DICTA.October.2018 by Knoxville Bar Association

Practice Tips: Representing Transgender Students in Knox County Schools . . . Page 9 Management Counsel: Law Practice 101 Diversity & Inclusion: Improving Chances for Success . . . Page 22

A Monthly Publication of the Knoxville Bar Association | October 2018

PRIVACY, PHONES AND LOCATION DATA: THE SUPREME COURTâ&#x20AC;&#x2122;S DECISION IN CARPENTER V. UNITED STATES

DICTA

October 2018

In This Issue

Officers of the Knoxville Bar Association

COVER STORY 16

October 2018

Privacy, Phones and Location Data: The Supreme Court’s Decision in Carpenter v. United States

CRITICAL FOCUS

5 President Keith H. Burroughs

President Elect Wynne du Mariau Caffey-Knight

Treasurer Hanson R. Tipton

Immediate Past President Amanda M. Busby

Secretary Cheryl G. Rice

KBA Board of Governors Charme P. Allen Maha Ayesh Jamie Ballinger-Holden E. Michael Brezina III Kathryn St. Clair Ellis

Stephen Ross Johnson Elizabeth K.B. Meadows Mary D. Miller Carrie S. O’Rear T. Mitchell Panter

M. Samantha Parris Robert E. Pryor Jr. Mikel A. Towe

President’s Message

Another High Point in the Life of our Bar Association: The Annual Tennessee Supreme Court Dinner

Practice Tips

Representing Transgender Students in Knox County Schools

Legal Update

Supreme Court Fails to Decide on Constitutional Limits to Partisan Gerrymandering

The Knoxville Bar Association Staff

Schooled in Ethic

How Are We Doing? Annual Report of the Board of Professional Responsibility 2017-18

Management Counsel: Law Practice 101

Diversity & Inclusion: Improving Chances for Success

WISDOM

Marsha S. Watson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Jonathan Guess Database Administrator

Lacey Dillon Programs Administrator

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

Shari Holt LRIS Assistant

Volume 46, Issue 9

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 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. October 2018

DICTA

Judicial Tribute

Tributes to Chief Justices Frank Drowota and Riley Anderson

Outside My Office Window

Beneath the Interstate

Life in Law and Harmony

Around The Bar

Manage Your Energy, Not Your Time Knoxville Bar Foundation Honoring Attorneys of Distinction and Supporting our Legal Community

14 Judicial Profile Stacy Eckard 19 Of Thermometers and Thermostats

Attorney General: A Lawyer or Politician?

Gadgets

Bill & Phil Travel Tech

Your Monthly Constitutional

The First to Die

Long Winded

A Curmudgeon’s Rant

Smokin’ Good Barbecue

4 12 20 29 30 31

Section Notices/Event Calendar Bar Hopping Barrister Bullets Bench & Bar In the News Pro Bono Project Last Word

Barrister Bites

COMMON GROUND

EVENT CALENDAR & SECTION NOTICES

event calendar

Section Notices

There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. Alternative Dispute Resolution Section

The ADR Section plans regular CLE throughout the year. Join the ADR Section for the following upcoming CLE programs: “Mediating the Myriad Forces in a Medical Malpractice Case” on November 5, and “Mediation: Practice & Ethics Update” on December 3. To have your name added to the section list, please contact the KBA office at 522-6522. If you have a program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Bob Stivers (386-1630).

Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. Join the Bankruptcy section for the next “Pro Bono Debt Relief Clinic” on November 3 and for a CLE on “Bankruptcy Case Law Update” on December 11. To have your name added to the section list, please contact the KBA office at 522-6522. If you have 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. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like to get involved, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Hedrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. To have your name added to the section list, please contact the KBA office at 522-6522. 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. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs LeAnn Mynatt (549-7000) or Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. Join the Family Law section for a CLE on “Fast and Furious – Navigating the New and Proposed Changes in Child Support” on October 2 and a CLE on “Family Law: Hearsay and Rules of Evidence” on November 15. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Ron Mills (215-2050). Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. Save the date for the Annual Juvenile Court extended CLE program on November 9. To have your name added to the section list, please contact the KBA office at 522-6522. 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 2016 will automatically be opted-in to the section. Join the New Lawyers Section for a CLE on “Law Practice 101” on November 5 at Elkmont Exchange Brewery. To have your name added to the section list, please contact the KBA office at 522-6522. For information about the Section, please contact Section Chairs Liz Anne Bowden (637-1980) or Sam Louderback (546-0500). Senior Section The KBA Senior Section will meet next on Wednesday, December 12 at Calhoun’s on the River. The program title is “Russian Propaganda and Social Media Targeting of American Voters – Update 2018” and will feature Natalie Rice, Institute for Nuclear Security, University of Tennessee. The luncheon will be held from 11:30 a.m. to 1:00 p.m. Please indicate your choice of Crab Cakes or Lemon Chicken. Register online by clicking December 12 in the Event Calendar at www.knoxbar.org. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307). Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. To have your name added to the section list, please contact the KBA office at 522-6522. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963) or Patrick Slaughter (637-6258).

DICTA

October 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 n n n n

1 2 2 9 10 10 11 13 15 15 17 18 22 25 25 25 29 30

ADR Section CLE Law Office Tech Committee Meeting Family Law Section CLE Professionalism Committee Meeting Veterans Legal Advice Clinic Barristers Meeting Judicial Committee Professionalism Committee Fall Hike Economics of Practicing Law – UT College of Law Diversity in the Profession Committee Meeting Board of Governors Lunch & Learn Barristers Golf Tournament Volunteer Breakfast Economics of Practicing Law – LMU DSOL Barristers Diversity Mixer New Lawyers Section Octoberfest Professional Mixer

November 2 5 5 5 6 8 9 13 13 14 14 14 15 16 19 27

Ain’t Behavin’ CLE New Admittee Welcome Reception Law Practice 101 CLE ADR Section CLE Law Office Tech Committee Meeting Lunch & Learn Judicial Committee Juvenile Court CLE In Chambers CLE Professionalism Committee Meeting Veterans Legal Advice Clinic Barristers Meeting Board of Governors Meeting Family Law Section CLE Memorial Service Diversity in the Profession Committee Meeting CLE Committee

Mark Your Calendar Annual Memorial Service November 16, 2018 October 2018

PRESIDENT’S MESSAGE By: Keith H. Burroughs Egerton, McAfee, Armistead & Davis. P.C.

ANOTHER HIGH POINT IN THE LIFE OF OUR BAR ASSOCIATION: THE ANNUAL TENNESSEE SUPREME COURT DINNER on a personal level as being critical in our lives. Ashby shared that researchers September 5, 2018 marked yet another high point in the life of the across all disciplines agreed on two things: (1) the need to feel human conKnoxville Bar Association. Over 300 judges, attorneys, bar leaders and their guests gathered at the Crowne Plaza Hotel in Downtown Knoxville for a recepnection to other human beings is one of the most basic needs in our lives, and (2) the telling and hearing of stories is the most essential way to achieve those tion followed by a dinner and program honoring the Tennessee Supreme Court. connections, a connection that is emotional and not merely factual. In attendance, among others, were Joycelyn Stevenson, TBA Executive Director, Ashby went on to share his personal story about a terrible mistake he Jason Pannu, TBA President, Anne-Louise Wirthlin, Access to Justice Director, made in his early 20’s that led to a brush with law enforcement in BirmingAdministrative Office of the Courts, Herbert Slatery, Tennessee Attorney General, Dwight Tarwater, Attorney to Governor Bill Haslam, and several elected ham. Ashby was then a young promising rock and roll musician and was officials. experimenting one night with drugs at a nightclub between gigs that led to his The first portion of the program was led by Chief Justice arrest. He appeared before Judge Pete Johnson, with fear that he was going to be disconnected from all Ashby knew, his family, his career, his rights, all being Jeffrey Bivins, who presented a number of updates on behalf of the Court, taken away. But Judge Johnson including the Court’s Access to did something surprising. He told Justice Commission new strategic Ashby that he needed help and plan, statistics from the Access to that the Judge was going to provide Justice Annual Report, with details that help; counseling, drug testing, regarding the expansion of legal community service. Judge Johnson advice clinics throughout the state, told Ashby that if he was successful, implementation of a statewide the Judge would expunge all of the communications outreach plan, charges from his record. When and increase in pro bono recogniAshby thanked the Judge, the Judge tion, and the development of the said, “to whom much is given, much Faith and Justice Alliance. In the is required.” previous year, lawyers across the Ashby was successful, state reported providing pro bono the charges were expunged from legal services with a collective value his record, he went on to complete of more than $120 million, using his legal education at the Cuma standard hourly rate of $200.00. Justice Bivins also reported on the berland School of Law, served 7 creation of a task force between the years as Associate Justice of the From L to R: Hon. Holly M. Kirby, Hon. Roger A. Page, Hon. Cornelia A. Clark, Ashby Pate, Court, the Governor’s office and state Hon. Jeffrey S. Bivins, Hon. Sharon G. Lee Supreme Court of Palau, and in and local officials to combat the opi2016 returned to his home town of Birmingham to continue his private practice career. Ashby reminded us that the oid addiction crisis. Justice Bivins reported on the grant by the Administrative law’s highest calling is not to disconnect but to reconcile. Ashby was extremely Office of the Courts to ten Tennessee counties to launch court kiosks in 2018 effective at using his personal story to bring connection between all who were in to direct self-represented litigants to an on-site computer or tablet where the attendance, both with Ashby and with one another. If Judge Johnson had not user can access legal information and connect with local legal resources. During exercised his powers to spare Ashby from a career ending conviction that would Justice Bivins’ presentation, 91 local have prohibited him in all likelihood from ever being admitted to practice law, attorneys were recognized for donating 50 or more hours of pro bono services in our profession would not be as great as it is with him in it. His story is powerful the prior year. and inspirational. As lawyers and judges, we can use our talents and storytelling Our keynote speaker for the evening was Birmingham Attorney and abilities to help all around us see another side of every situation and transform former Associate Justice of the Supreme Court of the Island Nation of Palau, those with whom we connect from hopelessness to opportunity. Ashby Pate. Ashby has accomplished more than his age of 40 years might otherwise indicate. He is a successful trial attorney and phenomenal story teller. Ashby began his talk by telling the story of legendary American blues artist s lawyers and judges, we can use our Huddie Leadbetter, who was convicted of murdering a patron in his audience talents and storytelling abilities to one evening with whom he got into a fight over a woman. Huddie proceeded help all around us see another side of to stab the man to death and was sentenced to 35 years in prison. Huddie borrowed the words and tune of his fellow inmates in the prison to write “The every situation and transform those with whom Midnight Special Shine A Light on Me”. He sent a recording of that song to we connect from hopelessness to opportunity. the then Governor of Alabama who had campaigned on a platform of granting no pardons. Nonetheless, the Governor pardoned Huddie Leadbetter after serving 7 years of his 35-year sentence, and Huddie went on to be better known If you were not able to attend this year’s Annual Supreme Court Dinner, take a as Lead Belly. moment to Google “Ashby Pate YouTube Video” to see his presentation entitled Ashby used this story to lead into his topic of the evening and that was “Be the Light.” It will make your day. his revelation of the need for meaningful connection to other human beings

October 2018

DICTA

JUDICIAL TRIBUTE By: Gary R. Wade LMU Duncan School of Law By: Lisa Rippy McGuffey Senior Law Clerk to Justice Cornelia A. Clark

By: Rodd Barckhoff Staff Attorney, Tennessee Supreme Court

TRIBUTES TO CHIEF JUSTICES

FRANK DROWOTA AND RILEY ANDERSON Within the last six months, Tennessee lost two of its most accomplished and beloved members of the judiciary: Frank Drowota and Riley Anderson. DICTA celebrates these two men with remembrances from three people who knew them well: Gary Wade, who was one of their successors as Chief Justice, and two of their law clerks, Lisa Rippy McGuffey and Rodd Barckhoff. Gary R. Wade Vice President & Dean, Lincoln Memorial University Duncan School of Law Chief Justice of the Tennessee Supreme Court (2012-14) Author Alex Haley once observed that “every time an older person dies, it’s like a library burning down.” On April 15 of this year, our profession lost legendary jurist Frank F. Drowota III of Nashville at the age of 79. July 4 marked the passing of Knoxville’s five time Chief Justice E. Riley Anderson at the age of 85. Each carved their names on the hearts of those who knew them and the minds of those who knew of them. Their legacies to the bench and bar are preserved forever, not only by the books in our law libraries but also by the remarkable advances in computer technology during their years as lawyers, judges, justices, and at the last, chief justices of the Tennessee Supreme Court. Frank, a veritable prodigy, attended Vanderbilt to play football, served a hitch in the Navy, and returned to his alma mater for law school. After a short period of time in the private practice, he became a Chancellor at the age of 31, a Court of Appeals Judge at the age of 35, and a Justice of our Supreme Court six years later – a Court he served for twenty-five years. Voted “Most Friendly” in high school, his smiling face, easy manner, and encouraging words earned the enduring respect, admiration, and affection of his professional colleagues. Riley, the product of a single parent and a public education, graduated from Central High School in Knoxville, completed his education at the University of Tennessee, and joined a prominent Oak Ridge law firm known for its extraordinary work ethic. A lawyer’s kind of lawyer, his polite, quiet, understated nature masked his energy, drive, and passion for the rule of law. In 1987, at the age of 54, Riley accepted an appointment to the Court of Appeals. Three years later, he joined Frank on our Supreme Court, and, for the fifteen years thereafter, these two legal giants combined forces to shape the development of our state law and the advancements in our administration of justice. Old friends are the best friends, they say, and that they were – to each other and to countless others across the state. In biblical terms, both Frank and Riley fought the good fight, kept the faith, and finished the race, leaving the judicial branch in a far better place. As jurists, their words and deeds stand preserved for all posterity.

Justice Drowota was the most optimistic person I have ever known. Not just half full, his glass was always overflowing. For example, after he had been diagnosed with ALS at age 79, he commented that if he had to miss a decade of life, the decade of the eighties was the one to miss! He was friendly, outgoing, humble, approachable, generous with his time and resources, and genuinely kind and considerate. From 1990 to 2005, when retirements and elections brought seven new justices to the Court, he welcomed each, shared advice and information from his vast store of institutional memory and wisdom, and worked to build relationships and a collaborative and collegial work environment. Justice Drowota was an excellent role model, who taught by example and by deeds more than words. He mastered work-life balance. He revered the Tennessee judiciary but loved his wife, children, parents, and grandchildren even more and kept his priorities in order. He loved his church, where his father had served as founding Justice Drowota wearing a Santa hat next to pastor, and he was a comthe bust of Grafton Green. Grafton Green is mitted disciple of Christ. He the only other justice in TN history who served spent countless hours serving longer on the Supreme Court than Justice a variety of civic organizations. Drowota. He was a wonderful friend, celebrating happy times and offering comfort in sad times. Words are not sufficient to convey fully just how fine a person he was. I am very grateful and fortunate to have had the privilege of calling him my boss, mentor, and friend. Rodd Barckhoff Staff Attorney, Tennessee Supreme Court

Lisa Rippy McGuffey Senior Law Clerk to Justice Cornelia A. Clark I had the honor of clerking for Justice Frank F. Drowota III from 1996 until his retirement in 2005. Justice Drowota was an outstanding judge in every way and a truly wonderful person. When I began

clerking, Justice Drowota had already served sixteen years on the Supreme Court and authored many influential opinions, including the landmark decision adopting comparative fault. Nevertheless, he remained completely engaged in and enthusiastic about the Court’s work. Although his knowledge of Tennessee law was unsurpassed, he genuinely valued the perspectives and insights of other justices and Court legal staff. He thoughtfully considered comments and never took personally criticism of his own opinions. Because he viewed the Court as a team and he was the ultimate team player, he volunteered for difficult and thankless tasks, even though he had seniority. Justice Drowota worked to achieve unanimous decisions in the belief that they are more authoritative and engender confidence in the Court as an institution. His approach was to compromise on peripheral issues, never to compromise on principles, and to understand the difference.

In 1996, I accepted a one-year clerkship with Chief Justice Riley Anderson. I knew working with the Tennessee Supreme Court would be an interesting and challenging opportunity. I did not know my one-year clerkship would last over a decade.

DICTA

October 2018

Like any young lawyer in a judicial clerkship, I had the opportunity to learn about many areas of the law. Riley Anderson practiced law for 30 years before there was a Judge Anderson on the Court of Appeals, a Justice Anderson on the Supreme Court, or a Chief Justice Anderson. He had a passion for the profession and a deep knowledge of every area of the law. I also had the opportunity to observe the calm and insightful decision-making of a Justice on our highest Court. Justice Anderson authored hundreds of opinions and participated in thousands of decisions. He possessed a strong legal compass and a desire for opinions to be principled, workable, and fair. He was guided by the rule of law and the knowledge that the Court’s decisions had a profound impact on the litigants, the attorneys, the judges, and the citizens of Tennessee.

the courts open and fair for everyone. He served on commissions for racial fairness, gender fairness, and indigent defense. He led efforts in support of pro bono service, alternative dispute resolution, open and accessible courtrooms, legal education for students, and a strong and independent judiciary. Justice Anderson had an ideal judicial temperament. Thoughtful and understated, he did not need to raise his voice to be heard. Although he was enormously patient, he had no tolerance for theatrics or vitriol from the bench or the bar. He knew the strength of an argument in a difficult case depends on the quality of one’s legal reasoning and analysis and not the volume of one’s voice or the length of one’s brief. A man of few but meaningful words, Riley Anderson was a mentor to many of us and an example to us all. We will long be grateful for his leadership, vision, and enduring contributions to the administration of justice.

Justice Riley Anderson

Above all else, I had the opportunity to learn about the administration of justice. Justice Anderson believed the result in any case cannot be “Justice” unless the entire process is just. He was committed to making

TLL Tennessee Law Lab, Inc. Tennessee’s First and Only ABA Recognized Law Incubator

Established this year by local attorneys wanting to provide resources, education and support for new attorneys, solo practitioners, and small firms. TLL memberships include: Shared Office Space in the First Tennessee Bank Building, plus: Conference Room Access

Receptionist Services

Phone Forwarding

Commercial Printer/Copier

Attorney Mentors

Downtown Parking

Membership rates based on time practicing law: < 4 months 4 – 6 months 7 – 12 months > 12 months

$50 per month $100 per month $150 per month $200 per month

If you are interested in applying for a membership, please contact TLL President Michael J. Stanuszek at 865-696-1032 or at mjs@stulaw.org. 800 South Gay Street, Suite 700, Knoxville, Tennessee 37929 TLL is an IRS 501(c)(3) tax exempt entity

October 2018

DICTA

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

BENEATH THE INTERSTATE When the youngest of our four moved into the dorm at UT last month, Nancy and I became empty nesters. So, we moved downtown with our Golden Retriever. Nancy and I love it. Sophie is still making up her mind. I saw Charlie (not his real name) on Gay Street in late July. It was at a distance, but I recognized him immediately. It had been years since I’d seen him. The sight of his face revived great memories from my teenage years. The memories all led to a poker table at a friend’s house complete with visions of dealing cards and throwing money in the pot, all of us joking and laughing, and watching football or Caddyshack. It was on one of these many nights in the mid-1980’s that I drank my first beer. Charlie was always there. We’d pass money back and forth and sip on Goebels Light, an absolutely terrible beer, acting as though we’d been drinking it for years. My times with those great friends, many of which I still talk to regularly, involved the usual scenario for boys earning their stripes parents out of town and someone’s older sibling bought us beer. We were growing up, a bunch of west-Knoxville kids going through our adolescence in the mid-1980’s and doing our best to be good kids while testing the waters of adulthood. We were, in fact, good kids. It was a great time and place to come of age. We saw the first video on MTV and wore Member’s Only jackets. Our hair was worn in glorious mullets, our necks adorned with a single gold chain while Madonna, in her “Like-a-Virgin” wonder, made her way into our dreams. We didn’t have cell phones. If you wanted to talk to a girl, you had to call her from a phone attached to the wall or, heaven forbid, walk right up to her and talk face-to-face. Charlie’s shy nature and piercing eyes, the color of the Gulf of Mexico, made him popular among members of the fairer sex. He loved to gamble and play golf. He possessed a swing touched by angels. It was a swing that provided a ticket to college and could have led him even further. Charlie spoke very few words, but always made us laugh. He and I visited our first ATM together and joked about how the new invention wouldn’t last. I can place myself inside so many teenage memories and find Charlie there - throwing cards, drinking a beer, laughing, making me laugh. He was a good friend. I lost touch with him. He dropped out of college, joined the Army, and moved to Hawaii. He got married. Then, just like that, nothing. I’d heard through friends that he developed some mental problems - that he was bi-polar, even schizophrenic - and then became homeless. When I saw him on Gay Street at the end of July, I had my confirmation - Charlie was homeless. I knew I’d need to talk to him, but I didn’t know how. The situation would be inevitable. Would he know me? Would he ask for money? I just didn’t know. Why was I uncomfortable? I think I was worried about embarrassing him.

“Robbie,” he said. I knew the voice and jumped at the name that very few still call me. We talked. He seemed happy. He discussed how he loved Wednesday nights, the food was always good and the coffee was great. He talked of how he loved to help. I’d watched him set up tables, carry clothes and unfold chairs. I asked if I could hug him. He tilted his head and extended his hand, a move I took as refusal of my pity. He didn’t need it or want it. I had money in my pocket and would’ve handed it all to him, but he didn’t ask for any. I got the feeling that had I offered, the gesture would prove hurtful, maybe even ridiculous. I thought I would feel broken-hearted, that pity would be in abundance, and that I’d worry about my friend, but I got a different feeling - He was in his element. He was in a place of comfort, a place where he fit in. He had a role and was comfortable playing it. I knew this despite what I’d heard of his disease. Perhaps he was sad and I didn’t get it. But, just perhaps the life he now led was the simple life he needed or even desired. How could that be? The conversation ended quickly as duty called. I was left with more questions than answers. I watched as he continued to serve others. He stood at the end of the line for clothes, allowing others to go before him. The gesture ensured that he would not get any new clothes since his sizes were the most popular. A woman who serves there every Wednesday told me that Charlie was always the hardest worker, that he was quiet, lacked presumption or self-pity, and that he always liked to get a book from the stack of donations. Then, I watched as the servers and the served mingled, laughed, bumped fists, shook hands, hugged and broke bread together. I don’t know what I expected, but money had no place, either on the lips or in the hands of those gathered. Any misperceptions, discomfort, or fear that accompanied me down Broadway when I arrived melted away in the welcomed shade of elevated concrete as an overwhelming sense of community came over me. As I watched my old friend move among the homeless, a quiet peace settled beneath the sounds of cars traveling on the interstate above. The trappings of the busy world were stripped away so that things like a good cup of coffee and a used pair of jeans took on elevated, if not proper, meaning. The true spirit of humanity revealed itself, and I realized that the quest for inner peace, a contentment silently sought by each of us, was something my old friend had in his grasp. I felt envy.

When Nancy told me we were going to McGhee Avenue to serve the homeless, I was hesitant. In our remarkable marriage I have learned when to lead and when to follow. I have expanded my horizons and enriched my life whenever I agreed to simply follow. In this situation, I knew Charlie would likely show up. He did. I watched him, and to my surprise, he was helping set up. I told Nancy that I was going to talk to him as soon as we received our volunteer assignment, putting the meeting off to the last possible moment. Charlie didn’t wait.

DICTA

October 2018

PRACTICE TIPS By: Briana Rosenbaum Professor, University of Tennessee College of Law

REPRESENTING TRANSGENDER STUDENTS IN KNOX COUNTY SCHOOLS According to the Williams Institute, about 0.7 percent of youth ages 13 to 17 identifies as transgender – or a person whose gender identity is different than the sex they were assigned at birth. The number of children younger than 13 who identify as transgender, gender-creative, or gender-fluid, is harder to track, but is thought to be roughly the same. School officials occupy a unique position in the lives of these students, as choices such as which bathroom a student can use or what name a teacher calls them can affect a child’s safety, privacy, mental and physical health, socialization, and academic success.

bullying, verbal and physical harassment, and threats. Parents have reported that their children are not allowed to use restrooms consistent with gender identity, but are instead required to seek permission to use staff restrooms, and that staff continually “dead name” students (call them by the name on their birth certificates). These practices continually “out” children. As one parent explained to the Board, “This perpetual reminder that a child has been labeled ‘other’ is noticed by other children; it is noticed by them. Otherness leads to bullying, isolation, sometimes violence.”5

There is significant need for advocacy on behalf of transgender students. Below I suggest resources to jump-start a solution-centered practice in this area and provide a short summary of a few key areas of law.1

Dress: For transgender students, there is a particularly complicated relationship between the law and the choice of dress, gender expression, speech, safety, and identity. Knox County’s dress code policy is facially gender-neutral, but includes highly discretionary language, including requirements for “appropriate attire” and clothing that will not “draw attention to an individual.”6 Such language opens the door for discriminatory application.

Education and Resources: Transgender students have unique needs that may be unfamiliar to the advocates and school officials seeking to serve them. Assumptions about lawyering – including any initial instincts to threaten litigation – may not always be appropriate. Active listening to clients and their needs establishes trust and allows you to identify creative solutions for resolving conflicts. Resources to consider include: • http://safeschoolscoalition.org/ (articles, lesson plans, training, hotlines, support groups, model policies, and more) Knox County Policy J-211 (detailing a process for investigation and intervention upon receipt by the principle of a report of harassment, bullying, or intimidation) • https://www2.ed.gov/about/offices/list/ocr/docs/howto.html (although the Department of Education, Office for Civil Rights [“DOE,” “OCR”] has recently stated that it will not investigate restroom-related complaints, advocates recommend continuing to file complaints with the OCR; in addition, it is understood that the OCR is still investigating complaints of non-restroom related issues) • https://www.lambdalegal.org/publications/getting-down-to- basics (detailed guidance from an LGBT legal organization) Safety: All Knox County students, including transgender students, have the right to a safe, non-intimidating learning environment. Knox County School Board Policies explicitly ban harassment and discrimination on the basis of “actual or perceived gender,” and further prohibit “harassment, intimidation, bullying and cyber-bullying” of all students.2 Further, the Sixth Circuit has followed the overwhelming trend in federal courts by holding that discrimination and harassment based on transgender status and nonconformity with gender stereotypes is “sex” discrimination prohibited by Title IX.3 The Sixth Circuit‘s interpretation of federal law prevails in Knox County. Recent actions by the DOE narrowing the meaning of “sex discrimination” under Title IX, and Tennessee’s lack of explicit protection for transgender students under state law, do not supersede the Sixth Circuit’s interpretation of federal law. Accordingly, schools in Knox County must provide transgender students equal access to programs and facilities and prevent harassment due to transgender status or genderbased stereotypes.4 Despite these legal protections, Knox County parents describe severe and pervasive harassment of trans students, including cyberOctober 2018

Schools have great latitude in crafting “content neutral” dress code policies, such as length of skirts and hair style.7 But the act of choosing to dress in accordance with gender identity can itself include protected and expressive conduct. School officials should be wary of hindering this choice, for fear of creating a hostile environment and running afoul of the First Amendment, the Equal Protection Clause, and Title IX.8 Speech, Groups, and Expression of Viewpoints: All students in Knox County Schools have the right to express their viewpoints, as long as they are not substantially disrupting the learning environment. Similarly, Gay-Straight Alliances must be given equal access on school campuses. Lower courts, including in Tennessee, have specifically held that student expression on LGBT issues is protected expression.9 That said, courts uphold schools’ decisions to impose generally applicable, non-viewpoint speech restrictions.10 Advocates facing school restrictions (such as restrictions on reading books in schools), might work to find creative solutions by identifying and articulating impacts on expression, noting purported governmental interests, and proposing alternatives to suppression. 1 This list is not meant to be exhaustive; advocates of transgender students may encounter a variety of additional legal issues, including privacy, records and FERPA, and Tennessee’s name change process, among others. 2 Knox County Board of Education Policies J-210 “Harassment of Students” and J-211 “Harassment, Intimidation and Bullying or Cyber-Bullying.” 3 EEOC v. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018); Dodds v. U.S. Dep’t of Educ., 845 F.3d 217 (6th Cir. 2016). The Attorneys General of several states, including Tennessee, have requested cert in Harris Funeral Homes, arguing that discrimination based on transgender status is not “sex” discrimination within the meaning of Title XII and Title IX. 4 See Dodds, 845 F.3d at 222 (affirming grant of preliminary injunction requiring school to provide students access to sex-segregated bathroom consistent with gender identity). For examples of courts who found plaintiffs could bring Title IX, Equal Protection, and First Amendment claims against schools alleging harassing conduct and/or for failure to protect, see Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081 (D. Minn. 2000); Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996); Henkle v. Gregory, 50 F. Supp. 2d 1067 (D. Nev. 2001). See also Bloch v. Ribar, 156 F.3d 673, 685 (6th Cir. 1998) (holding that plaintiff raised a cognizable § 1983 claim against a sheriff for publicizing intimate, private information). 5 Knox County School Board Meeting, Testimony of Lindsay Burchette (May 3, 2017). 6 Knox County Board of Education Policy J-260 “Dress Code.” 7 Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 391 (6th Cir. 2005). 8 See, e.g., Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971); Crews v. Cloncs, 432 F.2d 1259 (7th Cir. 1970); Doe ex rel. Doe v. Yunits, 2000 WL 33162199 (Mass.Super. Oct.11, 2000). 9 See, e.g., Young v. Giles Cty. Bd. of Educ., 181 F. Supp. 3d. 459 (M.D. Tenn. 2015). 10 Blau, 401 F.3d at 391-93.

DICTA

LIFE IN LAW & HARMONY By: Leslie L. Beale, JD Executive and Developmental Coach Profusion Strategies

MANAGE YOUR ENERGY, NOT YOUR TIME One question I get asked a lot is “How can I better manage my time?”

you will never get control of your schedule.

We all seem to be on a quest to get more done, to feel more in control of our schedules, and to find room for the things that matter most to us. No matter how many tips or tricks we try, however, there are only twenty-four hours in every day. That’s why it’s sometimes more effective for us to focus on managing energy than managing time. In fact, what’s often really behind the desire to better manage time is desire to feel different – calmer, more proactive, better able to focus on the task at hand. In other words, our desire to manage time better is often a desire to have different energy. Our energy has a significant impact on our performance and our satisfaction. Think back to the last time you felt like you were really firing on all cylinders. I’d be willing to bet it wasn’t because you had implemented a new scheduling trick or bought yet another planner. In fact, I’d wager what really made the difference was that you were bringing a new energy to what you were doing.

To improve your energy, you must hunt down these thoughts and begin to shift them. Find new, more positive ways to frame the conversation in your head. Or, better yet, choose to pay attention to something else entirely – the things for which you’re grateful, the supportive people in your life, even the sun outside your window.

3. Determine the Energy You Want in Any Situation

Now that you know you have the power to shift your energy, it’s up to you to determine what you want to bring to each situation. Do you want to be a positive, calming influence? Or maybe a spark for big change? It’s really up to you. Before each activity in your day, take just a few seconds to reflect on what would be most productive and helpful. How should you show up? How would you need to feel to make that a reality? Then consciously tune into that energy within yourself. You might be surprised at the results you start to get…

Energy is the fuel that drives our efforts in all areas of our lives, and the things we bring the most positive energy to are the things that flourish for us. But isn’t our energy level pre-determined? Surely it must be genetic? And even if it’s not, improving our energy must require hours of dieting, exercise, or meditation – time we just don’t have. The good news is that energy is something we can manage through our choices. The even better news is that the choices don’t have to be complicated, time-consuming or mysterious. Just a few steps, practiced with discipline can help you feel more positive energy for the key activities of your day.

1. Keep the Physical Plant Running Smoothly

Energy is a combination of physical and mental attributes. To maintain high positive energy, you need to pay attention to your physical health. I’m not saying you need to take up marathon running or give up carbs (those who know me best would certainly laugh at such an idea). But, you do need to give some thought to the basics – getting enough sleep, eating reasonably well, and moving your body in some sort of exercise. You should also find some way to release the physical tension that builds up in your body. Gentle stretching, regular massage, or yoga practice are all great ways to do this. Find what works best for your personality and schedule and commit to practicing it regularly.

It’s a Family Matter

2. Do the Work to Manage Your Mindset

Asset Management | Trust Administration | Estate Services Since 1993, our focus has been on preserving our clients’ financial assets, managing growth, and efficiently transferring wealth from one generation to another. We work closely with attorneys to insure the coordination of our clients’ personal and financial goals.

If you accept that energy is a combination of the mental and physical, you must also accept that the things you think affect how you feel. How you feel drives what you do. What you do determines the results that you get. It seems like a fairly simple formula, and yet it’s one we ignore all too often. To maintain optimum performance, you must focus on the thoughts that are stealing your energy. I lovingly refer to these as energy traps, and they can hide themselves almost anywhere - in the pile of papers on your desk that leaves you wondering how you’ll ever get caught up, the difficult client who triggers your self-doubt, or your belief that

DICTA

To learn more about our services, contact:

John L. Billings, Vice President - Client Administration 865.297.4070 | tcvwealth.com A trust is not required to utilize our investment expertise. October 2018

L E G A L U P DAT E By: Vera Dygert TVA

SUPREME COURT FAILS TO DECIDE ON CONSTITUTIONAL LIMITS TO PARTISAN GERRYMANDERING On February 11, 1812, Elbridge Gerry, the governor of Massachusetts, signed into law a controversial redistricting plan that would give his party an advantage in state senatorial elections.1 In response, the Boston Gazette published a picture of a salamander-shaped election district, which it called “The Gerrymander. A New Species of Monster.”2 The word has since remained in national political discourse. Gerrymandering involves politicians manipulating electoral district boundaries and creating irregularly shaped districts for political gain.3 Despite hearing numerous cases on this topic, the Supreme Court has failed to articulate whether the Constitution sets any limits on partisan gerrymandering.4 Opponents generally argue that partisan gerrymandering violates the Fourteenth Amendment’s Equal Protection Clause, which prohibits states from “deny[ing] to any person within its jurisdiction equal protection of the laws,” by disfavoring supporters of one political party.5 Opponents also argue that partisan gerrymandering violates the First Amendment, which prohibits states from making any law “abridging the freedom of speech,” by undermining the amendment’s protection of “‘the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.’”6 This year, three gerrymandering cases in Wisconsin, Maryland, and North Carolina stalled as the Supreme Court justices again failed to address the issue of whether partisan gerrymandering violates the Constitution.7 Rather than deciding the cases on the merits, the Court decided the cases on technical grounds, with significant implications for the upcoming election in 2018. In Gill v. Whitford, Democratic voters alleged that the Wisconsin redistricting plan divided Democratic voters among different districts so that those voters would fail to achieve electoral majorities (“cracking”) and concentrated Democratic voters in a few districts in which they win by large margins (“packing”).8 Plaintiffs argued that the plan violated the Fourteenth Amendment’s Equal Protection clause and First Amendment rights of association and free speech by diluting the strength of Democratic voters based on their political beliefs.9 The District Court concluded that the plaintiffs proved violations of the First and Fourteenth Amendments.10 On appeal, however, the Supreme Court held that the plaintiffs failed to demonstrate standing, or a personal stake in the outcome, because they failed to show how gerrymandering affected their ability to elect a Democrat.11 Specifically, at trial, plaintiffs did not prove that they lived in a district that had been “packed” or “cracked.”12 Rather, they argued that the redistricting plan caused statewide injury to Wisconsin Democrats.13 The court stated that the case was about “group political interests, not individual rights” and that it was “not responsible for vindicating generalized partisan preferences.”14 Rather than dismissing the case, the Court remanded the case to give the plaintiffs an opportunity to prove standing.15 In Benisek v. Lamone, Republican voters in Maryland asked the District Court to issue a preliminary injunction to stop the state from enforcing its redistricting plan.16 The voters argued that the drafters of the redistricting plan strategically moved voting district boundaries based on citizens’ voting records and known party affiliations.17 They alleged that the purpose of the plan was to dilute Republican votes and prevent voters from electing Republican representatives.18 The District Court denied the motion for a preliminary injunction and stayed the proceedings pending a decision in Gill.19 The Supreme Court upheld the District Court’s holding that a decision in Gill had the potential to set the framework by which plaintiffs’ claims could be decided and remedied.20 October 2018

Finally, in Common Cause v. Rucho, the North Carolina Democratic Party and fourteen North Carolina voters filed a complaint alleging that a 2016 redistricting plan constituted partisan gerrymandering in violation of the Constitution.21 In that case, defendants did not dispute that [t]he Republican-controlled North Carolina General Assembly expressly directed the legislators and consultant responsible for drawing the 2016 Plan to rely on “political data” – past election results specifying whether, and to what extent, particular voting districts had favored Republican or Democratic candidates, and therefore were likely to do so in the future – to draw a districting plan that would ensure Republican candidates would prevail in the vast majority of the state’s congressional districts.22 The North Carolina District Court held that the redistricting violated the Equal Protection Clause, the First Amendment, and Article I of the Constitution.23 On appeal, without any discussion, the Supreme Court vacated and remanded the case to the District Court for “further consideration in light of Gill.”24 The cases filed this year at the Supreme Court demonstrate the growing partisanship at the state legislative level and that that voters, regardless of political affiliation, oppose practice of gerrymandering districts. Indeed, the Supreme Court has stated that partisan gerrymandering is “incompatible with democratic principles.”25 In her concurrence in Gill, Justice Kagan wrote: Partisan gerrymandering jeopardizes the ordered working of our Republic, and of the democratic process. It enables a party that happens to be in power at the right time to entrench itself there for a decade or more, no matter what the voters would prefer. At its most extreme, the practice amounts to rigging elections. It thus violates the most fundamental of all democratic principles – that the voters should choose their representatives, not the other way around.26 While this practice has existed throughout America’s history, the problem has become particularly acute in the twenty first century because, as Justice Kagan pointed out in Gill, [n]ew redistricting software enables pinpoint precision in designing districts. With such tools, mapmakers can capture every last bit of partisan advantage, while still meeting traditional districting requirements . . . Gerrymanders have thus become ever more extreme and durable, insulating officeholders against all but the most titanic shifts in the political tides.27 Governor Gerry was ultimately defeated in the April 1812 gubernatorial election as a result of voters’ reaction to his highly partisan agenda.28 Given the publicity surrounding the issue of gerrymandering today, voters in 2018 may react similarly. Unfortunately, the status quo of the gerrymandered districts in all three states will remain. On August 27, 2018, a three judge panel stated that the plaintiffs in Common Cause had standing and that the North Carolina redistricting plan violated the Constitution.29 In a subsequent order, however, the judges also said there was insufficient time for the Court to approve a new redistricting plan in advance of the November 2018 general election and declined to enjoin the use of the redistricting map.30 The constitutionality of the redistricting plans in Wisconsin and Maryland remain undecided.

DICTA

(Continued on page 12)

BAR HOPPING By: Brady Cody Lewis Thomason

New for 2018, Bar Hopping will highlight one of the many beautiful courthouses around the State. The trick? It is up to you to figure out where. Congratulations to Sherri D. Alley, Stewart M. Crane, Edward Shultz, E. Brian Sellers, and Joseph White for correctly identifying the Knox County Probate Courtroom. This month we’re staying inside the courtroom. Think you need a hint? I don’t think one is warranted. Think you can name this courthouse? Email me at bcody@lewisthomason.com with your answer. Correct answers will receive a shout-out in the next issue of DICTA. Check back next month for the reveal and a list of the big winners. Have a photo that you would like to submit? Send me an email and have it featured in an upcoming issue.

SUPREME COURT FAILS TO DECIDE ON CONSTITUTIONAL LIMITS TO PARTISAN GERRYMANDERING (Continued from page 11)

1 Mark O. Hatfield, Vice Presidents of the United States, 1789-1993 63-68 (1997), available at https://www.senate.gov/artandhistory/history/common/generic/VP_Elbridge_Gerry. htm; Jennifer Davis, Elbridge Gerry and the Monstrous Gerrymander, Library of Congress (Feb. 10, 2017), https://blogs.loc.gov/law/2017/02 elbridge-gerry-and-the- monstrous-gerrymander. 2 Davis, supra note 1. 3 Hatfield, supra note 1, at 63-68. 4 See, e.g., League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006); Vieth v. Jubelirer, 541 U.S. 267 (2004); Davis v. Bandemer, 478 U.S. 109 (1986); Gaffney v. Cummings, 412 U.S. 735 (1973). 5 U.S. Const. amend. XIV. See Common Cause v. Rucho, 2018 WL 4087220, at *47 (M.D.N.C. 2018). In Common Cause, the District Court stated that “a redistricting plan violates the Equal Protection Clause if it ‘serve[s] no purpose other than to favor one segment – whether racial, ethnic, religious, economic or political – that may occupy a position of strength ... or to disadvantage a politically weak segment.’” Common Cause, 2018 WL 4087220, at *47 (citing Karcher v. Daggett, 462 U.S. 725, 748 (1983) (Stevens, J. concurring)). 6 U.S. Const. amend. I. See Common Cause, 2018 WL 4087220, at *33 (citing Williams v. Rhodes, 393 U.S. 23, 30-31 (1968)). 7 See Benisek v. Lamone, 138 S. Ct. 1942 (2018); Gill v. Whitford, 138 S. Ct. 1916 (2018); Rucho v. Common Cause, 138 S. Ct. 2679 (2018). 8 Gill, 138 S. Ct. at 1920, 1924. 9 Id. 10 Gill v. Whitford, 218 F. Supp. 3d 837 (W.D. Wisc. 2018). 11 Gill, 138 S. Ct. at 1921-22. Standing requires a showing of a “personal stake in the outcome of the controversy.” Id. at 1929 (citing Baker v. Carr, 369 U.S. 186, 204 (1962)). Specifically, a plaintiff must show that he “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. (internal citations and quotations omitted). 12 Id. at 1932. 13 Id. 14 Id. at 1933. 15 Id. 16 Benisek, 266 F.Supp.3d 799, 802 (D. Md. 2017).

Id. at 827 (Niemeyer dissenting). Id. 19 Id. at 816. 20 Benisek, 138 S. Ct. at 1945. 21 Common Cause v. Rucho, 279 F.Supp.3d 587, 597, 605 (M.D.N.C. 2018) (vacated and remanded). 22 Id. at 597. The state legislator responsible for redrawing the districts stated that he thought that “electing Republicans is better than electing Democrats.” Id. 23 Id. at 690. 24 Rucho, 138 S. Ct. at 2679. 25 Gill,138 S. Ct. at 1934-35 (Kagan, E. concurring) (citing Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015) (quoting Vieth, 541 U.S. at 292)). 26 Id. at 1940 (internal citations and quotations omitted). 27 Id. at 1941. 28 Hatfield, supra note 1, at 63-68. 29 Common Cause, 2018 WL 4087220, at * 108. 30 Common Cause v. Rucho, 2018 WL 4214334, at *1 (M.D.N.C. 2018). 17 18

DICTA

October 2018

AROUND THE BAR By: Reggie E. Keaton Frantz, McConnell & Seymour, LLP

KNOXVILLE BAR FOUNDATION HONORING ATTORNEYS OF DISTINCTION AND SUPPORTING OUR LEGAL COMMUNITY

The Knoxville Bar Foundation plays an important role in supporting our legal community. Established in the early 90’s, the Foundation provides a means for grants to be made to support important programs and projects. The funding for the grants comes primarily from the Fellows of the Foundation. The Fellows program of the Foundation publicly honors and recognizes attorneys who have distinguished themselves in the legal profession and in service to the Knoxville legal community. This year the new Class of 2018 Fellows was introduced and welcomed into the Foundation at its annual dinner held on May 1. The Foundation was proud to honor and recognize the following as the members of the 2018 Class: Jamie Ballinger-Holden Christopher A. Hall Mark P. Jendrek John M. Lawhorn Gregory C. Logue Matthew R. Lyon Hon. Thomas W. Phillips Adam M. Priest Ellen Joy Radice Brooklyn Sawyers Belk Catherine E. Shuck Hon. Thomas A. Varlan John B. Waters, III

The Fellows were selected from an outstanding list of nominees received from the members of the Foundation. This list was narrowed by vote of the Board of Directors due to the limited number of Fellows that can be chosen for each class. After being selected, the Fellows were introduced at the annual dinner. The introductions provided a brief summary of their background and accomplishments along with some interesting and humorous anecdotes from their past. The reputation that each new Fellow holds in our legal community reveals that the Class of 2018 exemplifies the highest of ethical and professional standards and consists of individuals who continue to have a positive impact upon our profession. The Foundation is also proud to announce that it has awarded grants this year to the following entities: •

CASA of East Tennessee for recruiting and training volunteers

•

Catholic Charities of East Tennessee, Inc. in support of its Office of Immigrant Services

•

Dogwood Elementary School Ambassadors Schoolhouse to Courtroom Program

•

Knoxville Bar Association Archives Committee for video inter - views of senior members of the bar

•

Knox County Juvenile Court in support of the ASSIST program for status offenders

October 2018

•

Knoxville and Knox County Community Action Committee Office on Aging in support of its Grandparents as Parents Program

•

Legal Aid of East Tennessee to continue funding the Knoxville Bar Foundation Fellowship for hiring a law student for the Pro Bono Project

•

SEEED, Inc. in support of its job readiness program

•

U.S. District Court of the Eastern District of Tennessee and Federal Bar Association Justice for All program for underserved high schools in Knox County

•

YWCA of Knoxville to support the Victim Advocacy Program

The total sum of all grants awarded this year is $25,000.00. The Foundation’s goal is to facilitate and support projects and programs that seek to improve the administration of justice, to enhance the public’s understanding of and confidence in the legal system, to support access to the legal system, and to serve the legal profession. Since 1997, the Foundation has awarded grants totaling approximately $420,000.00. Each year the Foundation solicits and receives multiple applications for grants. This year the grant requests totaled approximately $64,000.00. Each application was reviewed by the Board of Directors, and a determination was made as to what, if any, sum should be awarded for each application. The Foundation’s Board of Directors for the preceding year were Heidi Barcus, Bill Coley, John Harber, Reggie Keaton, Morris Kizer, Harry Ogden, Mary Ann Stackhouse, The Honorable Deborah Stevens, and Charles Swanson. Harry Ogden has served as the Foundation’s treasurer for the past five years, and he was recognized at the annual dinner for his outstanding service and dedication to the Foundation. If you would like to make a financial contribution to help support the work of the Foundation or if you would like to learn more about the Foundation, please feel free to contact me, our new treasurer, Bill Coley, or any other member of the Board of Directors.

DICTA

JUDICIAL PROFILE By: Susan Kovac Department of Children’s Services

STACY ECKARD Stacy Eckard was sworn in on September 17, 2018, as Knox County Juvenile Court’s newest magistrate. No, nobody is leaving. Due to the increasing volume of cases handled by Juvenile Court, an additional magistrate position has been created and Stacy has been chosen to fill it. She will hear every type of case except child support. Judge Irwin has noted that he expects her to be able to do any job in the building. Her professional career has prepared her well for this challenge. Stacy is a home-town girl. She grew up in Knoxville and graduated from Carter High School. Her mother, Janette Green, worked for many years as an alterations manager in some of the best dress departments in Knoxville. She retired from Saks. And, yes, she did make Stacy’s Halloween costumes. Her father, Doug Haskew, is a retired architect who was involved in construction of many buildings on the UT campus and around town. Stacy entered UT as a pre-vet major. That lasted until she got a job at the vet school and decided that really wasn’t for her. Instead, she graduated in 1999 with a degree in psychology and sociology and no real focus other than wanting to do something to make the world a better place. Her first job was with CSA (Community Services Agency), an independent public agency that provided services for DCS under contract. In Knox County, CSA managed placement for all the children in foster care and that was Stacy’s responsibility. She read all the information available about a child needing placement and tried to match that child with the best family or group home or residential facility able to meet the child’s needs. She learned a lot about the needs of children in this community and about the abuse and neglect the suffer. She also learned how difficult it is to find the best services for a particular child, especially when the only thing you know about the child is what you read. Stacy wanted to do something better for children. In 2002, Stacy joined the staff of Knox County Juvenile Court as a probation officer. She got to know the real children, not just their paper profiles. During her four years in this job she worked with youth charged with unruly and delinquent offenses. She saw the whole range, from possession of marijuana to attempted murder. She learned how to talk the children and their families. But she experienced some of the same frustrations. These children were not getting all they needed. Sometimes what they needed was a better advocate. Stacy wanted to do something better for children. Stacy entered UT College of Law in 2006. She handled cases in Juvenile Court through the Legal Clinic under Professor Jerry Black’s supervision and did an externship in Juvenile Court with the Public Defender’s Office. She learned how to analyze a case, to break down the charges and identify the elements and she learned how to analyze the options available. She watched professionals dedicated to these children as they sought the best placements and services.

nile Court cases in addition to a regular array of family law work. She took appointments to represent parents, to represent children charged with delinquent offenses, and to be the child’s voice as Guardian ad Litem. She still wanted to do something better for children. In 2013 Stacy was hired by the Department of Children’s Services to litigate severe abuse cases in Knox County Juvenile Court. She has tried those cases and resulting appeals and participated on CPIT (the team that reviews every sex abuse or severe physical abuse case investigated by DCS). Her efforts have protected many hundreds of Knox County children. And she still wants to do something better. She believes that her position as a magistrate will give her the opportunity to continue to make a difference. How does she escape the stress and vicarious trauma from the daily exposure to child abuse? She has a wonderful family. Her husband of 18 years, Doug Eckard, is a firefighter and paramedic who works fulltime at ORNL and occasionally fills in for Rural Metro. Their son Logan (age 15) is a sophomore at Concord Christian. He plays trumpet. Stacy has become a huge “band mom.” Their daughter, Rachel (age 5) just started kindergarten at Northshore Elementary. She’s a “girly girl” who loves glitter and sparkles and changes her outfits to be sure she has just the right one. Where did she get that? Stacy loves fashion. She is particularly vulnerable to shoes and purses. Her mother introduced her to JTV Special Events. She works the shows, meets interesting people from across the country, and, even with her employee discount, often spends more than she makes. She loves Disney and theme parks. She has to see everything, go everywhere. Her husband begs to go home so he can go back to work and get some rest.

ue to the increasing volume of cases handled by Juvenile Court, an additional magistrate position has been created and Stacy has been chosen to fill it. What do you need to know to be successful in Stacy’s courtroom? Be on time. Be prepared and ready to go. Stacy does not enjoy “down time.” If you need to negotiate, get that done before your case is called. (Hints: she has a sweet tooth; if your trial is going to run through lunch, get her some mac & cheese.) Stacy notes that the pool of attorneys currently practicing in Knox County Juvenile Court is really too small to serve the number of clients and to supply the demands of six courtrooms. Too many delays happen because attorneys are tied up in another hearing. She urges you to get on the appointment list, become familiar with the work of this court, and make your own commitment to do something better for Knox County’s children.

During her last year in law school, Stacy clerked with Schwamm, Albiston & Smith. She joined that firm upon graduation, with a condition of her employment that she would carry a substantial load of Juve-

DICTA

October 2018

ANNUAL FALL HIKE SATURDAY, OCTOBER 13, 2018 The Professionalism Committee invites you to the annual fall hike on Saturday, October 13, at 10:00 a.m. at the House Mountain State Natural Area. House Mountain is Knox County’s highest peak and one of our most beautiful outdoor destinations. The hike will be 1.6 miles round trip. We will be meeting at the trailhead parking lot where there are bathrooms and a covered picnic area. We will take the West Overlook Trail to the West End Overlook and will return the same route. We will enjoy food and drinks when we are back at the picnic area. If you can’t hike with us, at least come and enjoy some of the food and drinks. Please confirm your participation by registering online (click on October 13, 2018, on the event calendar at www.knoxbar.org). If you have questions about the hike, please contact James Ensor at james.ensor@ ensorlaw.com. And if you plan on bringing food or drink, please let James know that as well. Everyone is welcome to bring their family (pets are allowed as long as they are on a leash), and join us on Saturday, October 13th! Directions: The Google maps destination for “House Mountain State Natural Area” won’t take you to the trailhead parking lot, so plug in “9601 Hogskin Road” into your navigation app. From Knoxville, take I-40 East. Exit on U.S. Highway 11 West/Rutledge Pike and head north and east on Rutledge Pike. After about 10 miles, look for the “House Mountain State Park” sign on the right and then turn left on Idumea Road. Turn left on Hogskin Road. Then the parking area is less than a mile down on your right.

Photo Op

October 2018

SEERSUCKER FLASHMOB

On August 31st, the KBA held an end of summer celebration Seersucker Flashmob which has become a KBA tradition.

DICTA

Privacy, Phones and Location Data: The Supreme Court’s Decision in Carpenter v. United States Most of you reading this article have your cell phone close at hand. Perhaps it is on your desk. Or in your pocket. You probably don’t go many places absent having your phone. You use the phone to check your bank account, conduct legal research, get directions, order food, shop for clothes, edit documents, look at your social media accounts, review your medical information, pay bills, and communicate in a variety of ways (video, text, voice) across multiple applications throughout the day. It is likely even near your bed at night. Modern mobile phones are small, constantly communicating computers that are almost always with you and touch almost every aspect of your private and work lives. Your personal videos and photographs, bank account information, medical information, messaging, and any number of things that you access using the phone are all stored with third-party companies. As society marches forward, the law always walks, more slowly, a few paces behind. With the United States Supreme Court’s decision in Carpenter v. United States,1 the law moved a step closer to modern life by recognizing we have a right of privacy in our location data, even if it is stored with a third-party phone company. Recognizing privacy in location information In Carpenter, the Court held that the government must obtain a warrant to obtain a person’s cell-site location information (“CSLI”) – time stamped location data that is constantly generated by a person’s cell phone and is stored by his or her wireless provider.2 The Court recognized an expectation of privacy in a map of an individual’s physical location and noted that the CSLI “provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious and sexual associations. These location records ‘hold for many Americans the ‘privacies of life.’”3 For these reasons, a person has a reasonable expectation of privacy in their CSLI.4 The Supreme Court has recognized that “cell phones and the services they provide are ‘such a pervasive and insistent part of daily life’ that carrying one is indispensable to participation in modern society.”5 Carpenter builds on the Court’s earlier decision in Riley v. California, which held that law enforcement officers may not search a cell phone without a search warrant based on probable cause, even when seized incident to a lawful arrest, and recognized a privacy interest in the entirety of the activity on the phone.6 The Court emphasized that “[a] person does not surrender all Fourth Amendment protection by venturing into the public sphere” and “individuals have a reasonable expectation of privacy in the whole of their physical movements.”7 Chipping away at the third-party doctrine In Smith v. Maryland,8 the United States Supreme Court held that there is no reasonable expectation of privacy in call logs stored with

the phone company, relying on a third-party doctrine that presumes there isn’t a reasonable expectation of privacy in what is held by a third-party. Other cases from the Court have revealed, though, that the third-party doctrine is not a per se rule.9 In recognizing the privacy interest in CSLI – your location information stored by your phone and the third-party phone company – the Supreme Court in Carpenter further chipped away at the third-party doctrine, making its relevance questionable in a modern society where much of our most private and personal information is stored by third parties. Implications for Civil Litigants Civil practitioners might shrug off Carpenter as inapplicable to their work, but important insights may be gleaned from it. Here are four suggestions: 1. Analogize to the holding. Start with what the Court says it held: “[A]n individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.”10 With only that holding in hand, a civil litigant – or, perhaps more likely, a non-party subpoena recipient – could analogize the electronically stored information (ESI) they want to protect to CSLI when seeking a protective order or moving to quash. Divorcing spouses, feuding corporate officers, non-compete agreement parties, and intellectual property purveyors are a few of the clients who might want to ask a court to limit discovery of their ESI claiming a request is too invasive, unreasonable, and disproportionate to the stakes of the case. Carpenter can help energize their arguments. 2. Avoid stretching it too far. Note what the Court expressly says it doesn’t hold: among other CSLI-specific things, it declined to opine about the limits on “conventional surveillance techniques and tools, such as security cameras” or “other business records that might incidentally reveal location information.”11 There are your outer boundaries for citing Carpenter in civil discovery motions. With the proper foundation laid, a court in a civil action likely would find discoverable and admissible the recordings of a security camera, the logs of an ID card-swiping entry system, or a credit card bill showing purchases of airfares, rental cars, and meals and incidentals that could outline a whole trip. 3. Watch the test for privacy begin to change. Three of the four dissents in Carpenter dwell on the third-party doctrine and nod at the federal Stored Communications Act, which Justice Alito allows might need a reboot. The Court’s rookie, Justice Gorsuch, focuses on something different in Carpenter. After he identifies the problems with the more traditional reasonable expectation of privacy test first recognized in Katz v. United States,12 Justice Gorsuch suggests we revert to pre-Katz

DICTA

October 2018

COVER STORY By: Stephen Ross Johnson Ritchie, Dillard, Davies & Johnson, P.C. By: Charles E. Young, Jr. Consolidated Nuclear Security, LLC cases focusing on whether the “persons, houses, papers, and effects” were “yours under law.”13 His approach is property-based, and would ask precisely what kind of interests you retained when you gave your papers and effects to a third party. He draws on the law of bailments and parses a telecommunications statute to conclude that “[n]eglecting more traditional approaches may mean failing to vindicate the full protections of the Fourth Amendment.”14 This approach to privacy via property rights was resurrected for modern times by the late Justice Scalia, writing for the majority in Jones v. United States, 15 a decision critical to the holding in Carpenter. Just as the common law doctrine of trespass to chattels helped early electronic litigants sustain causes of action against spammers,16 perhaps a closer look at the “bundle of sticks” in one’s property rights in data could help convince a judge that a discovery request is valid or not. Data uploaded to Facebook, Evernote, Dropbox, or any other app-ofthe-moment might well be yours, just like your car left with the valet, or your pet left with a friend during your vacation, to borrow two of Justice Gorsuch’s examples. At a minimum, his dissent in Carpenter and the majority’s decision in Jones compel you to take a long look at the terms of service when you entrust your data to others, so you can manage your own expectations – and that you look at those terms on behalf of your clients when you want to protect what’s “theirs.”

Carpenter v. United States, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018). Id. at 2219. 3 Id. at 2217 (2018) (citing Riley v. California, 134 S.Ct. 2473, 2495 (2015)). 4 Id. at 2219. 5 Id. at 2220 (2018) (citing Riley). 6 Riley at 2493-94. 7 Carpenter, 138 S.Ct. at 2217. 8 442 U.S. 735, 744-45 (1979). 9 See City of Los Angeles v. Patel, 135 S.Ct. 2443, 2451-2454 (2015) (voiding California law that required hotel owners to disclose guest lists to law enforcement without a warrant); Riley v. California, 134 S.Ct. 2437 (2015) (holding government must have warrant to search an individual’s cell phone and rejecting government’s argument, premised on Smith, that it should be able to warrantlessly search call logs on the phone); Ferguson v. City of Charleston, 532 U.S. 67, 83 (2001) (recognizing Fourth Amendment privacy interest in patient records held by hospital). 10 Carpenter, 138 S.Ct. at 2217. 11 Id. at 2220. 12 389 U. S. 347 (1967). 13 Carpenter, 138 S.Ct. at 2268 (Gorsuch, J., dissenting). 14 Id. at 2272. 15 565 U.S. 400 (2012) (holding that installing a location tracking device on a vehicle constituted a “trespass” on the vehicle and a therefore a search under the Fourth Amendment) 16 E.g., CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997) 1 2

4. Use the docket as a resource. Anyone conducting electronic discovery would be well served to create a digital library of the Court’s opinion and the parties’ briefs and those of amici. Then you can go as far into the technological and philosophical weeds as your heart desires – or your client’s needs dictate. Like most any case that the Supreme Court deigns to hear, Carpenter has (1) a rich backstory with details that could resonate in your client’s case, and (2) a host of keenly interested non-parties who invested thousands of dollars crafting arguments to educate and persuade the Court. You can leverage those arguments for your clients. And you can do so for free on scotusblog.com, where all the briefs are posted.

LA VOZ HISPANA Violeta Barraza-Young rlavozhispana@gmail.com

Spanish Interpreter/Paralegal Post Office Box 51334 Knoxville, Tennessee 37950 Cell (561)398-6463 Interpreting Experience for 22 years in Legal Settings, Settlements, Depositions, Attorney-Client Conferences, Witness Interviews, etc. Member ATA (American Translators Association) TAPIT (Tennessee Association of Professional Interpreters and Translators TPA (Tennessee Paralegal Association) NFPA (National Federation of Paralegals)

October 2018

DICTA

October 2018

O F T H E R M O M E T E R S & T H E R M O S TAT S By: Gary R. Wade LMU Duncan School of Law

ATTORNEY GENERAL: A LAWYER OR POLITICIAN? In the 2014 judicial elections in Tennessee, Republican Speaker of the Senate, Ron Ramsey of Blountville, led a campaign to unseat the three incumbent supreme court justices (including yours truly) primarily because each had been appointed by former Governor Phil Bredesen, a Democrat. There was also an underlying issue related to the Court’s 2006 selection of Bob Cooper, a Democrat, as the state’s Attorney General. Cooper’s credentials included a Princeton undergraduate degree, Editor of the Law Review at Yale, a partner in a prominent Nashville firm, and legal counsel to the Governor. Although all justices won their non-partisan retention elections by a wide margin and afterward selected as Attorney General Knoxville Republican Herbert Slatery, who had served as legal counsel to Governor Bill Haslam, the issue has not gone away. In this past session of our General Assembly, veteran East Tennessee Senator Ken Yager sponsored a bill to amend our constitution which would require any appointment of an attorney general to be subject to confirmation by the Senate and the House of Representatives. By a 28-1 vote, the Senate approved the bill, but the House chose not to act. In consequence, the measure, if ever presented for vote of the people as a constitutional amendment, must start anew next January. Of the fifty state attorneys general in the United States, forty-three are elected in popular, partisan elections. All have four-year terms except for Vermont’s, who has a two-year term. The governors of Alaska, Hawaii, New Hampshire, and Wyoming appoint their attorneys general. In Maine, the legislature elects its attorney general at two-year intervals. Tennessee is unique in that Article VI, section 5 of the state constitution provides that an “attorney general . . . shall be appointed by the judges of the Supreme Court . . . for a term of eight years.” Tenure in the office corresponds to the eight-year terms of our supreme court judges. Charged with the responsibility of protecting the public, the duties of our attorney general are both civil and criminal in nature and, among other things, include consumer protection, enforcement of tobacco laws, oversight and review of non-profit organizations, and representing the state in the appeals of criminal convictions. The attorney general is also empowered to render opinions on legal issues of public interest. The stated mission of the office is straight forward: “We are the State’s law office serving Tennessee with principled, independent, and excellent counsel.” Many believe this is the most important public office in the legal profession, and in some states, the position is viewed as a stepping stone to governor. As examples, the current governors of North Carolina, New York, Montana, South Carolina, and California had previously served as attorneys general. Since the creation of the office in 1831, however, no Tennessee attorney general has ever been elected governor. During his days in the state legislature, former Knoxville Mayor Victor Ashe, a Republican, advocated changing the constitution to allow a popular election for the office of attorney general as a means of achieving more transparency in the process. On the other hand, former state senator Doug Overbey, also a Republican, favors the current system. Now the United States Attorney for our district, Overbey contends that the best attorney, not the best politician, should serve in the office, and that our supreme court, having observed the work of many of the top attorneys first hand, is in the best position to decide who is most qualified. The ongoing debate over the selection process reminds me of a story which began almost sixty-five years ago. Like most states, neighboring Alabama has always selected its attorney general through the traditional election process. In 1954, Democrat Albert (Pat) Patterson ran for the office on the promise that as the state’s top law enforcement official, he would clean up Phenix City, then a mob-controlled town located just across the Chattahoochee River from Columbus, Georgia and the Army base at Fort Benning. Nicknamed “Sin City,” the area offered gambling, prostitution, bootleg liquor, drugs, back-room abortions, baby selling, and the numbers racket. Within October 2018

two weeks after capturing a hotly contested Democratic primary, which at that time in Alabama all but assured election, Patterson was assassinated by three gunshots to the face as he walked from his law office to his car. He was well aware that his life was in danger. The night before the shooting, he had announced at a church gathering that he had only “a 100 to 1 chance of ever being sworn in as attorney general.” Patterson’s son, lawyer John Patterson, age 33 at the time, assumed the nomination, won, and, after taking office, helped end the corruption in Phenix City. At least four books have been written on the assassination of Albert Patterson. In 1955, a movie, The Phenix City Story, was released, starring John McIntire as the elder Patterson and Richard Kiley as the younger. In real life, a special Birmingham grand jury convened after the assassination and handed down 734 indictments against law enforcement officers, elected officials, and business owners connected to organized crime. Chief Deputy Sheriff Albert Fuller, rackets-connected lawyer Arch Ferrell, and the previous Attorney General, Si Garrett, were indicted for the Patterson murder. Of the three, only Fuller was convicted. Ferrell was acquitted, and Garrett, who convalesced in a mental institution after the murder, was never brought to trial. Today, a statue of Albert Patterson stands on the grounds of the Alabama State Capitol. Otherwise considered as a progressive attorney general by the standards of the day, John Patterson refused to follow the landmark 1954 ruling in Brown v. Board of Education, and defended Alabama’s segregated public school system. In consequence, he earned the endorsement of the Ku Klux Klan when he ran for governor in 1958. Patterson defeated George Wallace in the Democratic primary on the promise to fight organized crime, public corruption, and the integration of the schools. He served as governor until term limited in 1963. Wallace succeeded Patterson for a four-year term. In 1966 Patterson ran again, but he was defeated by Wallace’s wife, Lurleen. Later Patterson renounced his stand on segregation, explaining that his most regrettable act as governor was to permit his speeches, particularly those on segregation, to be published in book form. In 1984, during his fourth and final term, Governor Wallace, perhaps wary of another gubernatorial challenge by Patterson, appointed him as the Presiding Judge of the Alabama Court of Criminal Appeals. Patterson was elected and re-elected until his retirement in 1997. His last judicial act occurred in 2004 when he was assigned to sit as Chief Justice of a special supreme court to consider the appeal of Alabama Chief Justice Roy Moore, who had been ousted from office for refusing to follow an order of the federal courts. Patterson and his special court upheld Moore’s ouster. In the 2010 documentary “Freedom Riders,” Congressman John Lewis and Tennessean John Seigenthaler, who had served as an aide to United States Attorney General Robert F. Kennedy, reflected on their respective roles in one of the more important events in the civil rights movement of the 1960s. Patterson recalled that as governor, he had assured Kennedy that the freedom riders, both black and white, could safely travel through Montgomery on their way to Mississippi. Nevertheless, a mob attacked them at the Greyhound Bus Terminal and also attacked the reporters covering their travels. Seigenthaler was knocked unconscious. Martin Luther King, Jr., who had initially refused to provide support for the riders, arrived on the scene. Patterson, who believed he had been betrayed by the local police chief, then called on the National Guard for protection. In 2008, the same John Patterson who had defended school segregation as a young attorney general publicly endorsed Barack Obama for president. Today, at age 97, he lives with his wife, Tina, at a lakeside cottage in Goldsville, Alabama, 75 miles and 64 years away from his father’s Phenix City assassination.

DICTA

barrister bullets MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of every month at the Bistro by the Bijou (807 South Gay Street). Social time begins at 5:00 p.m., and the meeting begins promptly at 5:15 p.m. The next meeting will be held on October 10, 2018. There are many opportunities to get involved, so please contact Barristers President Mitchell Panter (tmp@painebickers.com) or Vice President Mikel Towe (mtowe@lewisthomason.com) for more information. ACCESS TO JUSTICE The next Veterans Legal Clinic is scheduled for noon on October 10, 2018, at the Knox County Public Defenders’ Community Law Office from 12:00 p.m. to 2:00 p.m. If you are interested in signing up for the Veterans Clinic, click October 10 in the event calendar at www.knoxbar.org ATHLETICS The Barristers and the KBA joined together to co-host the annual four-person golf scramble on Monday, October 22, 2018 at the Holston Hills Country Club. If you know of someone who would like to participate as a hole sponsor, please contact Jeremey Goolsby at JGoolsby@londonamburn.com or Bryce Fitzgerald at BFitzgerald@kramer-rayson.com. DIVERSITY The Barrister’s Diversity Committee invites you to attend its Annual Fall Diversity Mixer on October 25, 2018 from 6:00-8:00 p.m. at the Pretentious Beer Company, 131 S. Central Street. The focus will be on the social aspect of building our community, so there will be no educational program, no keynote speaker, and no lecture. Instead, law students and local attorneys from a diverse range of backgrounds will have an opportunity to meet and get to know one another. Two complimentary drink tickets will be provided while supplies lasts. RSVP by clicking on October 25th on the KBA Events Calendar or by calling 865-5226522. Please RSVP by October 22nd.

HUNGER & POVERTY The Hunger and Poverty Relief Committee’s annual coat drive will take place October 8-22.Coats will be collected at various locations around town as part of KARM’s Coats for the Cold Initiative. Please keep an eye on KBA for more details! Contact Courtney Panter (crhoupt@gmail.com) or Meagan Collver (mdaviscollver@londonamburn.com) with any questions. MEMBERSHIP COMMITTEE The Welcome Reception for New Bar Admittees will be on Monday, November 5, 2018 from 5:30-7:00 p.m. at Elkmont Exchange, 745 N. Broadway. KBA Members are encouraged to attend this festive occasion to welcome the 2018 new admittees to our local legal community. The Knoxville Barristers host this event and all KBA members are invited to attend this free event. Drink tickets and light refreshments are provided compliments of Pugh CPA’s, our event partner. The KBA New Lawyers Section has planned a one hour CLE entitled “Law Practice 101” featuring Shelley S. Breeding, Breeding Henry Baysan PC, before the New Admittee Reception. This CLE will cover everything from how to hang your own shingle, managing attorney/client relationships and client expectations, and how to turn a profit. The CLE has been approved for 1 hour of Dual CLE Credit and is open to all attorneys regardless of experience. Register online by clicking November 5 on 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 2019, please contact Paul E. Wehmeier at pwehmeier@adhknox.com, Matthew Knable at knablelaw@gmail.com, or sign up on the KBA’s website at http://www.knoxbar.org/KBA-News/help-volunteer-ministries.

Address Changes

DICTA

Please note the following changes in your KBA Attorneys’ Directory and other office records: Christina Magrans-Tillery BPR #: 032237 City of Knoxville Law Department 400 Main St. SW, #699 Knoxville, TN 37902 Ph: (865) 215-2050 CMagrans@knoxvilletn.gov

Tony R. Dalton BPR #: 014812 Priority Ambulance 9721 Cogdill Rd., Suite 302 Knoxville, TN 37932-3425 Ph: (865) 688-4999 tdalton@priorityambulance.com

Adam F. Rust BPR #: 027507 Lewis, Thomason, King, Krieg & Waldrop, P.C. 620 Market Street, 5th Floor Knoxville, TN 37902-2237 Ph: (865) 546-4646 arust@lewisthomason.com

Devin P. Lyon BPR #: 032232 Arnett, Draper & Hagood, LLP 800 S. Gay Street, Ste 2300 Knoxville, TN 37929-9713 Ph: (865) 546-7000 dlyon@adhknox.com

David L. Morehous BPR #: 020217 Morehous Legal Group, PLLC 308 N. Peters Rd., Suite 201 Knoxville, TN 37922-7517 Ph: (865) 971-1775 dmorehous@morehouslegal.com

Tyler D. Smith BPR #: 024718 Lewis, Thomason, King, Krieg & Waldrop, P.C. 620 Market Street, 5th Floor Knoxville, TN 37902-2237 Ph: (865) 546-4646 tsmith@lewisthomason.com

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

George Michael Davis BPR #: 034724 LaFevor & Slaughter 900 S. Gay Street, Suite 1704 Knoxville, TN 37902-1859 Ph: (865) 637-6258

DICTA is a monthly publication of the Knoxville Bar Association. DICTA is offered to all members of the Knoxville Bar Association as one of the many benefits of membership. This issue represents one of our “super circulation issues” and is sent not only to all members of the Knoxville Bar Association but to all lawyers licensed to practice law in Knox County and all of its contiguous counties, Blount, Loudon, Anderson, Union, and Sevier. DICTA is an important publication to the Knoxville Bar Association and it provides news regarding members and events of the Knoxville Bar Association as well as information on upcoming CLE seminars. It also provides news and notices from the Knoxville Bar Association president, the Barristers, and the Knoxville Bar Association's nineteen different committees and eleven different sections. If you are interested in becoming a member of the Knoxville Bar Association, please contact KBA Executive Director Marsha Watson at 505 Main Avenue, Suite 50, P.O. Box 2027, Knoxville, Tennessee 37901-2027, (865) 522-6522 or access our award-winning website at www.knoxbar.org. C

Tyler B. Combs BPR #: 035973 Law Office of Tyler B. Combs 717 N. Central Street Knoxville, TN 37917-7258 Ph: (865) 546-0011 tcombs@tbclegal.com

EDITORS’ NOTE:

David A. Chapman BPR #: 026238 Lewis, Thomason, King, Krieg & Waldrop, P.C. 620 Market Street, 5th Floor Knoxville, TN 37902-2237 Ph: (865) 546-4646 dchapman@lewisthomason.com

DICTA

October 2018

SCHOOLED IN ETHICS By: Judy M. Cornett UT College of Law

HOW ARE WE DOING?

ANNUAL REPORT OF THE BOARD OF PROFESSIONAL RESPONSIBILITY 2017-18 The Tennessee Board of Professional Responsibility recently released its annual report for the period July 1, 2017-June 30, 2018. The report provides a wealth of information about the demographics of the Tennessee bar, including statistics about disciplinary violations.

Some highlights:

•

Only 1/3 of Tennessee attorneys are women.

•

The race/ethnicity of Tennessee attorneys is unknown (or unreported).

•

The vast majority of complaints investigated by the Board resulted from neglect or failure to communicate.

•

The most common form of public discipline imposed by the Board was transfer to disability inactive status.

Tennessee boasts 22,793 attorneys, 60% of whom are male while 33% are female, with 7% not reporting gender. The race/ethnicity of bar members is not reported. Almost half these attorneys (48%) are age 30-49, and 43% are age 50-74. Only 4% are 75 years or older, with an identical percentage being age 21-29 years. Only 18% of Tennessee bar members reside out of state. Interestingly, between 1999 and 2009, the bar grew by 1500 members, to 19,622, but it grew twice as much, by more than 3100 members, between 2009 and 2018. Of the 22,783 bar members, approximately 20% (4908) are inactive. Disturbingly, almost 10% of attorneys (1972) are reported as suspended. During the year covered by the report, the Board’s Consumer Assistance Program opened 2460 cases. Of these cases, the CAP disposed of 45% with advice; mediated 36% of the cases; provided information in 7% of the cases; and referred 12% for formal investigation. The Board received 1542 complaints for investigation; along with the 579 complaints pending at the beginning of the year, the Board had 2121 investigative complaints before it last year. Of these 2121 complaints, 1413 were resolved without formal disciplinary proceedings. The vast majority, 1221, were resolved by administrative or investigative dismissals. Diversion, transfer to disability inactive status or retired status, or “other” dispositions (abated by death, complaint withdrawn, or duplicate file) accounted for 73 dispositions. Of the remainder, 58 resulted in private informal admonitions; 26 resulted in private reprimands; and 35 resulted in informal public censures. The majority of complaints investigated by the Board (52%) resulted from “neglect or failure to communicate.” The next largest number of complaints, only 9%, dealt with “relationship with client or court.” Tied with 8% of complaints each were “trust violations,” “improper communications,” and “misrepresentation or fraud.” The remaining causes of complaint were “fees” (6%), “conflict of interest” (4%), and “criminal convictions” and “personal behavior” (2% each). The most common formal discipline imposed was transfer to disability inactive status (31 cases); the second most common was suspension (28 cases), followed by an almost equal number of disbarments (23) and temporary suspensions (22). Reinstatements accounted for 14 cases; 9 cases resulted in “retired”; and public censures were issued in 4 cases.

It would be interesting to know what portion of the category “neglect or failure to communicate” resulted from neglect and which portion from failure to communicate. The two may often occur together, but they are not synonymous. It is possible to neglect a client’s case while still communicating with him or her. It is also possible to diligently represent a client while failing to communicate adequately. But perhaps it is fitting that the majority of discipline was “transfer to inactive status” since the majority of complaints were “neglect or failure to communicate.” Often, an attorney’s disability – whether physical, mental, or related to substance abuse – results in neglect of client matters. What can we learn from the Board’s annual report? First, seek help. Or, help someone find help. To the extent disciplinary violations result from lawyer disability, intervention may prevent those violations and the imposition of discipline. The Tennessee Lawyers Assistance Program (TLAP) is available to provide confidential assistance with mental health, substance abuse, and work-life balance issues such as stress and burnout. According to the TLAP website, http://www.tlap.org/: When you call TLAP, you can be sure that complete confidentiality will be maintained. The Tennessee Supreme Court has established TLAP as an approved impaired lawyers program pursuant to a Rule 33 of the Rules of The Supreme Court of Tennessee. By virtue of said rule, all communications with TLAP are confidential and members of TLAP are relieved of their duty to report ethical violations discovered as a result of their TLAP work. This means that any misconduct or ethical violation discovered or revealed to a member of TLAP will not be reported to any disciplinary board. Additionally, communications with TLAP are confidential and privileged by virtue of T.C.A. Sec. 23-4-101, et seq. You can contact TLAP by calling (615) 741-3238 or (877) 424-8527. Second – and this seems obvious – stay on top of your clients’ matters. Tennessee Rule of Professional Conduct 1.3 provides: “A lawyer shall act with reasonable diligence and promptness in representing a client.” Law practice can be overwhelming, and it’s easy to feel like you’re drowning in work – not to mention other obligations like office management. Get a good docketing system. Eschew procrastination. Learn how to deliver bad news. Ask for continuances when necessary. Don’t take on more clients than you can competently represent. Delegate to paraprofessionals or other staff when appropriate. Third, communicate with your clients. TRPC 1.4(a)(4) provides that “a lawyer shall . . . promptly comply with reasonable requests for information.” When the volume is reasonable, strive to return every phone call and respond to every email and text. Send copies of documents filed on behalf of your clients. Make it clear up front that there may be periods when you cannot communicate with the client as much as you’d like, but make those periods short. If necessary, delegate the communication duties, but remember that there is no substitute for a phone call from the lawyer.

Learn from the numbers and you won’t become a statistic.

If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. October 2018

DICTA

MANAGEMENT COUNSEL By: Julia Hale Lewis Thomason By: Cheryl Rice Egerton, McAfee, Armistead & Davis By: Beth Ford Community Defender

DIVERSITY & INCLUSION: IMPROVING CHANCES FOR SUCCESS Diversity: The Law Student’s Perspective Julia Hale, Lewis Thomason Diversity and Inclusion. Two distinct, yet related concepts. The former focuses on who has a “seat at the table” whereas the latter focuses on whether those who have a “seat at the table” are able to meaningfully participate in the conversation. Then, once the table is set and everyone takes their seat (those who have experienced it can surely attest to it), the conversation can be stimulating and have the potential to breed innovation and birth new ideas, or even, breathe life into old ones. Law school, and by extension the legal profession, has historically lacked diversity. Even with efforts to increase diversity, an argument can be made that there is, at times, a lack of inclusion. Law schools have plenty to worry about, but fostering an environment for students to have difficult conversations should be high on the priority list. Law school has the potential to be a perfect location to encourage these types of conversations. On the first day of orientation, professors emphasize that we are sitting in a room filled with future leaders of our community. It is only right that during law school, before we become leaders, we learn how to have the tough discussions associated with diversity. We must emphasize that these are issues we face as a community, not just issues we face if we are [insert diverse race, gender, sexual orientation, etc.] in this profession. Throughout law school, we read many different opinions revolving around relevant diversity-related topics. Whether it be Brown v. Board of Education II in Remedies, or an in-depth discussion in Professional Responsibility regarding whether or not undocumented immigrants should be able to practice law, law school has the potential to be fertile ground for a positive discussion had by students from a variety of backgrounds that would not otherwise occur. When exposed to these topics, I walked away from many of those discussions with a deeper understanding of the perspectives of my classmates, at least the ones who were willing to share. I can only imagine the breadth of the relevant stories and perspectives that went undiscussed. I’d only ask that my former professors, and their colleagues, continue to be vigilant and encourage these tough discussions rather than hurrying through cases that revolve around our nation’s checkered history. It is more than appropriate to spend a significant amount of class time discussing Brown v. Board of Education II or Scalia’s infamous comments regarding affirmative action. Facing these issues head on, rather than sweeping them under the rug as an “issue of our past, not of our present” is critical to ensuring that the legal profession continues to move toward a more diverse and inclusive profession.

Building Blocks Of Diversity In The Law Firm Environment Cheryl G. Rice For our profession to be truly diverse, we must not only hire diverse attorneys; we must also be able to retain them and help them advance to the highest levels of the profession. My firm, like many in this community, has been growing. We are striving to do so in a way that is

not only fruitful for our firm, but also allows our firm to reflect the makeup and values of our community. In recent years Egerton, McAfee has evolved significantly. While our firm’s long-term success in this regard is yet to be revealed, I offer my personal thoughts on hiring, retaining and promoting diverse attorneys in the law firm environment. First, management’s commitment to diversity is key. Moreover, management must secure a commitment to diversity from a significant nucleus of the firm’s existing attorneys. Our firm looks for certain credentials and qualities in a candidate regardless of the individual’s race, gender or other background. This assists us in seeing beyond the superficial presentation of a candidate and, as a result, we have hired females, non-Caucasians, non-traditional law students, lateral hires with experience in other jurisdictions, and folks hailing from differing geographic areas and personal backgrounds, among others. Each brings their own unique strengths to our team. As you would when hiring any attorney, consider key aspects of firm goals and culture and whether the candidate has similar values. Hire when it makes business sense to hire: Do you have more work than existing attorneys can handle? Does the prospective lawyer have a skill set (legal or otherwise) that enhances your team? Hire lawyers you believe have the potential to be good additions to your firm in the near term and for the long haul and be willing to invest in them for a bright future. Before hiring, ensure that experienced attorneys within the firm are committed to involving the new hire in client projects and helping that attorney develop his/her practice. Formal mentors are a must, but attorneys who are willing to provide informal mentoring and to sponsor an attorney for assignments, new roles, and leadership opportunities where appropriate are equally essential. Encourage the new hire to become integrated into the firm, the profession and the community in ways that complement his or her interests. Whether it be through firm projects or functions, bar service, pro bono efforts, community organizations or another way, an attorney’s connection to our community and their ability to find personal fulfillment here is vital to retention. Most importantly, recognize that this new colleague will bring their own perspective and experiences to the table which enrich your firm and can help you better serve your clients. The above is by no means a complete recipe for securing lasting diversity in your law firm. But for progress in this aspect of our profession to occur, perhaps these reflections are a place to start.

How Can I Improve The Diversity In My Office? Beth Ford One would think, mistakenly, that public defender offices are years ahead when discussing the issues of diversity and inclusion and implementing programs which lead to offices which reflect their communities and are diverse in terms of race and gender. Whereas, it is well established that practicing diversity and inclusion benefit any office, federal defender offices have not been particularly successful with achieving extraordinary diversity or inclusion. (Going All-In on Diversity and Inclusion by Kathleen Nalty.)

DICTA

October 2018

Locally, we have not done very well at all. Federal Defender Services of Eastern Tennessee employees 43 people in its 3 offices. More than 50% of the attorneys are women, but none of the attorneys are people of color. (In fact less than 10% of the entire defender staff is people of color.) It is distressing to me as the head of that office. I struggle, along with my colleagues across the country, with how to change the population of my office.

3. Tracking and data analysis: Conduct in-house analysis to identify the issues of implicit and explicit racial and ethnic bias that affect the staff. Collect salary data to determine whether there is actual or perceived inequity based on the distribution of salary among employees. Analyze the distribution of work assignments.

I am a part of a working group that hopes to improve the diversity pipeline to federal defender offices. We have begun by consulting with a handful of researchers, and we have moved to putting together a list of best practices to increase racial and ethnic diversity within federal defender programs. Because many of the practices could be used to support other diversity initiatives, they might be helpful for other employment settings. We have focused on hiring, retention and mentorship, tracking and data analysis, pipeline initiatives, and training. These suggestions borrow heavily from the work of the Defender Services’ Performance Measurement Working Group’s proposal. 1.

Hiring: Have a plan. Diversity is not going just to happen. Plan to increase the diversity of applicants, interviewees, hiring committees and decision makers. Have neutral and objective criteria for all positions. Engage in outreach with and submit job announcements to colleges and law schools with highly diverse student populations. Interviewers should be diverse. Use a uniform set of questions for interviews and for professional references. Redact writing samples to remove identifiers about the applicant.

Retention and mentorship: Implement a mentoring program for incoming employees. Have policies that support membership and participation in affinity groups and bar associations such as the KBA. Exchange ideas with others. Provide clear

information and objective criteria regarding evaluation, salary, and promotional processes.

Pipeline initiatives: Develop college, law school, and graduate school internships to attract diverse pools of student applicants. Encourage staff to serve as adjunct professors at the University of Tennessee, Lincoln Memorial University, and Pellissippi State to expose students to the work of your office. Develop formal relationships with local high school mock trial teams or programs such as Street Law at Austin East. Participate in Buddy Match.

5. Training: Conduct training for all of your staff on diversity and implicit and racial bias. Diversity in the workplace will not happen overnight. However, with a well thought out plan for hiring and retention, progress should be made.

RED MASS on October 7, at 11:00 am A special invitation is extended to those serving in the legal and law profession to join Bishop Richard Stika who will celebrate the Annual Diocesan Red Mass on Sunday, October 7 at 11:00 am in the new Cathedral of the Most Sacred Heart of Jesus at 711 S. Northshore Dr. in Knoxville. As a time honored tradition of the Catholic Church, the Red Mass is celebrated for judges, attorneys, law school professors, students, and government officials, invoking the guidance of the Holy Spirit for all who seek justice. Please direct questions to Paul Simoneau at psimoneau@ dioknox.org or 865-862-5753. The Red Mass represents a special time to reflect upon the God-given responsibility of all in the legal profession. The first recorded Red Mass was celebrated in the Cathedral of Paris in 1245. In certain localities of France, the Red Mass was celebrated in honor of Saint Ives, the Patron Saint of Lawyers. From there, it spread to most European countries. The tradition began in England in 1310 during the reign of Edward II. St. Thomas More, an English lawyer, statesman and councilor to Henry VIII, who was martyred in 1532, was declared by St. John Paul II to be the “Heavenly Patron of Statesmen and Politicians.” The first Red Mass in the United States was held in 1877 at Saints Peter and Paul Church in Detroit, Michigan and has been celebrated annually since 1912. In New York City, a Red Mass was first held in 1928 at the Church of St. Andrew, near the courthouses of Foley Square, celebrated by Cardinal Patrick Joseph Hayes, who strongly advocated and buttressed the legal community’s part in evangelization. October 2018

Knoxville Bar Association Annual Memorial Service Friday, November 16, 2018 3:00 p.m. Tennessee Supreme Court Courtroom 505 Main Street, 2nd Floor We gather, not for the purpose of grieving, but rather to celebrate the careers of, and to honor, applaud, and express our gratitude to, those members of the Knoxville Bar who passed away in the last year. In Memoriam: E. Riley Anderson Richard Ralph Baumgartner Janice Leyton Claytor David Dickason Creekmore Paul Edward Dunn Thomas Draper Kerr John D. Lockridge William Eugene McClamroch, III A.C. Myers Michael Anthony Nolan Philip James Pfeifer Spenser Flinn Powell Jonathan Rohr Hon. Richard R. Vance Edward Eugene Wilson

Joining KBA President Keith H. Burroughs in the reflection and celebration of the lives of these individuals will be Rev. Charles Fels and Hon. D. Michael Swiney, Presiding Judge, Tennessee Court of Appeals, Eastern District.

DICTA

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

TRAVEL TECH Our motto has always been “Have tech. Will travel.” If you have ever been behind us in the security line at the airport, you probably switched to another line. We tend to slow the TSA process down a bit with all of our tech gadgets. But we love our gadgets because (except for the TSA security screening) they make our travel so much easier. Here are just some of our favorite travel tech gadgets and apps. A pair of Bose QuietComfort 35 wireless headphones is an essential travel accessory for us, especially on particularly long trips. These bad boys are not cheap, but we think that Bose sets the standard for noise cancelling technology. It is so nice to slip these headphones on and simply shut off the noise in the plane, train, or automobile while streaming music or movie audio from our phone or tablet. The over-the-ear fit is very comfortable, and the battery life is well over 15 hours. These headphones now even have Amazon Alexa and Google Assistant voice control built in. While not all our travel is business-related, a good bit of it is and, consequently, we find ourselves participating in online meetings and conference calls sometimes in the back of an Uber car, in a hotel room, or in an airport lounge. We always pack an ultra-portable smart speaker that we can use to stream audio from our phone while on the go. Two of our favorites are the eMeet M1 Bluetooth speaker and the Bose Soundlink Micro Bluetooth speaker. The eMeet M1 is really good as a speakerphone on the road when you have multiple people on the call at your location. The Bose Soundlink Micro has that really rich Bose sound and also happens to be waterproof (although we generally don’t do conference calls from the pool, we guess we could). Half of the fun of travel is in planning the trip, right? Well, not exactly, but it doesn’t have to be as frustrating as it seems sometimes. There seems to be an endless parade of travel aggregator sites that all promise to find the best flight, hotel, and rental car deals. Among all of this clutter, the one app that we think is incredibly easy to use and very useful is Hipmunk. Hipmunk is especially informative in selecting flight reservations. We love the way Hipmunk displays the available flights based on a scale ranking the flights from least painful to most painful, taking into account the price, layover time, departure and arrival times. We started using Hipmunk several years ago just for airline reservations. As the app has evolved, however, you can now use it to book your entire trip, with just a click of a button. Hipmunk really has become a digital travel assistant.

came up with a wonderful invention, the Airhook. The Airhook is just a smartphone/tablet holder combined with a cup holder that attaches to the tray table in its upright position. Three problems solved at once. This is about the smartest tech we can think of that doesn’t require electricity. We all know that so-called “free WiFi” is a big security risk when travelling, so we always bring along our own personal WiFi device, or MiFi. Generally, when travelling domestically it is fine just using the MiFi device from our mobile phone carrier, for which we pay a monthly fee. Accessing secure mobile WiFi can be more tricky when travelling internationally, however. The Skyroam Solis 4G LTE global WiFi hotspot is a great travel accessory for the international traveller. This device works as a personal MiFi in over 130 countries. You can access fast internet speeds at the click of the button with no need for foreign SIM cards. You pay just for what you use, and there are no limits or contracts. Finally, the ultimate in travel tech can be seen in a new genre of luggage called “smart luggage.” We have tried many types of smart luggage at various points along the “smartness” continuum. But at the far end of this continuum are two budget busting smart suitcases that really take this tech to a new level. The Cowarobot is a $1,500 smart suitcase that is really a luggage robot. This self-moving suitcase will actually follow you as you wind your way through a busy airport. And, if that is not crazy enough for you, check out the Modobag, another $1,500 smart suitcase, that you can actually ride (that’s right, ride like a car) to your airline gate. When you see Bill riding his Modobag and Phil leading his Cowarobot like a pet dog, you will have witnessed the apex of travel tech smartness, or perhaps the ultimate in frivolous tech spending. You decide.

See you on the road.

Sometimes the best tech is really just low tech. If you are like us, you hate using the foldable tray tables on an airplane because we all know these trays are germ magnets and they also just cramp our style too much. But, alas, where do we set our iPad to watch a movie, and where do we put our coffee cup (or other beverage container)? We love that there are creative smart people who think like we do, because some of these people

DICTA

October 2018

DICTA

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

THE FIRST TO DIE Elbert Williams was thirty-one years old in June of 1940. He lived with his wife, Annie, in Haywood County, Tennessee, just northeast of Memphis. He worked at the Sunshine Laundry in Brownsville, where he arguably had the most important job: He kept the fire burning beneath the boiler that powered the entire enterprise. Elbert was African-American, as were approximately seventy percent of the residents of Haywood County. He served as a board member of the local chapter of the NAACP, which was trying to register black people to vote for the first time since Reconstruction. Other NAACP leaders were threatened, their homes were burned down, and they fled. Elbert, a big man and not easily intimidated, decided to remain in Haywood County. Late one night, two Brownsville police officers showed up at the Williams home. Elbert was just out of bed, barefoot, not dressed to go outside. The police took him anyway. Early the next morning, Annie went to the police station, where she tried to bring Elbert shoes and clothing. The officer on duty – one of the two who had abducted her husband only hours before – looked straight at her and said, “I don’t know who he is. Elbert Williams hasn’t been here tonight.” Annie went to the Brownsville postmaster, a powerful local official. Could he help her find her husband? She still had his clothes. The postmaster told her, “Maybe he doesn’t need any clothes.” Eventually, desperately, Annie went to the Hayward County Sheriff, who finally acknowledged what everyone knew. “Oh, Miz Williams, those boys are not going to hurt your husband. They just want to ask him a few questions. They’ll turn him loose. If he’s not home in day or two, let me know.” Elbert Williams never came home. On June 23, 1940, a Sunday morning, his battered, lifeless body was found in the nearby Hatchie River. The coroner called an immediate inquest, right there by the side of the water, that same morning. There was no autopsy, no medical examination of any kind, despite contemporaneous accounts that the body was bruised, battered, castrated, and perhaps chained to a heavy weight, and despite Annie’s insistence that there were two holes in Elbert’s chest. The inquest found that death had been caused by “foul means by parties unknown.” The coroner—the brother-in-law of one of the police officers who had kidnapped Elbert—ordered an immediate burial. That same afternoon, with no family present, Elbert’s body was buried in an unmarked grave. The death caused quite a stir, for a while, anyway, at least within the local black community. Elbert Williams was the first NAACP member to be murdered for advocating civil rights. The perpetrators wanted to send a message, and they succeeded.

With time, however, memories faded, or were suppressed, at

least in the local white community. People simply didn’t talk about it. Decades passed. Enter trial attorney Jim Emison, a white man. After graduating from Vanderbilt and the University of Tennessee’s College of Law in the 1960’s, Jim embarked upon a legal career in West Tennessee, a career marked by success, and accolades, and the respect of his peers. He served as President both of the Tennessee Bar Association and the Tennessee Trial Lawyers Association. Jim practiced law for years before he came across a reference to the case of Elbert Williams. Intrigued, he asked colleagues about it. Most of them had never heard of it. More time passed, and Jim was busy, he couldn’t stop thinking about the unsolved, largely forgotten murder that had happened so close to where he lived and worked. When he retired in 2011, Jim could have devoted his life to golf, or travel, or any of the other things that successful former attorneys do. He decided, instead, to bring his analytical and investigatory skills to bear on the Williams case. It was then more than seventy years since Elbert had died. Documentary evidence was scant. Witnesses, and perhaps, the perpetrators themselves, were dead. There was no body. Cases don’t get much colder than that. Nonetheless, over the next seven years, Jim made considerable progress. Others joined his cause. On May 15, 2018, Governor Haslam signed legislation sponsored by Rep. Johnnie Turner and Sen. Mark Norris creating the Tennessee Civil Rights Crimes Information, Reconciliation, and Research Center to serve as a clearinghouse for cold civil rights cases. On August 8, 2018, District Attorney Garry Brown re-opened the investigation into Elbert Williams’ murder. There is no statute of limitations for murder in Tennessee. Meanwhile, the search for Elbert Williams’ body has begun. Vicksburg geophysicist Ryan North has used ground-penetrating radar to locate nine unmarked graves in the local cemetery where family lore says that Elbert was buried. Careful excavation will soon begin, overseen by Dr. Amy Mundorff, a professor at the University of Tennessee’s Forensic Anthropology Center, home of the famous “body farm.” If a male body is found matching Elbert’s large stature, its mitochondrial DNA will be compared to mitochondrial DNA of one of Elbert’s great-great-nieces. Elbert’s body may still harbor forensic evidence, such as bullets. Jim Emison has tracked down the sidearm carried by one of the police officers involved in the kidnapping. Maybe, just maybe, a ballistics test will establish a match. Recently, Jim gave a presentation at Lincoln Memorial University’s law school. Like a spellbound jury, the audience hung on his every word. Clearly moved, several members of Knoxville’s African-American community murmured along as Jim spoke: “Tell it!” “Amen!” At times, there were tears, both from the audience and from Jim himself. A number of tissues were in evidence. That same day, I interviewed Jim for my radio show. If you’d like to listen to our discussion, please Google Your Weekly Constitutional and enter “First to Die” in the search bar. Justice for Elbert Williams has been delayed, but perhaps it won’t ultimately be denied.

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. 26

DICTA

October 2018

LONG WINDED By:

Jason H. Long London Amburn

A CURMUDGEON’S RANT I write this column in the hopes that at least Wayne Kramer will appreciate the sense of irony. A few years ago, he and I attended a conference together where the focus was upon the emerging technological trends in the practice of law. It was two days of meetings to discuss e-discovery, artificial intelligence, online dispute resolution and the other buzzwords dominating the practice. Over dinner, Wayne held forth on the importance of the traditional, bespoke practice of law and the fundamental need to develop a personal relationship between lawyer and client which seems to be getting lost in today’s technology race. While he was correct in his observations, I nonetheless needled him for being a curmudgeon. We have come full circle. I want to rant against Facebook . . . again. I know that there are a generation of millennials who would tell me that Facebook is already obsolete and I sound like an old man even mentioning it. Fair enough, but I’m willing to bet that the points addressed in this column would apply to most any social media platform du jour and the success of Facebook has made it the “face” of social media in general. I begin this rant with full disclosure. I have a Facebook account and often peruse others’ Facebook pages. I never post anything myself, so I guess you would call me a Facebook stalker. I acknowledge that Facebook has some value to society and allows for a level of interconnectedness that the world has never seen before. The quality of that interconnectedness is in question. All of that being said, for the longest time I never understood the near fanatical appeal of Facebook and always resented the fact that its founder, Mark Zuckerberg, could buy and sell me thousands of times over. Two quotes from literature helped me understand the full value of Facebook to its consumers. “The mass of men lead lives of quiet desperation.” Henry David Thoreau wrote that in Civil Disobedience and Other Essays. Years later, playwright Arthur Miller followed up on the theme in Death of a Salesman when he wrote, “attention must be paid” in reference to protagonist Willy Loman. As Miller and Thoreau demonstrated, very few people realize the level of fame and importance to which they believe they are entitled or desire. Facebook gives every man, woman, and child, with access to a computer and internet connection, the ability to broadcast their own sense of importance, with virtually no filter, to the entire world. “Hey everybody, check out this food I cooked . . . isn’t my cat cute? . . . see how big my children have gotten . . . here are my thoughts on a range of political and social issues I have done marginal research on . . . “ By adding a “like” button (now expanded to include a host of other emotions) we can track how important we are to the world. Facebook has given everyone the ability to create their own webpage and broadcast that information on a 24/7 basis. Now, in fairness, I don’t believe that ego drives all of us to post on Facebook. I do believe that the majority of people sharing information on Facebook legitimately want to simply stay connected to their friends and Facebook is a very convenient way to do that, but there is no denying that it feeds the ego as well. I have to admit that on those rare occasions where I do post information about myself (or more commonly when my wife posts something about me or the kids) I am intrigued to see how many people viewed it and their overall reactions. It feels good to be appreciated or even admired for accomplishments and milestones. October 2018

If that is all Facebook was, I probably would not have such a love/ hate relationship with it. People are entitled to tell the world whatever they want about themselves. Heck, Marsha keeps letting me write this column month after month, and I readily admit that I have written some pretty ridiculous things about myself. However, Facebook is, in my opinion, a little more dangerous than reading my column for a couple of reasons. First, I tend to be a self-deprecating kind of person, and I don’t think anyone has ever come away from this column feeling bad about themselves or their lives. It is unlikely anyone ever put down a copy of DICTA thinking “wow, Jason has really got his stuff together. What am I doing with my life?” Facebook tends to be the opposite. People post the most exciting, flattering details of their lives (for the most part) and there is a tendency to feel shamed if your life is not equaling or exceeding the most positive aspects of your friends’ lives. Second, unlike this column, Facebook is out to make a dollar (I guess you could say that this column is intended to be a benefit to those who join the KBA and therefore is a part of its overall marketing – however, if access to this column in any way drove your decision to join the KBA and pony up the annual dues, I would suggest that you have some very large personal issues you need to deal with). I think it is fine for Facebook to sell advertising like any other news or information source and, as consumers of the otherwise free service, we should be prepared for and accepting of that. What is dangerous is when Facebook allows others to mine data that we otherwise consider private (such as the personality quiz developed by Cambridge Analytica which sold the information collected to political organizations). Zuckerberg tells us that steps are being taken and have been taken to re-establish privacy protections on Facebook. Users have, thus far, been wary to accept this message. In July, amid a quarterly report showing slower user growth than expected, and still dealing with the fallout of the Cambridge Analytica scandal, Facebook experienced the largest single day drop in value of any company in the history of the stock market. Facebook lost $119 billion dollars in a single day and Mark Zuckerberg himself lost $15.9 billion. To put that in perspective, Zuckerberg personally lost an amount greater than forty countries’ gross domestic product, in a single day.

sers should learn from this that while Facebook can be a fun outlet to stay in touch with friends, there is always some danger to freely posting information about yourself. Facebook should learn from this that there is more value in protecting its users than in allowing its data to be mined. Users should learn from this that while Facebook can be a fun outlet to stay in touch with friends, there is always some danger to freely posting information about yourself. For me, I learned that maybe I am a curmudgeon after all. These damn kids with their loud music! Stay off my porch!

DICTA

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

SMOKIN’ GOOD BARBECUE I am married to a barbecue aficionado. On our first date, Hugh told me how he spent a great deal of his college years manning a barbecue team called “Huge Hogs BBQ of West Knox.” The team was named for him (he acquired the nickname “Huge” as a result of the “freshman 15+”), and he said that brisket was their specialty. On our third date, he took me to his favorite Nashville restaurant – the now defunct “Pig and Pie” on Charlotte Avenue. Many years later, we always seek out great barbecue restaurants when traveling. But, I have heard that some of the best barbecue in Knoxville is not found in a restaurant. Instead, some of the best local barbecue is prepared by our own KBA President Keith Burroughs. Intrigued, I had to ask Keith about how he acquired those skills. While cooking is now one of Keith’s hobbies, he says that was not always the case. “When I was a kid, the kitchen was my mother’s domain. She never encouraged any of us to trespass into her sacred area. Quite frankly, my mother was a fabulous cook, so there was never any real reason to try to learn while living at home,” said Keith. That changed, however, when he went to college. “Initially, I started with a gas grill in college. About 20 years ago, I was introduced to my first Weber kettle grill. I immediately fell in love with how predictably and consistently the Weber cooks and heats. Along with a Weber, I found that barbecue is best with a charcoal chimney, Kingsford regular charcoal, and an instant meat thermometer, all available at Lowe’s,” per Keith. In more recent years, he has discovered additional tools. “Later, I discovered Pampered Chef cookware, utensils, and all manners of neat cooking trinkets. One of my favorites is the Pampered Chef Salad Dressing Infuser, and, for the most part, we make all of our salad dressings from scratch at our house,” said Keith. He uses those salad dressings for family dinners. “For the last dozen years or more, I cook most of our Saturday night dinners. One of our favorites is grilled chicken breast Greek salad. I like to use the Gerber brand of chicken in the Food City case. It is Amish raised chicken with no hormones or steroids. Brine in a quart of water mixed with one-quarter cup of Kosher salt for at least 2 hours prior to cooking. Drain and rinse the chicken breast, place in a Pyrex dish and drizzle with light olive oil and sprinkle a light coat of dried oregano and basil. Grill over direct embers to 140-degree internal temperature. Remove and place in Pyrex dish and cover with foil to let rest at least 10 minutes prior to slicing. Slice in thin slices going across the chicken breast the most narrow way. Serve over a bed of mixed salad greens, sliced cucumber, red onion, boiled egg, chopped tomatoes, banana peppers, kalamata olives (pitted), rice noodles, feta cheese and drizzle with white balsamic vinaigrette. It is the perfect family meal,” Keith said.

preparation on the grill or smoker while my wife, Fran, prepares the sides and dessert. However, I also have several favorite recipes for indoor preparation, like my mother’s cucumber, onion, banana pepper and tomato salad (for which there is no recipe), fresh salsa, and my sister’s famous recipe for Thanksgiving dressing. I enjoy preparing baby back ribs and pork butts because these are two items that are easy to mess up, but with proper preparation, come out perfect every time. The trick for both is low and slow. You cannot get in a hurry with the preparation of either one. For a quick satisfying treat, the cedar plank citrus shrimp recipe is always a crowd pleaser. And learning to brine chicken makes it turn out juicy and tender every time,” shared Keith. It is no accident that his barbecued food is so good. “One of my best memories about cooking was the day my Series 1400 SmokinTex showed up as a gift from my wife as my combination Father’s Day, birthday and anniversary gift. This all stainless-steel electric thermostat controlled smoker is the bomb. Baby back ribs cooked for 3 ½ hours at 225 degrees guarantees the perfect rib every time, and it only requires 2 to 3 ounces of hickory chunks to smoke 6 whole slabs of ribs. I have cooked up to 65 pounds of Boston butts in one run, smoked scrod to make smoked fish dip, perfect beer can chicken, and smoked sausage. With the first run of ribs, my family was hooked. To own your own SmokinTex, just google SmokinTex 1400,” Keith relayed.

I wondered if this was Keith’s favorite meal to prepare. “While it is quick and easy, it is not my favorite. In the meat department, I especially like preparing dry rub baby back ribs, pork butts, cedar plank shrimp and salmon and brined chicken breast. I do most of the food

ooking is one of my hobbies. I am not a naturally creative person, but with food, I can take ordinary ingredients and turn them into something delicious. It is obvious that Keith loves cooking and is quite good at it. “Cooking is one of my hobbies. I am not a naturally creative person, but with food, I can take ordinary ingredients and turn them into something delicious. I am also a pleaser by personality type, and one of the easiest ways to satisfy others is with something yummy to eat. It gives me gratification when someone says ‘Wow, that is really good.’ I also find cooking relaxing. It is a good excuse to drink a cold beer while watching the grill, and it is something that not everyone can do well.”

DICTA

More recipes can be found in the online version of the October DICTA in the Publications Section at www.knoxbar.org October 2018

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. FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates. Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource. NOLAN FILES – CONTACT DAVID BURKHALTER Knoxville Attorney, Michael Nolan, passed away on July 20, 2018. Mike’s family has asked Knoxville Attorney, David Burkhalter, to contact attorneys and clients and notify them of Mike’s passing. If you have a pending case with Michael Nolan, please contact David Burkhalter at David@burkhalteraw.com. VOLS FOR VETERANS – GEN. CLIFTON CATES LEADERSHIP SCHOLARSHIP DINNER

General Clifton B. Cates, USMC. The dinner will be held at Cherokee Country Club. For more information and tickets, please visit our Facebook and Instagram page @volsforvets.

OFFICE SPACE AVAILABLE: •

Class A office space for rent in Bearden! The office is a total of 1342sq feet which includes six offices, two conference rooms, a kitchen, three storage areas, and a reception area. The space can be rented as a whole, or by the individual office. Utilities are included, however phone and internet would be the responsibility of the tenant. Contact Meghan Bodie at 865-539-3515 or meghankinglaw@gmail.com for more information.

•

Fully Furnished office space available at Bank of America Building; 2 window offices available; 3 interior offices available with cubicle space attached to each interior office; Accessibility to two large conference rooms, full kitchen, and patio area overlooking the TN river; Full lobby area with a receptionist to greet clients; Aggressively priced, 2 parking cards may be available. Call Lance Baker if interested. Office number is 865-200-4117 and cell phone is 865-310-0997.

•

Shared office space available for one to two attorneys in Farragut. Convenient location right off Kingston Pike. A small office space for support staff is available, as well as a shared file room, conference and reception areas. Contact Jerry Martin at 777-2700.

•

3,000-plus s.f. of office space near downtown. Easy access. Downtown views. Ample parking. Two suites of five offices, plus five separate offices. Spacious, attractive lobby. Common kitchen. Highly responsive, nonprofit, landlord on premises. Call 865-525-6806 for information. Contact Frank Graffeo at 525-6806.

•

Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 2,000 sq ft. Present floor plan accommodates four offices plus a conference room and a reception area. Would consider dividing space. One Level. Offices on either side occupied by long-term law firms. Two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.

PARALEGAL ASSOCIATION The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, October 11, at 12:00 p.m. at the Blount Mansion Visitors Center, Knoxville, Tennessee. Chris McCarty, Esq., with Lewis Thomason Law Firm, will be presenting Cybersecurity. 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. MCMURTRY LECTURE AT LMU DSOL SAVE THE DATE! On Friday, October 26, beginning at 9:30 a.m., the Abraham Lincoln Institute for the Study of Leadership and Public Policy will present its annual Gerald R. McMurtry Lecture at LMU’s law school in downtown Knoxville. This year, noted Lincoln scholar Brian Dirck of Anderson University will present The Frame and the Apple: Toward an Understanding of Lincoln’s Ethical relationship with the Law. According to Professor Dirck, “Lincoln’s legal practice, his quarter-century at the bar, was more than simply his bread-and-butter way of earning a living. It was itself an important component of his overall worldview.” Join us for a half-day celebration of Abraham’s ethics and legal practice. For more information, please email Hesper. Capps@lmunet.edu, or call her at 865.545.5345.

The 1st Annual Gen. Clifton Cates Leadership Scholarship Dinner on Thursday, October 11th will raise money for a student scholarship fund at The UT College of Law and will honor the memory of a true Tennessee Volunteer hero,

CORRECTION TO THE 2018 ATTORNEYS’ DIRECTORY

KNOX COUNTY JUVENILE COURT www.knoxcounty.org/juvenilecourt/

Carey E. Garrett Juvenile Court Building 3323 Division Street Knoxville, TN 37919 Ph: (865) 215-6400 FAX: (865) 215-6546 Hon. Timothy E. Irwin Admin. Asst.: Patrice S. Staley, Ph: (865) 215-6475 Magistrate Stacy Eckard Court Clerk Magistrate Michael W. Fortune Cathy Shanks Magistrate Robin Gunn Ph: (865) 215-6400 FAX: (865) 215-6546 Magistrate Irene Joseph Magistrate Dirk Weddington October 2018

DICTA

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

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

Want to Volunteer? Fill out our new Pro Bono Volunteer Survey: https://www.surveymonkey.com/r/DCTWYFSt

PRO BONO MONTH IS A TIME FOR VOLUNTEERING AND FOR CELEBRATING! It seems like Pro Bono Month 2017 just ended, but Pro Bono Month 2018 is upon us! Maybe it seems like it just ended because all of you are such great volunteers that you don’t wait for October to come out and support Legal Aid of East Tennessee and our clients! This year marks the 10th annual statewide Celebrate Pro Bono Month in Tennessee and we plan to do our part this year! This year’s Pro Bono Month activities in the Knoxville area kick off with a program on October 3rd and wrap up with two separate clinics on November 3rd! Any of you who know me know that I am passionate about coordinating Pro Bono civil legal services for members of our community and that I am passionate about assisting victims of domestic violence. So, for the next month, I will be working hard to make the most out of October and hope that many of you will join me! To volunteer for any of the events listed below, or for additional information, please contact me at kellis@laet.org or (865) 251-4951.

October 3 – 12:00 to 1:30 at the Smith Life Event Center on Tuckaleechee Pike in Maryville George Shields from LAET will be presenting a program to the Blount County Bar Association on drafting safeguards to prevent power of attorney abuse. Kathryn Ellis (that’s me) will discuss how attorneys who want to help low-income members of the community with drafting their power of attorney and other estate planning documents can do so through LAET’s Pro Bono Project. Even if you aren’t a member of the Blount County Bar Association, they would be happy to have you join us for the session. The program is $1.00 and you can get a sandwich, cookie, chips, and iced tea for an additional $6.00!

October 6 – 9:00 to 12:00 (Location TBD) We will be kicking off our Pro Bono Month clinics with our Knox County Super Saturday Bar. This is a large, open legal advice clinic that is open to anyone in our community. We will need as many attorneys as we can get to volunteer from 9:00 to 12:00 (you can come for all or part of it!) to answer questions about a wide range of legal issues including family law, debt and bankruptcy, wills and estates, powers of attorney, housing, drivers’ licenses, benefits, and anything else you can think of. If you speak Spanish, we could definitely use your help at this clinic!

October 10 – 12:00 to 2:00 at the Public Defender’s Community Law Office (1101 Liberty Street, Knoxville) Join us for our monthly Veterans Legal Advice Clinic. This clinic is open to all veterans, as well as family members, who have general civil legal questions, as well as issues related to their Veterans benefits. This clinic is co-sponsored by the KBA Barristers Access to Justice Committee.

October 13 – 9:00 to 12:00 at Blount County Library (508 N. Cusick St., Maryville)

October 19 – 6:00 to 9:00 at Ironwood Studios (119 Jennings Ave., Knoxville) After you have helped us out all month long at clinics, come help us celebrate another successful Pro Bono Month at this year’s Forging Justice Pro Bono Celebration! This year, we will be honoring Bill Coley & Ian Hennessey (Pro Bono Attorneys of the Year), Breeding, Henry & Baysan (Pro Bono Law Firm of the Year), Georgia Miller (Pro Bono Student of the Year), and the East Tennessee Children’s Hospital (Community Partner of the Year). And, we will be inducting Harry Ogden into the Donald F. Paine Memorial Pro Bono Hall of Fame. (On a side note for anyone on the fence about coming out to Celebration Pro Bono with us – this year’s Forging Justice Pro Bono Celebration happens to fall on my birthday, so you have two reasons to come celebrate with me!). Tickets and more details are available at www.laet.org.

October 24 – 12:00 to 2:00 at LAET’s office (607 W. Summit Hill Drive, Knoxville) We will be holding a Pro Se Divorce Clinic for clients who need assistance with the forms for an agreed divorce (no children). At this clinic, students from the University of Tennessee’s College of Law assist clients who have been prescreened and scheduled for the clinic with completing the AOC forms. We will need one or two family law attorneys to review the forms when they are completed and to make sure everything is done correctly. The clients leave the clinic with their forms in hand to go file!

November 3 – 9:30 to 12:30 at the Public Defender’s Community Law Office (1101 Liberty Street, Knoxville) Join us for our quarterly Debt Relief Clinic, which is a collaboration between LAET, the Bankruptcy Section of the KBA, and U.S. Bankruptcy Judge Suzanne Bauknight. At this clinic, clients who have been prescreened by LAET and who have already gathered a lot of their financial information have the opportunity to hear Judge Bauknight speak about the process of filing for bankruptcy, the differences between Chapter 7 and Chapter 13, and some of the reasons why filing for bankruptcy may not be the best option for everyone. After Judge Bauknight speaks, the clients then have the opportunity to meet individually with one of the bankruptcy attorneys volunteering their time at the clinic. The attorneys assess each client’s situation and determine whether or not filing for bankruptcy is their best option. All clients who attend the clinic receive useful advice about dealing with their debt issues.

November 3 – Our Faith & Justice Alliance Clinic format is hitting the road! Join us in Morristown at St. Patrick’s Catholic Church where Knoxville attorneys will be joined by Morristown-area attorneys for their first Faith & Justice Alliance Clinic!

Join is for the Blount County Super Saturday Bar – it’s just like the one in Knoxville on October 6, but it’s in Maryville! Last year, we had nearly eighty (80) clients meet with attorneys, so if you’re available we can use you!

I hope to see you all during the month of October!!!

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

DICTA

October 2018

Q: A:

THE LAST WORD By:

Jack H. (Nick) McCall

You have a unique niche representing tow truck companies. How did that come about and have you had any memorable cases?

MICHAEL MCGOVERN, THE MCGOVERN LAW FIRM

In the early 1970s my parents founded Cedar Bluff Towing in Knoxville. I drove a tow truck for the family business on nights, weekends and summer breaks in high school, and throughout college and law school at UT. Upon admission to the bar I had no intention (or desire) to represent towing companies, but I suppose it was inevitable. Local towing companies sought me out because of my practical knowledge of their businesses. Later, the national towing association retained me as its general counsel. I served in that capacity for twelve years and developed somewhat of a reputation throughout the nation in legal matters relating to towing. I have now been representing towing companies for over 30 years. I often refer to my towing legal work as my “other life” because most of the clients are out of state, far away from my general criminal and civil practice in Knoxville. On the civil side, the cases usually involve disputes over lucrative police towing contracts or challenges to government regulations, especially those relating to price controls and parking lot tow-aways. Criminal cases typically charge auto theft, assault, bribery or extortion. The first of my two trips to the Supreme Court must top the list of memorable cases. In 1994 I was contacted by Jack Gratzianna who owned a towing company in Northlake, a small city outside of Chicago, near O’Hare Airport. His company, O’Hare Truck Service, had participated on the city’s rotating tow call list for about 30 years. In 1993, the mayor of Northlake, who was seeking reelection, asked Gratzianna for a campaign contribution. Gratzianna refused and instead publicly supported the mayor’s opponent. Almost immediately, O’Hare Truck Service was removed from the city tow list. Gratzianna didn’t think that was right, and neither did I. I thought the rule of Elrod v. Burns, in which the Supreme Court held that government employees may not be discharged solely on the basis of their political affiliation, should apply equally to independent contractors. I filed an Elrod-type civil rights lawsuit in the federal court in Chicago alleging that O’Hare Truck’s First Amendment right to freedom of association had been infringed. I lost in the district court and appealed to the Seventh Circuit, where I presented a masterful oral argument (or so I thought) to a panel that included the renowned Justice Easterbrook. They dumped me out, refusing to extend the holding in Elrod to independent contractors. (47 F.3d 883). Deflated, I told Gratzianna that his only recourse was a petition for certiorari to the U.S. Supreme Court. But my client didn’t have the money and, quite frankly, I didn’t think I had the knowledge and experience for a First Amendment argument before the Supreme Court. About a month later, back to the routine of my local practice, I was driving to a general sessions court hearing in Dandridge when my cell phone rang. The caller identified himself as chief counsel of the ACLU

First Amendment office. He had been following my case, believed in my argument, and said that the ACLU would like to pursue a petition for cert. My client would have the full resources of the ACLU, at no charge, and I would stay on as co-counsel. For about nine months, I had the distinct pleasure of working with many brilliant First Amendment experts on the petition (which was granted), the briefing (the ACLU graciously asked for my input), mock arguments (I stayed out of the way), and the Court oral argument (where I sat second chair). Gratzianna and I were ultimately vindicated when the Supreme Court, in a rather landmark opinion written by Justice Kennedy, reversed the 7th Circuit in O’Hare Truck Service v. City of Northlake, 518 U.S. 712 (1996). Outside the Supreme Court, I’ve provided legal assistance to hundreds of towing clients from Key West to Portland, and from New York City to Honolulu. As you might expect, I am well-versed on pro hac vice rules and have enjoyed working with some very fine lawyers, many who remain good friends. I’ve served as counsel in civil or criminal trials in a number of other states, including California, North Carolina, Florida, Texas, Ohio, Missouri, and Connecticut. Because lawsuits versus government entities often involve federal constitutional issues, such as preemption and due process, I have become a member of the bar of five federal district courts, eight U.S circuit courts and the Supreme Court. I generally find the courts and local bar of foreign jurisdictions to be collegial and accommodating. Rarely have I felt the victim of “home cooking.” Representing the owners of towing companies can be both professionally and emotionally challenging, but also quite entertaining. As an example, in 2007 I defended a notorious Los Angeles tow operator charged with 72 counts of unlawful taking of a vehicle and attempted extortion. The charges all related to my client’s aggressive practices in removing unauthorized vehicles from parking lots. A posted “NO PARKING” lot next door to the landmark Pink’s Hot Dogs in Hollywood was one of his favorite targets. A take-out customer’s car could be gone in less time than it took to order an El Cucuy Dog. He was hardly deterred by physical confrontations or people jumping onto their cars hoisted on the hook. He was widely known and universally hated for his tactics, so it was a fairly high-profile case with lots of media coverage. The 15-day trial took place in the downtown LA courthouse, on West Temple Street. When I first walked into the dark wood-paneled courtroom I immediately recognized it as the scene of the 1995 nationally-televised murder trial of O.J. Simpson. We obtained acquittals on a majority of the counts, and suffered only misdemeanor convictions on the rest. My client received a sentence of probation and an implicit admonishment to “get out of town,” which he wisely did.

“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. October 2018 DICTA

Prsrt Std US POSTAGE

PAID

P.O. Box 2027 Knoxville, TN 37901

KNOXVILLE, TN PERMIT NO. 3 0 9

KBA Annual Supreme Court Dinner – September 5, 2018 More than 300 attorneys and their guests attended the Annual Supreme Court Dinner on Wednesday, September 5, 2018. During the dinner, Chief Justice Jeffrey Bivins talked about the court’s work in addressing community needs – including indigent representation reform, judicial response to the opioid epidemic and access to justice. The keynote speaker for the event was Ashby Pate, a former Associate Justice of the Supreme Court of Palau. Pate provided a riveting account of his work helping design Palau’s first-ever jury trial system and stressed the importance of human connection in the practice of law.