vols win again. I recognize that many reading this column are not superstitious and will ignore my pleas to stop wooing. But here’s the thing, after twenty years in the wilderness, can you really afford not to stop wooing? Just in case the curse is real.
DICTA
27
BARRISTER BITES By: Angelia M. Nystrom, JD, LLM University of Tennessee Institute of Agriculture
FLAVORS OF FALL AND FOOTBALL I love Fall. After what seemed to be an endless summer, Fall has finally arrived. And I could not be more pleased. I love everything about Fall: the crispness of the air, the smell of a fire burning in the fireplace, the changing leaves, and the clothes. But most of all, I love football. Especially Vols football. Win or lose, I am there… and I always stay until the band plays the Tennessee Waltz. Hugh has always said that the whole of Knoxville rises and falls with UT football. His theory is that people are in a better mood when the Vols win. Restaurants are full. People are shopping in our local stores. Cash is flowing. The local economy is booming. Life is good. When the Vols lose, though, the mood of all of Knoxville changes. Until recently, mine did, too. I cried when they beat Florida a couple of years ago. And I’ve cried when they have lost. This year, though, I decided that, whether the Vols win or whether they lose, I was going to be happy. My plan was to embrace the season and all of the good things that it has to offer, but especially the tailgate. Whether the team wins or loses, the tailgate offers an opportunity for a really fun party. I saw this firsthand a few years ago at The Grove at Ole Miss. Whether the Rebels are winning or losing, the Ole Miss faithful know how to throw a proper party. I said at the time that Ole Miss always wins the tailgate. And I decided that this year, the tailgate could be my “win.”
My favorite Big Orange tailgate libation happened by accident. I’m not a fan of orange juice or orange sodas, so I had to get creative. I do love peaches, and I had a couple of bags of frozen peaches in the freezer. I combined the two bags of frozen peaches with a bottle of moscato wine in the Vita Mix and then prepared on the smoothie setting until it had a “smoothie” consistency. It’s really easy… and really good.
While I’m really good with the décor, I’ve never been great with tailgate food. I’m a bit OCD with having food that matches the color scheme, so it’s been a challenge. Cheese puffs are easy. Other orange foods are not. I also have a hard time making “small bites” that people can eat quickly. Much like the Vols, though, I have not been deterred. Bacon-wrapped tater tots with a chipotle dipping sauce have been the clear winner this football season. To make them, get two large bags of tater tots and two packages of bacon. Slice the bacon in half and then wrap the tots with the bacon and place on a baking sheet, crease side down. Bake at 450 until the bacon is done (about 25 minutes). For the sauce, mix ½ cup mayonnaise, ½ cup sour cream, 2 TBS brown sugar, 2 tsp red wine vinegar, 2 tsp dried oregano, 2 chipotle peppers in adobo sauce, and 2 TBS of the adobo sauce. Pulse in a food processor until smooth. Skewer the tots with toothpicks and serve with the sauce. I promise that they will not last long. They are yummy goodness on a toothpick.
28
I’ve also become a fan of Bloody Mary chili. My sister found this recipe in the NASCAR cookbook a few years ago and has used it to win several chili cook-offs in Northern Virginia. She told me that it was fantastic… and fantastically easy, and it really is. To make the chili, brown 3 lbs of ground beef in a skillet over medium heat. When cooked completely, drain and set aside. Chop one large onion and one large green pepper. Cook in 2 TBS olive oil until soft (about 5 minutes). Combine ground beef, onion and green pepper in a slow cooker. Add 2 TBS chili powder, 1 TBS cumin, 2 TBS red pepper (I like it hot), one 46 ounce bottle of Bloody Mary mix (I like Tom’s), one 15 oz can of red beans, one 15 oz can of kidney beans, and one 15 oz can of black beans. Bring to a boil, then reduce heat to a simmer for 2-3 hours. Garnish with sour cream, shredded cheddar cheese for a little orange and white. You can also add chopped scallions, and/or my favorite… Frito’s.
I will usually get a pre-made cheese ball (Food City’s pineapple cheese ball is great), form it into the shape of a football, and then use chives to make “football laces.” It is really great with Sociables crackers. For something sweet, one-bite brownies from the deli section at the grocery store cannot be beat. Of course, I always welcome my friends to bring their own additions. (Trace always hopes someone will bring chicken wings.) If you ever come to our tailgate party, he likes traditional wings with the fire rub from Big Kahuna or wet wings from Calhoun’s. To me, Fall is the best time of year. It’s filled with all of the things I love: cool air, warm clothes, changing leaves and Volunteer football. No matter what happens on the field, if we have been able to spend time each week with friends and share a meal, then I count it as a W.
DICTA
Happy Fall, y’all. And Go Vols.
November 2019
BENCH AND BAR IN THE NEWS
How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to Marsha Watson at mwatson@knoxbar.org. LMU PROGRAM FEATURING DANIEL STOWELL You are cordially invited to attend the 2019 R. Gerald McMurtry Lecture, which is being held in LMU Law’s Courtroom (third floor-Room 340) on Friday, November 8th, from 9:30 a.m.-1:30 p.m. Presented by the Duncan School of Law and LMU’s Lincoln Institute, the event will feature noted Lincoln scholar Daniel W. Stowell, the former Director and Editor of The Papers of Abraham Lincoln. For information, please contact April Hurley: april.hurley@lmunet.edu or 865-545-5339. ATTORNEY ETHAN D. LAVELLE JOINS LEITNER, WILLIAMS, DOOLEY & NAPOLITAN KNOXVILLE OFFICE The law firm of Leitner, Williams, Dooley & Napolitan, PLLC is pleased to announce that attorney Ethan D. Lavelle has joined their Knoxville office as an associate. Mr. Lavelle is an associate in the firm’s Knoxville office whose practice is primarily general civil defense litigation and family law. Originally from Camden, Tennessee, he attended Middle Tennessee State University for his undergraduate degree, wherein he graduated with a History major and Political Science minor. He went on to attend the University of Mississippi for law school and graduated with his Juris Doctor in May 2016. He has obtained experience with previous law firms in civil and criminal practice, probate, family law, representation of creditors and insurance subrogation litigation in General Sessions, Chancery and Circuit Courts throughout the State of Tennessee.
monthly meeting on Thursday, November 14, 2019, at 12:00 p.m. at the Blount Mansion Visitors Center, Knoxville, Tennessee. Amy J. Russell, Victim Assistance Coordinator, United States Attorney’s Office, will be presenting. A lunch buffet is available at the cost of $12/person with reservations. Please contact Caroline Sudlow, ACP, at president@ smparalegal.org or (865) 215-3676 for additional information and/or lunch reservations. CORRECTION TO THE OCTOBER DICTA In the Practice Tips article on page 9, the article stated that attorney fees may never be awarded in criminal contempt actions pursuant to TCA section 36-5-103(c) and Watts v. Watts. The TN General Assembly amended TCA 36-5-103(c) on May 3, 2018 to allow for an award of reasonable attorney’s fees in any criminal or civil contempt action or other proceeding to enforce, alter, change or modify any decree of alimony, child support, or provision of a permanent parenting plan order. SALARY SURVEY AVAILABLE The Knoxville Chapter of the Association of Legal Administrators (KALA) conducts a survey each year that includes general salary information and fringe benefits. If you would like to purchase a copy of the survey, please contact Charlotte Welch at cwelch@opw.com. The cost of the survey is $150.00. OFFICE SPACE AVAILABLE: • West Knoxville-Bearden Office Space - West Knoxville lawyer has office space for rent at 4008 Sutherland Avenue. The rent includes internet, ample parking and common area maintenance. Inquiries: leslieahull@gmail.com. •
PARALEGAL ASSOCIATION MEETING The Smoky Mountain Paralegal Association (“SMPA”) will hold its
Photo Ops BARRISTERS VETERANS LEGAL ADVICE CLINIC
The Barristers hosted another successful legal advice clinic for veterans and their families on October 9th.
November 2019
Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 900 sq ft. Present floor plan accommodates four offices plus a conference room and a reception area. One Level. Offices on either side occupied by longterm law firms. Very Affordable Rate with a two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.
FAITH & JUSTICE LEGAL ADVICE CLINIC & SUPER SATURDAY BAR On October 5th, attorneys and law student volunteers participated in the Faith and Justice Legal Advice Clinic at Ball Camp Baptist Church.
DICTA
29
Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System
PRO BONO SPOTLIGHT By: Kathryn Ellis
Want to Volunteer?
Pro Bono Director Legal Aid of East Tennessee
Fill out our new Pro Bono Volunteer Survey: https://www.surveymonkey.com/r/DCTWYFSt
YOUR TIME & SUPPORT OF LEGAL AID OF EAST TENNESSEE MAKES A DIFFERENCE An area domestic violence shelter referred Sylvia to LAET in November 2015. Sylvia’s husband had a significant drug abuse problem and was physically abusing Sylvia. The abuse included strangling Sylvia, holding her down, and punching her. Sylvia reported that on the night before they were married, her husband had strangled her until she passed out. Sylvia’s husband would not agree to an Order of Protection (OP), so her case went to trial. Sylvia testified about the abuse she suffered at her husband’s hands throughout 2015. The judge granted an OP with findings for Sylvia, and her husband was told not to communicate with or contact her, and he was told that he had to move out of their marital home, which Sylvia had owned prior to them getting married. Sylvia had won in court, but she struggled with everything. She had married her husband because she loved him. She knew that her husband had a substance abuse problem and needed help. Even though she knew her husband was supposed to stay away from her for her own safety, she struggled to break away emotionally. When her husband violated the OP by contacting her, Sylvia gave in and spoke to him. He apologized, and he asked her to help him. He reminded her about their marriage vows. Sylvia didn’t report these violations and began talking with her husband. At the beginning of 2016, Sylvia’s husband assaulted her again. When she told him to leave her alone and reminded him about the OP, he threatened to kill her. Sylvia came back and asked for LAET’s help again, and we began the process of pursuing violations against her husband. Over the next five months, the cycle continued – Sylvia would break down and give in to her husband’s nearly constant phone calls, texts, and requests for her to remember their vows. Sometimes, Sylvia would decide that she was safer knowing where her husband was and what kind of mood he was in so she could placate him when necessary. Sylvia installed a video surveillance system outside her home, occasionally sent her children to stay with family members, and knew she wasn’t safe. But she felt obligated to help her husband. Over the same five months, Sylvia filed numerous show causes against her husband with LAET’s and the DV shelter’s assistance. Her husband was arrested and bonded out. He was arrested again and bonded out again. And, again. Each time, he used cash he received from selling marital property – a vehicle and a riding lawn mower. Each time, the violations immediately started again. Sylvia endured hundreds of phone calls, hundreds of text messages, dozens of threats, and a handful of assaults – all while he was under direct orders from the court to not contact Sylvia. During one court appearance, Sylvia’s husband pled guilty to more than two dozen violations, but an agreement was made that was designed to give him every opportunity to get help for his substance abuse, and he was not taken into custody. He was warned that failure complete any required step would mean several months in jail. He immediately contacted Sylvia and failed to complete a single agreed upon requirement. Within a month, there had been hundreds more phone calls and text messages. Six months after her process started, Sylvia’s husband again pled to dozens of violations and was taken directly to jail to serve several hundred days. Unlike a criminal sentence, sentences for OP violations are served “day for day.”
We assisted Sylvia with filing for divorce once her husband was in jail, but she could not bring herself to finalize it. After more than a year in jail on the OP violations, Sylvia’s husband was released and she allowed him to move back in with her. She believed that he was sick (drug addiction) and that as his wife she had a responsibility to care for him. Even though she had a 10-year Order of Protection ordering her husband to not come around or communicate with her, Sylvia thought her wedding vows meant more. For four months, Sylvia’s husband lived in the house with her and her adult child. Sylvia reported that things were never “good,” but that during those months her husband didn’t hit her. Then, her husband got upset with her and struck her. Sylvia’s son tried to intervene; her husband struck him. Her husband’s daughter pulled out a phone, called the police, and recorded a video of the altercation. When Sylvia called to ask for help with the new violations filed against her husband, she also asked to finalize her divorce. She said, “It’s one thing for him to hit me, it’s another thing for him to hit my child.” Sylvia’s divorce was finalized in April 2018, and in July 2018 the court sentenced her husband to serve nearly two more years in jail for OP violations. After nearly three years, Sylvia was finally able to truly move forward. Without the help of the Pro Bono attorneys in our area, LAET could not help nearly as many members of our community, and clients like Sylvia could be left without legal assistance. As Pro Bono Month and Domestic Violence Awareness Month end, please accept my heartfelt thanks for all you do for LAET and our clients.
Mark Your Calendars: * November 2 (9:00-12:00) – Knoxville Saturday Bar at LAET’s Knoxville Office * November 9 (9:30-12:30) – Debt Relief Clinic at the Public Defender’s Community Law Office * November 13 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s Community Law Office * November 16 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County Office * November 19 (3:00-6:00) – Faith & Justice Advice Clinic at Arnstein Jewish Community Center (6800 Deane Hill Dr.) * December 7 (9:00-12:00) – Knoxville Saturday Bar at LAET’s Knoxville Office * December 11 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s Community Law Office * December 14 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County Office
The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902 phone (865) 637-0484 e-mail:kellis@laet.org fax (865) 525-1162
30
DICTA
November 2019
Q:
THE LAST WORD By: Jack H. (Nick) McCall
A:
Ryen, how did you become a drag racer, what’s it like, and how did a racecar driver from Nevada end up in Knoxville?
My dad raced boats when my brother and I were kids. Speedboats are very unsafe; and cars are safer, my dad decided to get us involved with them instead. My brother is eight years older than me. He got a junior dragster when he was a kid for his birthday, a month before I was born. I basically grew up on a drag strip. I grew up just outside Las Vegas, and I started out with junior dragster, which is a mini dragster with a souped-up lawnmower engine. That has progressed into a five- or six-car team, racing all over the country with my brother and a couple teammates. I started racing when I was seven, as well as doing gymnastics. I was on the collegiate route to gymnastics, and when I was in high school gymnastics, training 40-50 hours a week, I couldn’t race as much, and I stopped racing junior dragsters all together when I was about 12 or 13. I got hurt in gymnastics and couldn’t compete anymore and since cars were safer than gymnastics, I went back to that. I think I got my racing license before I got my driver’s license at 16! I began racing full-sized cars instead of junior dragsters since then. I’ve raced all around the West Coast, California to Washington State; near Bristol; Chicago; St. Louis and around the Midwest – basically, from coast to coast. I was less able to do so as an undergrad and while I was in law school, of course. Our family’s team is made up of my brother and me plus two other drivers. I predominantly drive dragsters; we now have one of them, although typically we’ve had two. These are 20-21 feet long, with a big block motor that puts out 1,000-1,400 horsepower. On our team, we also have two Chevy “factory” racecars. They are “stock” Camaros that you buy from the Chevy factory – they look like a stock car, but with built-in roll cages, no VIN numbers, and a 900 horsepower motor. You can only drag-race these cars; they’re not “street-legal.” Currently, we have a 2020 model and a 2018 model. Our other car is a Chevy Cobalt that has been stripped down and rebuilt into racecar. Cobalts (in my opinion) are not very nice-looking street cars, but they are perfect for drag racing. (I think half of the population of Chevy Cobalts is found at drag strips.) We once had a 1970 Camaro but we rotate through cars quite a bit so we just sold that. And now, even my five-year-old nephew has his own junior dragster. Compared to my brother, I don’t know as much as I’d like to about maintenance and mechanics, but I know enough to get by. You can’t drive a race car well if you don’t understand what’s going on to your car and my brother and father always told me that if I don’t work on it, I don’t get to race it. My brother and I principally work on our team’s cars. And my dad helps, too, as we don’t have any other crew members. I have been just under 200 miles an hour: 195 mph in 6.8 seconds over a quarter-mile course. Is it scary? No, it’s not scary at all. I have crashed a dragster before, but I’d rather be in an accident in a dragster again than in a street car on the freeway. There’s so much safety equipment in dragsters, and they are relatively easy to drive. My brother told me when I started driving: “Whatever you do, don’t hold tightly to the steering wheel.” If you hold on to it with a “death grip,” any little movement your body or hands make causes the whole car to move. The more
RYEN M. LAMB, WINCHESTER, SELLERS, FOSTER & STEELE, P.C.
finesse and lightness you have, the easier they are to drive, and for the most part, they drive straight. Once when I crashed, I got out of the car and asked if I could run one of our other cars, since technically, I was still in the race. My sister-in-law is an EMT working on the safety crew at the track – that’s how she and my brother met – so I knew all of the safety crew. They said: “You’re fine, but no, you can’t; you’re family, you’re one of us” and they sent me to the hospital to get checked out. Even after hitting a wall and rolling at about 165 m.p.h., if you’re going to be in a street car accident or a race car accident, give me the race car: it’s built to handle crashes. How did I get here from Las Vegas? I wanted to move out of the West Coast – it has its own kind of feel to it, and I wanted something new and different. Vegas is such a large city, I wanted something smaller. I’d spent some time here; my brother actually drove for a team whose owner had a construction company in Maryville, so we had drag-raced around here. While drag racing is a national thing and there are thousands of racers, it’s such a closely-knit community that you get to know people everywhere. When I moved here, I had eight or ten people within an hour of here volunteering to help me out. I like this area – it’s so central to everything – and it was a place where I felt like I could live. Another perk: there are far more race tracks in this area than there are out west. You can get to ten drag strips within three hours of Knoxville. Outside of Vegas, the next closest one is in Phoenix, which is four or five hours away, or southern California, which is about the same distance. At first, I didn’t think that being a lawyer would necessarily overlap with drag-racing. A drag race is over quickly, in six to seven seconds. It’s very fast, but you have to do so many things in thousandths of seconds. Most importantly, you have to ensure that if you mess up on the starting line, you get the mistake cleared from your brain quickly before you get to the finish line. Being able to compartmentalize and see the little picture up-front while keeping in mind the big picture, without getting bogged down in the small things, is vital as a racer. And personally, I can be kind of emotional (I like it that I am in business and banking law, not criminal law or family law), but in racing, you have to execute in a matter of seconds--you cannot let emotions take over. You win or lose races in thousandths of a second, so you have to compartmentalize things. That is a life skill that really translates well to practicing law. At a young age, I had to deal with sponsors and the corporate world; I had to get in front of adults in a way that’s foreign to most 16- or 17-year-olds. Those people skills put me into more of a grown-up world more quickly than many of my peers and I think those skills translate well into the legal field as well. The mechanical knowledge is a plus as well as my mechanic skills have come in handy. I’ve helped a guy jump his car in the parking garage of our building once and I’m the first one people in our office ask for advice if they are having car trouble. But it’s more the life skills that you learn in racing, though, that are so valuable and that can apply pretty well to law.
“The Last Word” column is coordinated by KBA Member Nick McCall. If you have an idea for a future column, please contact Nick at nick.mccall@gmail.com November 2019
DICTA
31
Prsrt Std US POSTAGE
PAID
KNOXVILLE, TN PERMIT NO. 3 0 9
P.O. Box 2027 Knoxville, TN 37901
Diversity Program & Reception The Knoxville Bar Association has sponsored an event for minority law students for more than twenty-five years and this year’s “Diversity & Inclusion: A Call to Action: From Theory to Reality” brought record attendance. The message was delivered by renowned speaker Janice Brown and she left quite an impression. The event drew more than 185 participants including law students from the U.T. College of Law and the LMU Duncan School of Law. Attorneys from the following local law firms and government agencies participated in the event. Anderson Busby PLLC Baker, Donelson, Bearman, Caldwell & Berkowitz City of Knoxville Law Department Cravens Legal District Attorney General, 6th Judicial District Dunn, MacDonald & Reynolds, P.C. Egerton, McAfee, Armistead & Davis, P.C. Eldridge & Blakney, P.C. Elizabeth Meadows, Attorney at Law Elmore, Stone & Caffey, PLLC Frantz, McConnell & Seymour, LLP Hodges, Doughty & Carson, PLLC
Kennerly, Montgomery & Finley, P.C. Knox Co. Circuit Court Knox County Law Department Knox County Public Defender’s Community Law Office Kramer Rayson LLP Legal Aid of East Tennessee, Inc. Leitner, Williams, Dooley & Napolitan, PLLC Lewis, Thomason, King, Krieg & Waldrop, P.C. Lincoln Memorial University - Duncan School of Law London Amburn, P.C. Luedeka Neely Group, P.C. Merchant & Gould P.C.
Miller Law, Mary D. Miller, PLLC Pinnacle Financial Partners Pryor, Priest, Harber, Floyd & Coffey Riggs Davie Tennessee Supreme Court Tennessee Valley Authority - Office of the General Counsel U.S. Bankruptcy Court U.T. College of Law Watson, Roach, Batson & Lauderback, P.L.C. Woolf, McClane, Bright, Allen & Carpenter, PLLC