Schooled in Ethics: Judges with Friends: The ABA’s New Guide to Disclosure and Disqualification. . . Page 13 Legal Update: Speak Now or Forever Hold Your Peace: Proposed Changes to Discovery Rules. . . Page 15
A Monthly Publication of the Knoxville Bar Association | October 2019
Tennessee Joins the Ranks of Jurisdictions Adopting the Uniform Bar Exam
KBA Annual Supreme Court Dinner – September 4, 2019 More than 250 attorneys and their guests attended the Annual Supreme Court Dinner on Wednesday, September 4, 2019. During the dinner, Chief Justice Jeff Bivins shared a number of exciting new initiatives planned for the future and thanked the local bar for their strong representation in important leadership positions across the state. The keynote speaker for the event was renowned motivational speaker Vicki Clark who spoke about servant leadership.
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DICTA
October 2019
In This Issue
Officers of the Knoxville Bar Association
COVER STORY
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President Elect Hanson R. Tipton
Treasurer Cheryl G. Rice
Immediate 8 Past President Keith H. Burroughs
Secretary Jason H. Long
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KBA Board of Governors Hon. Suzanne H. Bauknight Jamie Ballinger-Holden Loretta G. Cravens Kathryn St. Clair Ellis Elizabeth B. Ford
Rachel P. Hurt Allison S. Jackson Stephen Ross Johnson Elizabeth K.B. Meadows Mary D. Miller
T. Mitchell Panter Robert E. Pryor Jr. Mikel Towe
The Knoxville Bar Association Staff
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
Leslie Rowland LRIS Assistant
Dicta
DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association. All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Watson (522-6522).
Dicta is the official publication of the Knoxville Bar Association
Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Sarah Booher Jennifer Dobbins Elizabeth B. Ford Joseph G. Jarret F. Regina Koho
Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Elizabeth Towe
Managing Editor Marsha Watson KBA Executive Director
DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. October 2019
DICTA
Practice Tips
Are Your Job Postings In Violation of the ADEA? Is Your Job Applicant “Overqualified” For The Job?
Judges with Friends: The ABA’s New Guide to Disclosure and Disqualification
Speak Now or Forever Hold Your Peace: Proposed Changes to Discovery Rules
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Management Counsel: Law Practice 101
Schooled in Ethics
Legal Update
WISDOM
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Urban Legends
Disaster at New Market: The Southern Railway Train Crash of 1904
Lost Conversations: Prevention in the Midst of a Crisis
Knoxville Bar Foundation - Recognizing Distinguished Attorneys And Awarding Grants For Our Community
Easy Fall Favorites (Not to Include Hungry Man TV Dinners)
Out of the Ashes
Spencer Deaton: Knoxville Loyalist, Civil War Soldier, and Condemned Spy
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Volume 47, Issue 10
Judicial News
New Developments in U.S. District Court Contempt: When “Civil” Doesn’t Mean Civil and “Criminal” Doesn’t Mean Criminal
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Tammy Sharpe CLE & Sections Coordinator
President’s Message
Even The Choir Needs To Practice
13
Marsha S. Watson Executive Director
Tennessee Joins the Ranks of Jurisdictions Adopting the Uniform Bar Exam
CRITICAL FOCUS
5 President Wynne du Mariau Caffey-Knight
October 2019
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A Community’s Response to the Opioid Crisis Around The Community
Barrister Bites Vite et crede
Of Local Lore and Lawyers
Bill & Phil Gadget of the Month
Bill and Phil’s Top Tech Tips for 2019
Well Read
Book Review: Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law by Preet Bharara
Breathlessly Seeking Brexit
Nothing Funny about Purple Cauliflower
Top Ten List
26 27 28
Your Monthly Constitutional Long Winded
Legally Weird
COMMON GROUND
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Section Notices/Event Calendar Barrister Bullets Bar Hopping Bench & Bar in the News Pro Bono Project Last Word
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SECTION NOTICES & EVENT CALENDAR
event calendar
Section Notices
There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 522-6522.
Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Section for the upcoming CLE programs “Are we there yet? The Evolution of the Mediation Process” on October 14 featuring Dana Holloway and “Tips from a Mediator: Do This, Not That” on November 11 featuring Daryl Fansler. If you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777). Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. Join the Bankruptcy Law Section for the CLE program “The Perils of Ignoring Student Loan Debt” on October 30 featuring Gwendy Kerney and Melissa Blalock. The next Pro Bono Debt Relief Clinic will be held on November 9 and volunteer registration is available at www.knoxbar.org. If you have a program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to get involved, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. Join the Criminal Law Section for the CLE program “Criminal Law Rowdy Roundup of 2019” on November 21 featuring Sarah Keith and Josh Hedrick. The section plans regular CLE throughout the year. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Hedrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. Join the Employment Law Section for the CLE program “Getting to Yes! How to Make Your Employment Mediation a Success” on October 15 featuring Chad Hatmaker. 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. Join the Environmental Law Section for the CLE program “Avoiding a Legal Disaster in the Wake of a Natural Disaster” on October 1 featuring Catherine Anglin. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) and Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. Join the Family Law section for the CLE program “TN Family Law Update” on December 3 featuring K.O. Herston. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. Join the Government & Public Lawyers section for the CLE program, “Scary Ethical Issues for Government Lawyers” on October 31 featuring Sandy Garret. 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 15. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2017 will automatically be opted-in to the section. Join the New Lawyers section for the upcoming CLE program, “Bootcamp for New Lawyers: Working with Partners and Practice Development Tips” on October 24 featuring Sean Martin. The program will be held from 4:00 – 5:00 p.m. at Schulz Brau Brewing Company. For information about the Section, please contact Section Chairs Erica Green (525-5134) or Jimmy Snodgrass (545-4228). Senior Section The KBA Senior Section will meet next on December 11 at Calhoun’s on the River. The program will feature Natalie Manaeva Rice, Institute for Nuclear Security, University of Tennessee. The luncheon will be held from 11:30 a.m. to 1:00 p.m. The price includes an entree, side item, salad and beverage. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307). Solo Practitioners & Small Firms Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. Join the Solo Practitioner & Small Firm Section for the CLE program “Legal Slide: An Attorney’s Guide to PowerPoint” on December 18 featuring Samantha Warchol. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963) or Patrick Slaughter (637-6258).
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Law Office Tech Committee Meeting Environmental Law Section CLE Professional Mixer Diversity CLE & Reception Professionalism Committee Veterans Legal Advice Clinic Barristers Meeting Judicial Committee ADR Section CLE Diversity in the Profession Committee Meeting Employment Law CLE Board of Governors Meeting Lunch & Learn Barristers Golf Tournament NLS Section ‘New Lawyer Bootcamp CLE” Member Appreciation & Welcome New Lawyers Event Craft Brews for Coats LRIS Committee Meeting Bankruptcy Section CLE Gov’t Section CLE
Judge’s Ain’t Behavin’ CLE Law Office Tech Committee Meeting Barristers Diversity Mixer ADR Section CLE Professionalism Committee Meeting Access to Justice Committee Meeting Veterans Legal Advice Clinic Barristers Meeting Lunch & Learn Judicial Committee Juvenile Court CLE CLE Committee Diversity in the Profession Committee Meeting Board of Governors Meeting Criminal Law Update CLE Memorial Service
Mark Your Calendar Member Appreciation & Welcome New Lawyers Event
October 24, 2019 October 2019
PRESIDENT’S MESSAGE By: Wynne Caffey-Knight Elmore, Stone & Caffey, PLLC
EVEN THE CHOIR NEEDS TO PRACTICE You do great works. You serve your clients. You serve your families. You serve your colleagues, neighbors, and so many people who do not have the privileges that accompany the practice of law. I am largely preaching to the choir by suggesting you enrich your professional and personal lives investing in service to others. Vickie Clarke reminded us last month at the annual Supreme Court Dinner that sometimes even the choir needs to practice. I will take it a step further. Not only do the choristers need to practice, sometimes they need to change the tune as well. Now this is preaching to the choir at its best (or worst), because I am not particularly fond of change and tend to push back against it. But for all my resistance, once on the other side, I usually appreciate that there was growth in the process, with the potential for even more. Sometimes the very assessing or coming to terms with a change is transformative. August brought a huge change to my family’s life and our household. Maegan and Richmond moved to Nashville on the same Sunday afternoon. Wayne and I waved as they followed one another down the long driveway, around the bend, to the end of the hill, across the creek and up through the lower field. We called goodbye until we could no longer hear their tires crunching on the gravel or catch the colorful flashes of their cars through the trees. “Call us when you get there!” I sang out - my parents’ voices echoing in my mind. I did not like this change one bit. Since then, we have had many happy phone calls about their new experiences - Maegan absorbing the high-energy of the international music industry, and Richmond adjusting to the Socratic method at Belmont. Whole new worlds are opening up to them through these changes. On our end, the house is much quieter. We go to sleep earlier because we aren’t listening for the late-night sounds of the dogs barking in greeting, the door creaking open or footsteps treading up the stairs. We sleep in peace because these changes have been good for them, and they are good for us. As the seasons transition into autumn, big changes have come for our profession as well and more are in the air. Amendments to the Rules of Civil and Criminal Procedure, Rules of Evidence and Rules of Juvenile Practice and Procedure associated with the Tennessee Supreme Court’s 2019 Rules Package take effect on October 1st. The Tennessee Supreme Court is now also considering a significant amendment to T. R. Civ. P. 26 regarding mandatory initial disclosures in most civil cases. The KBA Professionalism and Judicial Committees are digging deep to assist the Board of Governors in deciding whether to comment on this proposed change. But if this issue is important to you, I encourage you to accept the Court’s invitation to weigh in by sharing your own comments before the December 13 deadline. Rumblings continue across the state as trial courts consider the paradigm shift to electronic filing systems, which might or might not even be unified as between Circuit and Chancery Courts within the same judicial district. The KBA will continue to watch those efforts as it does public scrutiny of our profession. The public does not always understand the ins and outs of trials and appeals, and especially sometimes not the outcomes. Judges are constrained from commenting publicly on their rulings and court proceedings. Continuing civic education remains one of the best ways to maintain the independence and integrity of the judiciary. Accordingly, to enrich your KBA experience and promote the October 2019
unbiased rule of law, the Board of Governors has approved a Power Point Presentation titled Fair & Impartial Courts to assist members in speaking to civic and community organizations about our profession. Members can access this free program through the KBA website. Changes effecting significant impacts are not always as apparent as a change in the law or openly advocating for untainted justice. Every new client, every new colleague, and really every new encounter we experience is a change that presents an opportunity for growth. The KBA creates such opportunities. On October 2, the Interprofessional Relations Committee co-hosts a free Professional Mixer for members with the Tennessee Society of Certified Public Accounts to greet the University of Tennessee Lady Vols’ newest addition, Coach Kellie Harper. The next day, Janice Brown, founder of the Brown Law Group, will speak as the guest of the Diversity in the Profession Committee at our Minority Law Student Reception on October 3rd. All members are invited to hear her message on Diversity & Inclusion: Theory Meets Reality along with local judiciary and future lawyers from the University of Tennessee College of Law and the LMU School of Law. The Barristers’ Lawyers Link Up Charity Golf Tournament takes place on October 21st. Later in the week, the KBA and the Barristers are pulling out all the stops on October 24 with a free Member Appreciation & Welcome New Lawyers Celebration. Come enjoy the fellowship with members and their families as we welcome the newly-sworn-in attorneys. The Professionalism Committee invites you to enjoy a change of scenery during the Annual Hike on November 9th at Fort Dickerson. As always, Co-Chairs and Co-Hosts Chancellor John Weaver and Garry Ferraris welcome everyone on this family-friendly event with an easy-towalk trail, information about this historic fortress that lies just across the river from downtown, and the chance to informally break bread together in East Tennessee’s Fall beauty. We have seen a tremendous demographic change in our Bar since I began practicing law. Five generations of lawyers are now involved in the legal profession. The KBA embraces this depth. Attorneys licensed in any state, law professors and law students may join the KBA. Membership is free to law students and lawyers in their first year of practice. If you are not already a member, there is no time like the present. Joining the KBA is a change that will enrich your professional or student life. If you’re already a member, remember the choir needs practice, too. Please stay involved with your Bar association, try a new committee or section, and take advantage of its ample offerings. Among the best things about being a Tennessean, and especially a Tennessee lawyer, are the many ways we serve our fellows in the true volunteer spirit. I know you will continue to do great things in service to others. Now having preached about practicing and changing the tune, I depart slightly from the text to say that one thing will never change for me: Come what may, I am a Vol For Life!
DICTA
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URBAN LEGENDS By: Sarah M. Booher OEB Law, PLLC
DISASTER AT NEW MARKET: THE SOUTHERN RAILWAY TRAIN CRASH OF 1904 On the morning of Sunday, September 24, 1904, the Number 12 eastbound train, also known as the “Carolina Special,” departed from Chattanooga, Tennessee. It was expected to make a loop through Knoxville, on to Morristown, and finally to its ultimate destination in Salisbury, North Carolina. It carried nine cars: two mail cars, three wooden passenger coaches, and four steel Pullman cars. Most of the 210 passengers aboard were returning home from the Louisiana Purchase Exposition, the World’s Fair in St. Louis, Missouri. Westbound that same sunny morning was the local Number 15 train. It was coming from Bristol and due in Knoxville at 11:00 am. After the last stop it made in New Market, the Number 15’s three passenger cars were filled with more than 140 passengers of its own. Normal train procedure for the single-track line required #15 to stop on a side track at Hodges’ Switch (between New Market and Strawberry Plains) and allow the larger, long distance train to pass. But that day, the instructions changed. At approximately 9:35 am in Morristown, Conductor Caldwell of the #15 was told to pull into a siding at New Market, just a few hundred feet past the passenger stop. Never moving to temporarily stop at the siding, the train instead proceeded toward Knoxville. New Market depot employees looked on with horror as they saw #15 move past the siding. They hurriedly sent a telegraph to the Strawberry Plains depot to warn #12 of the error, but the telegraph arrived just as the train departed. No amount of arm-waving or rock throwing gained the attention of train passengers or operators. One last ditch effort telegraph was sent to Hodges’ Switch, the normal passing place, but no one was on duty and the message was not received. Just before 10:18 am, the Carolina Special began to gain speed as it climbed the terrain just east of Strawberry Plains. Number 15 was travelling downhill into a curve and gaining speed as it attempted to make up for lost time on the journey. It is said that engineers G.M. Parrott and William Kane saw one another and made attempts to slow before the collision, but it was too late. The trains struck at the Whitaker Farm near Lost Creek, colliding head-on at an estimated combined speed of 70-110 mph. The force of the collision was so powerful that it could be heard fifteen miles away from the site. It broke #15’s locomotive and coal tender loose from the rest of the train, sending it catapulting end over end before landing squarely atop the Carolina Special’s wooden passenger cars. It is believed no passengers aboard the #15 were killed. While no final number has ever been confirmed, it is estimated that approximately 50 passengers from the Carolina Special were killed instantly, as every coach was demolished, both train engineers died, and another 13-20 passengers succumbed to their injuries in the coming days. More than 125 passengers were injured. Relief efforts began immediately. Doctors S.R. Miller and S.M. Miller, both employees of the Southern Railway, organized a relief train with medical and surgical supplies to go to New Market. There, an operating room and treatment station were set up in a nearby farmhouse kitchen to triage patients before sending them back to Knoxville General Hospital for more comprehensive care. Travel was largely impossible in that area by any means other than the railway, and communication occurred primarily by telegraph. The first train carrying seventy wounded passengers arrived back in Knoxville at approximately 4:30 pm. By about 8:00 pm that day, fortythree of the deceased had been recovered and transported to the morgue in Jefferson City, but rescue and cleanup efforts continued deep into the night. Chickens that has escaped a train car were fried and eaten. Thieves worked
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alongside rescuers, clearing the site of valuables and luggage. The press was largely prohibited from visiting the site as rescue efforts continued, but three Knoxville Sentinel reporters and one photographer hopped a rescue train under cover after their efforts to lease an automobile proved fruitless. They were on site in less than 2 hours. According to then-managing editor Wiley Morgan, “so fearful of the power of pictorial publicity were officials of the Southern Railway that its legal department in Washington directed a local attorney to use every possible means of preventing the publication of these pictures.” The attorney offered to pay any price for the photos, but the newspaper refused, and published the first such illustrations of the paper’s kind in its Monday edition. Following the crash, the engine remains of the #15 were collected and sold for scrap. Number 12 was repaired and continued in Southern Railway operations until it was scrapped in Princeton, Indiana, in 1930. Dr. S.R. Miller, Knoxville General Hospital’s first surgeon, oversaw post-event critique with disaster response, the federal government, Southern Railway, and the hospital to guide disaster planning and improve future responses. Knoxville General Hospital, a premiere hospital for its time, was closed in 1956, and is now the site to Knox County Health Department facilities in North Knoxville. Today, very little of the crash site remains beyond a thick, black rectangular smudge along Lost Creek, the result of years of train debris compressed into the earth. The Whitaker Farm remains both in the family and an operational farm. Much of the events of the crash remain a mystery and one for the legends. To this day, it is unclear why the #15 didn’t stop at its intended siding, why the instruction changed, and why there wasn’t a person on duty at Hodges’ Switch. The exact death toll and identities of the deceased also largely remain unknown. What is known is that the New Market Crash of 1904 was Tennessee’s deadliest railroad accident and one of the nation’s deadliest crashes at that time. The crash and the subsequent media reports following worked in tandem with other mass train casualties of the decade to force the federal government and the then virtually powerless Interstate Commerce Commission to begin seriously investigating and reporting catastrophic railroad crashes and enforcing new railroad regulations to prevent future disasters. Sources Consulted: •
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Fred Brown, “Deadly New Market wreck still echoes through area,” Knoxville News Sentinel (online, January 29, 2012) http://archive.knoxnews. com/news/local/deadly-new-market-wreck-still-echoes-through-areaep-361229287-357239081.html/#. Wikipedia, The Free Encyclopedia, “New Market train wreck,” at https:// en.wikipedia.org/wiki/New_Market_train_wreck (last visited September 9, 2019). *Remember, fastidious attorneys, this is an article about urban/local legends. If you’re writing for fact, accuracy, and legal persuasion, ditchy the Wiki.* Jefferson County Schools, “History of the New Market Train Wreck,” https:// archive.fo/20120608060913/http://jc-schools.net/nms/TRAINHISTORY.htm (last visited September 9, 2019). George M. Testerman, M.D., Disaster Management at the 1904 New Market, Tennessee, Train Wreck: Role of a Surgeon, 102(6) South Med J. 645 (2009). GenDisasters, “Hodges, TN New Market Train Wreck, Sept 1904,” http://www. gendisasters.com/tennessee/555/hodges-tn-new-market-train-wreck-sept-1904 (last visited September 9, 2019). Knoxville General Hospital, “City-owned General Hospital Closed in 1956,” http://kgh.knoxcotn.org/city-owned-general-hospital-closed-in-1956/ (last visited September 9, 2019).
October 2019
A COMMUNITY’S RESPONSE TO THE OPIOID CRISIS By: Karen Pershing, MPH, CPS II Executive Director, Metro Drug Coalition
LOST CONVERSATIONS: PREVENTION IN THE MIDST OF A CRISIS As Knoxville and the East Tennessee Region continue to dig its way out of the latest substance misuse crisis, namely the opioid epidemic, the focus has been on cleaning up the carnage after two decades of massive overprescribing of narcotics, and prevention has been overshadowed by the expanded need for evidence-based addiction treatment services, expansion of recovery courts and the use of naloxone to rescue those who are experiencing an opioid/opiate overdose. While all of these strategies are greatly needed to help those already addicted, what can we do to keep others from developing a substance use disorder? Believe it or not, substance misuse is a highly preventable disease. Advances in psychosocial research and neurosciences have provided insight into substance misuse prevention at both the individual and community levels. There are identified risk and protective factors affecting the likelihood of misusing substances. The integration of prevention within healthy lifestyle policies and programs, including interventions at the school, family and community levels, is more likely to show success than a single approach.1 Individuals are part of families and families are our community. If we do not have families who are thriving, both mentally, physically and are economically stable, it creates instability for all of us. The overwhelming effects of substance misuse on individuals, families and societies demand effective prevention strategies. Prevention is understood as any activity designed to avoid substance misuse and reduce its health and social consequences.2 This broad term can include reducing supply of substances of abuse as well as actions aimed to reduce demand for mind-altering substances, including health promotion and disease prevention. The biggest return on investment is primarily prevention, which is keeping something from occurring altogether. The Metro Drug Coalition has found that new prevention strategies were required to prevent the misuse of prescribed opioids, while others were universal in being applicable to any substance of abuse. After all, addiction is not something new. It has always been with us, but with the more potent and powerful prescribed and illicit drug market, many more are dying as a result. This has finally gotten the attention of all of us, not just those working in the field. With any crisis, there comes great opportunity to shine a spotlight on creating meaningful changes in policies and practices.
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find the locations at: https://countitlockitdropit.org/. In August of 2013, Metro Drug Coalition formed a Prescription Drug Abuse Task Force bringing together leaders from Judicial, Medical, Treatment, State Representatives (led by Representative Bill Dunn), Tennessee Department of Health, Tennessee Bureau of Investigation, and the Medical Examiner’s Office to work collaboratively to both identify and implement strategies to reduce overdose deaths, reduce neonatal abstinence syndrome and reduce prescribing of controlled substances. This group has been successful in passing several key state laws including: an identification bill, pain management clinic licensure and regulations, buprenorphine guidelines, and naloxone availability. At the peak of the epidemic, Tennessee had 333 pain management clinics. There are now 130. By raising the standard of care in these clinics, those who are not committed to the multi-modal practice of chronic pain management have closed. This group has been asked to provide input on numerous other bills and is highly regarded by members of the General Assembly. A regional partnership helped launch and develop the Born Drug Free Tennessee Neonatal Abstinence Syndrome (NAS) awareness and educational initiative in February of 2015. This effort was launched through a grant by Appalachia High Intensity Drug Trafficking Area and is now supported by United Way of Greater Knoxville and the Knoxville Academy of Medicine Alliance. Metro Drug Coalition manages the initiative, which seeks to prevent NAS through multiple partnerships by preventing unplanned pregnancies to making sure women who do become pregnant seek both prenatal care and treatment for substance use disorders as early in the pregnancy as possible to improve birth outcomes. Knox County has seen a dramatic decrease in NAS in the last couple of years and the state began seeing a decline in 2018. While this is great news, prevention efforts need to be maintained.
ith any crisis, there comes great opportunity to shine a spotlight on creating meaningful changes in policies and practices.”
Medication collection events are one quick and easy way that everyone can get involved in primary prevention. By cleaning out your medicine cabinets and safely discarding medicines that are no longer needed, they are no longer sitting in a home where curious children and teens could accidentally or intentionally get a hold of them. While getting rid of unused or unwanted medication is great, making sure medicines are being stored safely and securely in the home is also critically important. Since 2008, Knox County has collected and disposed of over 30,000 pounds of medications and distributed hundreds of medication lock boxes. These events are held quarterly in our community and has been a collaborative effort among Knoxville Police Department, Knox County Solid Waste, UT and South College Schools of Pharmacies, and Metro Drug Coalition. There are now over 16 permanent medication disposal options in our county alone. You can October 2019
These are just a couple examples of specific strategies related to the opioid crisis that Metro Drug Coalition has undertaken, but there are many more, such as: community presentations, town hall meetings, education in the schools, medical provider education, media stories and interviews, providing information and education on Adverse Childhood Experiences, providing tips for parents on how to talk to their kids, working with faith-based organizations, providing parenting programs and working with local policy makers on alcohol sales regulations, tobacco retail education and connecting those who find themselves in a crisis situation to the needed community resources. Prevention is the responsibility of each and every one of us. We should all arm ourselves with information to protect ourselves, our families and our community and never allow ourselves to get to this point again. We can keep chasing the drug of the day or we can focus on building resiliency and reducing what puts us at risk for substance misuse of any kind. Prevention is POWER. 1
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Medina-Mora, Maria Elena, Prevention of substance abuse: a brief overview, World Psychiatry. 2005 Feb; 4(1): 25-30. Mutter, Mitchell, MD, Pain Management Clinic Map, Tennessee Department of Health, September 9, 2019.
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JUDICIAL NEWS By: James F. Parker Hodges, Doughty & Carson, PLLC
NEW DEVELOPMENTS IN U.S. DISTRICT COURT
the appointment of John L. Medearis as Clerk of Court for the United States District Court and the hiring of LeAnna Wilson as Chief Deputy Clerk. John Medearis replaced U.S. Magistrate Judge Debra C. Poplin as Clerk of Court, having previously served as Chief Deputy Clerk. LeAnna Wilson previously served as career law clerk to Judge Greer. Both have been a part of the district court family for a number of years.
The past year and a half has seen quite a few developments at the United States District Court for the Eastern District of Tennessee. Below are a few highlights: •
Chief U.S. District Judge Pamela L. Reeves assumed the position of Chief Judge for the United States District Court on April 2, 2019, succeeding U.S. District Judge Thomas A. Varlan in that role. The position of Chief Judge is an administrative role held by one (1) United States District Judge for up to a seven (7) year term and passes to the senior-most judge under the age of sixty-five (65) at the time that the term of their predecessor ends. Judge Varlan’s term as Chief Judge began in 2012, and prior to that the position was held by Senior U.S. District Judge Curtis L. Collier. Consistent with a long line of firsts throughout her career, Chief Judge Reeves is both the first female United States District Judge and first female Chief Judge of our district.
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U.S. District Judge Clifton L. Corker was confirmed to that position by the United States Senate on July 18, 2019, having first been nominated by President Donald J. Trump the preceding year. Judge Corker spent the four years prior to his confirmation as the United States Magistrate Judge based out of the James H. Quillen United States Courthouse in Greeneville, Tennessee. Judge Corker, who is a graduate of James Madison University and William and Mary Law School, assumes the seat left vacant by Senior U.S. District Judge J. Ronnie Greer. Judge Greer was nominated to the bench by President George W. Bush, and served as the United States District Judge presiding in Greeneville for fifteen (15) years.
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U.S. Magistrate Judge Cynthia Richardson Wyrick was administered the oath of office by Chief Judge Reeves on September 30, 2019, after being appointed to that position by the U.S. District Judges. Judge Wyrick assumes the magistrate judge role in Greeneville that was held by Judge Corker. Prior to her appointment, she was a partner at Ogle, Wyrick & Associates and served a one-year term as president of the Tennessee Bar Association. Magistrate judges serve eight year terms and are subject to reappointment.
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Judge Varlan recently represented the Eastern District of Tennessee on the opposite side of the globe at an anti-corruption & financial investigations conference sponsored by the United States Department of Justice in the Democratic Republic of Timor Leste (also known as East Timor). Timor Leste is a small nation located in the Martine Region of Southeast Asia between Indonesia and Australia. The conference took place in May of 2019, and was held for the purpose of helping to train members of the Timorese judiciary and law enforcement. David Lewen, an Assistant U.S. Attorney from the Eastern District of Tennessee, is currently on leave serving a year as Resident Legal Advisor for the U.S. Embassy in Timor Leste. In response to our district’s participation in the conference, a group of Timorese judges and prosecutors returned the favor by visiting the Howard H. Baker, Jr. United States Courthouse and other federal and state entities in August of 2019.
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Although both took place in 2018, two other relatively-recent personnel changes at the Eastern District of Tennessee include
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Chief Judge Reeves administers the oath of office to the newly-confirmed Judge Corker as he stands alongside wife, Alice, and youngest son, Leland.
Varlan (second from right in first row) pictured with Timorese judicial and law enforcement officials at the Anti-Corruption & Financial Investigations Conference in Dili, Timor-Leste. Also pictured are Assistant U.S. Attorney and Resident Legal Advisor David Lewen (to the right of Judge Varlan in first row) and United States Ambassador to Timor-Leste, Kathleen M. Fitzpatrick (center of front row in red jacket).
Chief Judge Reeves and Judge Varlan pictured with Timorese judges and prosecutors during their visit to the Howard H. Baker, Jr. United States Courthouse in August of 2019.
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October 2019
PRACTICE TIPS By: Lyndsey L. Lee Hodges, Doughty & Carson, PLLC
CONTEMPT: WHEN “CIVIL” DOESN’T MEAN CIVIL AND “CRIMINAL” DOESN’T MEAN CRIMINAL Section 29-9-102(3) of the Tennessee Code Annotated authorizes a court to find a person who willfully obeys its order to be in contempt of court. For family law practitioners, contempt petitions are commonplace. Despite this, “the subject continues to stymy the bench and bar both in its definition and in its application.”1
Is it civil or criminal contempt?
Perhaps most confusing to parties and practitioners is the difference between criminal contempt pursuant to Tenn. Code Ann. § 29-9-103 and civil contempt pursuant to Tenn. Code Ann. § 29-9-104. A common misconception is that civil contempt is punishable only by a civil remedy, such as a civil sanction or fine, while criminal contempt is punishable by imprisonment. However, it is not the type of punishment that distinguishes between criminal and civil contempt. In fact, a party found to have committed either civil or criminal contempt may be fined, imprisoned, or both.2 Instead, it is the accused individual’s present ability to comply with the court order that determines whether a civil or criminal contempt petition is appropriate.3 Civil contempt is meant to enforce the private rights of a party and compel compliance with a court order. Conversely, criminal contempt is intended to uphold the court’s authority and punish past noncompliance. In other words, if the individual has the ability to come into compliance with an order (colloquially known as “purging” their contempt) – by paying their child support, finally turning over those discovery documents, or some other means – that is a basis for civil contempt. On the other hand, if the misconduct is complete – the parenting time has been denied or the dance recital schedule was not communicated – that is a basis for criminal contempt. Aside from the question of whether the contempt can be “purged,” there are other important distinctions between civil and criminal contempt.
Can the other party recover attorney’s fees?
Of most importance to many litigants, attorney’s fees may be awarded in some civil contempt actions – such as child support enforcement matters pursuant to Tenn. Code Ann. § 36-5-103(c) – but may never be awarded in criminal contempt actions.4 Accordingly, a party bringing a civil contempt petition to compel the other party to pay their child support may be awarded their attorney’s fees. However, a party bringing a criminal contempt petition to punish the other party for a past failure to pay their child support may not recover their attorney’s fees.5
Civil contempt actions require the moving party to prove the contempt only by a preponderance of the evidence, while criminal contempt actions require a showing beyond a reasonable doubt.7 Does someone accused of criminal contempt have the same rights as a criminal defendant? Finally, those accused of criminal contempt are afforded rights above and beyond those accused of civil contempt. In addition to the benefit of a heightened burden of proof, one accused of criminal contempt cannot be compelled to testify against himself and is entitled to appointed counsel in the event he cannot afford private counsel.8 However, unlike a criminal defendant, a party accused of criminal contempt is not entitled to a jury trial unless the contempt may be punished by confinement of more than six months.9 Furthermore, criminal contempt actions do not require an indictment or prosecution by the State. Additionally, a party found to be in criminal contempt has not been “convicted” of a criminal offense for the purpose of the Post-Conviction Procedure Act, and therefore is not entitled to postconviction relief.
Be careful what you ask for.
There are certain instances where the misconduct is done, the bell has been rung, and a civil contempt action is not appropriate. However, as Watts v. Watts10 illustrates, there are times when misconduct can be addressed by either a civil contempt petition or a criminal contempt petition. In those instances, do your client (and yourself ) a favor, file that civil contempt petition instead. Baker v. State, 417 S.W.3d 428, 434 (Tenn. 2013). Id. at 435. 3 Id. 4 Watts v. Watts, 519 S.W.3d 572 (Tenn. Ct. App. 2016). 5 Id. 6 Baker, 417 S.W.3d at 436 (quoting State ex rel. Anderson v. Daugherty, 191 S.W. 974, 974 (Tenn. 1917)). 7 Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 356 (Tenn. 2008) (citing Doe v. Bd. of Prof’l Responsibility, 104 S.W.3d 465, 474 (Tenn. 2003)); Baker, 417 S.W.3d at 436. 8 Baker, 417 S.W.3d at 436. 9 Id. at 437. 10 519 S.W.3d 572 (Tenn. Ct. App. 2016). 1 2
Can subsequent compliance with the order end the imprisonment? Because civil contempt actions are intended to compel compliance with court orders, when an individual is imprisoned for civil contempt he “carries the keys to his prison in his own pocket” and may secure his release by simply complying with the court order.6 Alternatively, because criminal contempt is punishment for past misconduct, imprisonment due to criminal contempt is unconditional and cannot be shortened by subsequent compliance with the court order.
What is the burden of proof?
October 2019
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October 2019
MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Sarah R. Johnson Holifield Janich Rachal Ferrera, PLLC
ARE YOUR JOB POSTINGS IN VIOLATION OF THE ADEA? IS YOUR JOB APPLICANT “OVERQUALIFIED” FOR THE JOB? Quite frequently employers will post job openings describing not just a minimum experience level but also a maximum one. Does this create employer liability for age discrimination under the Age Discrimination in Employment Act (“ADEA”)? In Kleber v. CareFusion Corp., 888 F.3d 868 (7th Cir. 2018) the Seventh Circuit allowed job applicants to claim a violation of the ADEA based solely upon the discriminatory impact of an employer’s action (known as “disparate impact”). The Seventh Circuit’s panel decision in 2018 resulted in finding a job posting seeking an applicant with no more than seven years of relevant experience a violation of the ADEA insofar as older applicants are more likely to have experience that far exceeds the stated requirement of a job posting, thus making them in the eyes of a prospective employer to be “overqualified.” In a subsequent rehearing of this case before the entire court in January 2019, the Seventh Circuit reversed the Court’s initial panel decision and ruled that the ADEA does not extend “disparate impact” protections to “outside” job applicants, that is, those who are not already employed by the job posting employer. In other words, employees of a job posting employer who apply internally for a new position can sue for “disparate impact” treatment under the ADEA, but applicants who are not yet employed by the company cannot. The Seventh Circuit’s ruling narrows application of the “disparate impact” basis for a claim of age discrimination, stating that “statutory interpretation requires reading a text as a whole.” Kleber v. CareFusion Corp., No. 17-1206, 2019 WL 290241, at *2 (7th Cir. Jan. 23, 2019). When the two statutory provisions under the ADEA are read together and compared to each other, namely, one covering “disparate treatment” which addresses “intentional discrimination,” and the other “disparate impact” which is meant to address neutral employer practices that have the effect of harming older workers more than younger ones, resulting in “unintentional” discrimination, it was clear to the Court that individuals who were not already employees, though covered by the “disparate treatment” provision, were not covered by the “disparate impact” provision of the statute. Therefore, an outside job applicant can bring an individual claim for discrimination based on “disparate treatment” but not one based on “disparate impact.”
consider members of their existing workforce to fill new job postings may still be sued under a “disparate impact” theory of age discrimination (as well as under a “disparate treatment” theory), the Court’s decision will have the effect of significantly reducing employer liability for individual claims brought by outside job applicants alleging age discrimination under the ADEA. Although the Seventh Circuit’s recent en banc decision has determined that the ADEA protections for outside job applicants do not include “disparate impact” claims and this court ruling only affects the law governing employers located in Illinois, Indiana or Wisconsin, employers must also be mindful that the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the nation’s antidiscrimination laws, including the ADEA, maintains its legal position that older outside job applicants have the right to challenge employer policies and practices that disproportionately impact them. Consequently, an employer may still be faced with a potential lawsuit from the EEOC for an ADEA violation that is based upon a “disparate impact” form of age discrimination against outside job applicants.1 The key takeaway here for employers is that they should carefully review their hiring and recruiting practices to determine whether theirs pose an unreasonable risk of inviting a potential age discrimination claim. 1 As recently reported in the Chicago Tribune, the EEOC, which receives about 20,000 age discrimination charges every year, issued a report in June 2018 citing surveys that found 3 in 4 older workers believe their age is an obstacle in getting a job. Yet hiring discrimination is difficult to prove and often goes unreported. https://www.chicagotribune.com/business/ct-biz-agediscrimination-ruling-kleber- carefusion-20190124-story.html
Practically speaking, what does this really mean for employers? It would be highly unusual for employers today to reject a job applicant for the stated reason that he or she was “too old” for the posted job. Such evidence of direct discrimination is rare these days. However, what is not uncommon is the practice of employers to state job requirements that have the effect of discouraging, and thus disqualifying, older workers from applying for the posted job due to stated requirements that include not just minimum job skills but also “maximum level of experience” for consideration of the applicant. Although employers who are willing to
About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Cathy Shuck at 541-8835. October 2019
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AROUND THE COMMUNITY By: Reggie E. Keaton Frantz, McConnell & Seymour, LLP
RECOGNIZING DISTINGUISHED ATTORNEYS AND AWARDING GRANTS FOR OUR COMMUNITY Established in the early 90’s, the Knoxville Bar Foundation provides a means for grants to be made to support important programs and projects of our community. The funding for the grants comes primarily from the Fellows of the Foundation. The Fellows program 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 2019 Fellows was introduced and welcomed into the Foundation at its annual dinner held on May 21. The Foundation was proud to honor and recognize the following as the members of the 2019 Class of Fellows: Keith H. Burroughs Amelia G. Crotwell Thomas H. Dickenson Daniel M. Gass Jackson G. Kramer J. Douglas Overbey
Hon. Debra C. Poplin Ann C. Short Daniel T. Swanson Hon. Steven Sword Debra A. Thompson Broderick L. Young
Back Row: Hom. Steven Sword, Daniel T. Swanson, Broderick L. Young, Keith H. Burroughs, Jackson G. Kramer, Daniel M. Gass, J. Douglas Overbey Front Row: Amelia G. Crotwell, Ann C. Short, Hon. Debra C. Poplin, Debra A. Thompson
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, and 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 2019 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 in support of its Office of Immigrant Services Community Economic Development Network of East Tennessee in support of its Internet Safety Presentation Federal Bar Association, Knoxville Chapter in conjunction with the United States District Court for the Eastern District in support of the Justice for All Program for underserved high schools in Knox County Florence Critten Agency in support of its case management of adolescents in state custody Knox County Juvenile Court in support of the ASIST program for status offenders Knox County Public Defenders Community Law Office in support of its social work students Knoxville Bar Association Archives Committee for video interviews of pioneers and leaders of the Knoxville Bar Knoxville - 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 Lincoln Memorial University Duncan School of Law, Career Services Department in support of its Career Closet SEEED, Inc. in support of its Career Readiness Program and Green Community Awareness Program TEAM Reentry, in support of the program of the United States Probation Office and the Federal Defender Services of Eastern Tennessee for people who have recently been released from federal custody Tennessee Immigrant and Refugee Rights Coalition in support of its Legal Services Clinic YWCA of Knoxville in support of its Victim Advocacy Program The total sum of all grants awarded this year is $35,000.00. 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 $455,000.00. Each year the Foundation solicits and receives multiple applications for grants. This year the grant requests totaled $66,855.00. 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 completed his tenure on the Board and was recognized at the annual dinner for his outstanding service and dedication for the years that he served as treasurer of the Foundation. It was also announced at the dinner that Charles Swanson has been selected to serve as the next chair of the Board of Directors. • • • • • • • • • • • • • • •
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 or any other member of the Board of Directors.
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October 2019
SCHOOLED IN ETHICS By: Paula Schaefer Associate Dean for Academic Affairs & Professor of Law University of Tennessee College of law
JUDGES WITH FRIENDS: THE ABA’S NEW GUIDE TO DISCLOSURE AND DISQUALIFICATION [My attorney] told me that the judge hates you and the judge will gladly throw the book at you. Try anything, and together, we’ll haul you back to court and have that judge throw you in jail. Remember, my dad is friends with every judge in Chattanooga and you’ll be toast. Now there, you’ve been warned. - Email from Former Wife to Former Husband during court proceedings.1 If your client received the foregoing email from a party in the case – suggesting that the assigned judge hates your client and is friends with the opposing party’s father – would you investigate further? If you uncovered additional facts consistent with the email, would you consider filing a motion requesting the judge to disqualify2 himself or herself? Would you be the surprised that the judge did not proactively disclose the facts without awaiting your motion? Tennessee Code of Judicial Conduct (TCJC) Rule 2.11(a) – just like the same provision of the ABA’s Model Code of Judicial Conduct3 – provides that a judge “shall” disqualify if his or her “impartiality might reasonably be questioned.” The rule then contains a non-exclusive list of grounds for such recusal. The first such ground is that the judge “has a personal bias or prejudice concerning a party or a party’s lawyer or has personal knowledge of the facts in dispute.”4 A judge cannot ask the parties to waive this ground for disqualification.5 If the judge has a personal bias or prejudice, whether for or against one of the parties or one of the lawyers, the result is mandatory recusal. Accordingly, if the judge in the introductory scenario actually has a bias against one of the parties (“the judge hates you”) or has a bias in favor of the opposing party because of a friendship or a close personal relationship (“my dad is friends with every judge in Chattanooga and [implied: because of those friendships] you’ll be toast”), then the judge should recuse. The remaining listed grounds contemplate specific relationships that may not rise to the level of bias or prejudice but are nonetheless reasons a judge shall disqualify because his or her impartiality might reasonably be questioned.6 They include issues such as the: judge or the judge’s family member is a party, lawyer, or has a financial interest in the proceeding; a party or counsel made a significant contribution to the judge’s campaign; or that the judge previously participated in the case in some capacity.7 One category of relationships that might cause a judge’s impartiality to reasonably be questioned – thus, mandating disqualification—is not delineated in the text of the rule: friendships between judge and party or between judge and counsel. So, while these relationships could be grounds for disqualification if the judge’s impartiality might reasonably be questioned, the rule itself does not provide guidance about when a friendship rises to this level. On September 5, 2019, the ABA’s Standing Committee on Ethics and Professional Responsibility set out to address that shortcoming in ABA Model CJC Rule 2.11. In its Formal Opinion 488, the Standing Committee provides guidance to judges about when they should disqualify because of (or at least disclose) their friendships and other close personal relationships with counsel or a party. The discussion focuses on whether a given relationship would cause the judge’s impartiality reasonably to be questioned, even when the judge has no bias or prejudice as a result of the relationship. The following sections discuss the highlights of the Formal Opinion. Judges Are in the Best Position to Assess Whether Their Impartiality Might Reasonably Be Questioned The ABA Standing Committee’s opinion opens by asserting that ordinarily judges are in the best position to assess the situation and determine
the appropriateness of disqualification. Here, Formal Opinion 488 makes three primary points. First, in small communities, social and personal relationships with parties and lawyers may be unavoidable and strict disqualification impractical. Second, a judge should be allowed to make a determination about the closeness of the current relationship based on all the facts. Finally, a judge should avoid erring on the side of disqualification because that might encourage judge-shopping.8 A Judge’s Relationship with an “Acquaintance” Need Not be Disclosed and Should Not Result in Disqualification Formal Opinion 488 provides a useful definition of an acquaintance: “a person with whom the judge’s interactions are coincidental or relatively superficial.” In sum, “neither the judge nor the lawyer [or party] seeks contact with the other, but they greet each other amicably and are cordial when their lives intersect.” Examples include people who attend the same place of worship, gym, events involving children or spouses, or see one another when socializing with mutual friends.9 The opinion concludes that a reasonable person with knowledge of the “acquaintance” facts would not have a reasonable basis for questioning the judge’s impartiality. Accordingly, judges need not disclose the facts or disqualify based on these acquaintanceships.10 Whether a Judge’s Friendship Requires Disqualification (or At Least Disclosure) is a “Essentially a Question of Degree” Next, Formal Opinion 488 describes “friendship” as a relationship of mutual affection, but notes that not all friendships are equal. The ABA Standing Committee describes the spectrum of friendships as ranging from former law school classmates occasionally meeting for a meal to individuals who share confidences and intimate details of their lives.11 Not all friendships should result in disqualification, and whether they should “is essentially a question of degree” that depends on the facts of the case. The opinion encourages judges to disclose the facts of the relationship if the judge believes a party might reasonably consider those facts relevant to a possible disqualification motion. After such a disclosure, a judge who receives a motion for disqualification must decide how to proceed and should put the judge’s reasoning in writing.12 A Judge with a Close Personal Romantic Relationship with a Party or Lawyer Should Disqualify; Other Close Personal Relationships with a Party or Lawyer Should (at Least) be Disclosed Finally, the opinion explores close personal relationships that are different from friendships. Examples include: romantic relationships, romantic relationships the judge hopes to pursue or is pursuing, divorced judge and lawyer or party, or a godparent relationship between the judge and the lawyer or party’s child.13 The ABA Standing Committee draws a simple line between romantic relationships and other close personal relationships. In the case of the former – whether a current romantic relationship or one the judge is pursuing or hopes to pursue – disqualification is required. In the case of other close personal relationships, the opinion encourages disclosure even if the judge believes he or she can be impartial.14 Final Thoughts: The Significance of ABA Formal Opinion 488 for Tennessee Lawyers and Judges Tennessee case law concerning disqualification based on judge-lawyer or judge-party friendships is largely consistent with the guidance provided by the ABA Standing Committee’s Formal Opinion. In most cases, the judge’s determination that the closeness of the friendship is not grounds for disqualification (because it does not create reasonable grounds for his or her impartiality to be questioned) is respected by the appellate court.15
(Continued on page 14)
If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. October 2019
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Photo Ops Pro Bono Debt Relief Celebration - September 10
Barristers Social - August 29 at Hi-Wire Brewing
The New Lawyer Section Chairs, Erica Green and Jimmy Snodgrass are shown with U.S. Magistrate Judge Bruce Guyton on August 28.
JUDGES WITH FRIENDS: THE ABA’S NEW GUIDE TO DISCLOSURE AND DISQUALIFICATION (Continued from page 13) In one notable exception, Frazier v. Frazier, the Tennessee Court of Appeals found grounds for disqualification based on the depiction on Instagram of a friendship between judge and attorney.16 The appellate court explained that the existence of the judge-lawyer friendship does not mean that the judge cannot be fair and impartial.17 Nonetheless, the social media depiction of that friendship gave a reasonable basis – particularly to the opposing party who viewed the Instagram photos of judge and opposing attorney together at a football game – for questioning the judge’s impartiality.18 At first blush, this analysis may seem to be at odds with the Formal Opinion’s insistence that the existence of a “friendship” between parties on social media is not as important as the substance of the relationship.19 But the Frazier court does not suggest otherwise. In the court’s analysis, it was not the Instagram friendship/follower relationship of judge and attorney that provided grounds for disqualification, but the fact that a reasonable person who saw the football game photos of judge and attorney would question the judge’s impartiality.20 In the final analysis, ABA Formal Opinion 488 provides valuable guidance to Tennessee judges and lawyers. Because the Model Code of Judicial Conduct provisions and the Tennessee CJC Rule mirror one another in the area pertinent to the “friendship” analysis (the standard of whether the judge’s “impartiality might reasonably be questioned”), the Formal Opinion is helpful for interpreting the Tennessee rule. And while some of the same guidance might have been gleaned from Tennessee case law, the Formal Opinion provides a structure for that analysis – with definitions of acquaintance, friend, and close personal relationship – that Tennessee attorneys and judges should find useful. Even with this Formal Opinion as a helpful tool, Tennessee practitioners should keep the Frazier case in mind; it highlights the reality that a picture posted to social media can be weightier in creating a reasonable question of impartiality than a judge’s dry discussion of the closeness of a friendship. Phillips v. Phillips, 2013 WL 3462731 (Tenn. Ct. App. July 8, 2013). The ABA Formal Opinion discussed in this article notes that the term “disqualify” and “recuse” can be used interchangeably. ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 488, at 1, n.2 (Sept. 5, 2019). 3 TCJC Rule 2.11 and ABA Model CJC Rule 2.11 are identical in the provisions discussed in this column; the Tennessee rule contains two additional subparts of the rule (parts 2.11(A)(6)(e) and (D) and a number of additional comments ([7]-[11]), all not applicable to the discussion here. 4 TCJC R. 2.11(A)(1); ABA Model CJC R. 2.11(A)(1). 5 TCJC R. 2.11(C); ABA Model CJC R. 2.11(C). There is an additional ground for disqualification that cannot be waived in Tennessee: the judge’s previous participation in a judicial settlement conference in the matter. TCJC R. 2.11(C). 6 TCJC R. 2.11(A)(2)-(6); ABA Model CJC R. 2.11(A)(2)-(6). 7 Id. at 2. 8 ABA Formal Op. 488, at 2. 9 Id. at 4. 10 Id. 11 Id. at 5-6. 12 Id. at 6. 13 Id. 14 Id. 15 See, e.g., Hamilton v. Methodist Healthcare Memphis Hosp., 2019 WL 4235000, *2-3 (affirming t1 2
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trial court judge denial of motion to recuse based on her determination that her request for a letter of recommendation from an attorney at the defendant’s law firm does not provide a reasonable basis for the court’s impartiality to be questioned); Anderson Lumber Co., Inc. v. Kinney, 2016 WL 6248597, *3-4 (Tenn. Ct. App. Oct. 26, 2016) (affirming trial court decision denying motion to disqualify based on trial court’s analysis that despite some social interaction (including church attendance) “no reasonable person would question the judge’s impartiality”); Groves v. Ernst-Western Corp., 2016 WL 5181687, *7 (Tenn. Ct. App. Sept. 16, 2016) (agreeing with the trial court in denying a motion to recuse that the record does not support “an ongoing business or personal relationship with Defendants” and thus “the judge’s involvement with the Defendant does not constitute a reasonable basis for questioning his impartiality.”); In re Conservatorship of Patton, 2012 WL 4086151, *3 (Tenn. Ct. App. Oct. 2, 2012) (affirming decision not to recuse where attorney was a former law clerk of the judge and considered the judge a mentor, reasoning that “these circumstances, without more, [are] inadequate to establish an appearance of impropriety.”). 16 Frazier v. Frazier, 2016 WL 4498320, *7 (Tenn. Ct. App. Aug. 26, 2016). 17 Id. at *7. See also id. at *5 (agreeing that the “existence of a friendship between a judge and an attorney is not sufficient, standing alone, to mandate recusal.”). 18 Id. at *7. 19 ABA Formal Op. 488, at n. 11 (explaining that the existence of a social media “friendship” is not dispositive of the issue, and that a judge must determine the nature of the relationship using the guidance provided in the formal opinion). 20 Frazier, 2016 WL 4498320, at *7.
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October 2019
L E G A L U P DAT E By: April James Professor of Law at Lincoln Memorial University School of Law By: Bruce Beverly Professor of Law at Lincoln Memorial University School of Law
SPEAK NOW OR FOREVER HOLD YOUR PEACE: PROPOSED CHANGES TO DISCOVERY RULES On July 19, 2019, the Advisory Commission on the Rules of Practice & Procedure met and finalized formal recommendations that the Committee made to the Tennessee Supreme Court. One such recommendation includes a proposed amendment to Rule 26 of the Tennessee Rules of Civil Procedure that relates to discovery. The amendment, if approved, will create mandatory, unsolicited, discovery disclosures between all civil litigants, with additional requirements for parties to a divorce action (not parentage, custody or visitation matters).1 The proposed amendments substantially track their federal counterpart, and to the extent that your practice occasionally or frequently has you dabbling in federal court matters, there are no hidden pitfalls to note in this proposed version. However, for the practitioners that limit their practices to state court litigation matters, particularly those who handle divorces, the enactment of mandatory disclosures will most assuredly change the processes that you have developed in your office for the handling of clients, cases and scheduling. The proposed Rule 26.07 will require parties to provide, among other things, information on any fact witnesses, including those that are not under the party’s control or that are even adverse to them. All relevant documents, including those related to damages or electronically stored information will be required to be provided as if a Rule 34 request has been made. In divorce cases, additional disclosures will include an asset/debt distribution list that asserts values and classifies property, a summary of monthly expenses, income summary and tax returns for two years.
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with court notification, thereby essentially rendering these “mandatory” provisions merely a suggestion. • The extensive and specific disclosures may be overly burdensome to pro-se litigants, and may place working, self-filing divorcees at a disadvantage in their cases as the gathering of these documents could take a substantial amount of time and expense earlier in the case than previously experienced. • The application of the Rule is under-inclusive because the additional requirements related to divorces do not expressly include custody, child support or parentage actions. • The mandatory document production may reduce additional requests, as in many instances, the mandatory documents will be sufficient to effectuate a settlement. • Early disclosures will allow litigants to customize their follow-up discovery requests based upon the information revealed by the mandatory disclosures. Not surprisingly, most litigators like to do things the way they like to do things and even the prospect of change is met with skepticism of its merit or necessity. With that said, the consensus seems to be that the new Rule has merit but creates some new hurdles that attorneys and pro-se litigants will have to navigate if the discovery rules are amended. At very least, litigants should be advised that the new requirements may create additional expense in the early stages of their case.
he consensus seems to be that the new Rule has merit but creates some new hurdles that attorneys and pro-se litigants will have to navigate if the discovery rules are amended.”
If adopted, mandatory disclosures must be made by all parties 30 days following the filing of the Defendant’s Answer and, as is customary, disclosures must still be “seasonably”2 supplemented. Sixty days prior to trial or 30 days prior to any discovery deadline, discovery must be supplemented or a notice must be provided to all parties that no supplement is required. The Rule specifically prohibits a party from asserting that investigation of the matter is ongoing or that the other party has not complied as bases for not providing disclosures. The proposed Rule also has a modification and opt-out clause that permits the parties to consent, in writing, to modify the application of the Rule or to opt out of its application entirely. The catch – notice of such must be filed with the Court, and the Court can always apply the Rule in any way it deems just, including creating its own plan for discovery. We have informally polled some of our colleagues in the bar and on the bench, read the scuttle on the internet and debated it among ourselves. Here are a few of the comments that we have received or thoughts that we have on the proposed new Rule: • It is unnecessarily intrusive insofar as the Rule requires automatic disclosure of financial information even in divorce cases where there are no children (and therefore no child support is due and owing) and no party has requested spousal support. • The mandatory disclosures may be modified by a court or the attorneys October 2019
The Court of Appeals once noted that discovery rules should strike a balance between enabling parties to seek truth and resolve disputes with the facts – not legal maneuvering, and to prevent lazy attorneys from reaping the rewards provided by their diligent opponents.3 Although often left unstated by Courts, a third, latent, purpose for discovery or rules related to it, is the pressure to settle that the threat of looming discovery, the time commitment of discovery, the hourly rate applicable to discovery and, …well, the DISCOVERY of discovery –particularly in divorces – has on litigants. The proposed new Rule takes that reality into account when it exempts from mandatory disclosure requirements divorce actions in which marital dissolution and permanent parenting agreements are filed prior to the expiration of the deadline to serve mandatory disclosures. Whether you think that the proposed changes will benefit your clients and your practice or the possibility of its enactment has you seriously considering transactional work or early retirement, you should share your opinions with the Supreme Court. The bench, bar and public have been invited by the Court to submit written comments related to the proposed amendments on or before December 13, 2019 by email to appellatecourtclerk@tncourts.gov.
1 In re Amendments to the Tenn. Rules of Civil Procedure, No. ADM2019-0144, https://www.tncourts.gov/sites/default/files/order_for_public_comment_2020_ rules_package.pdf (last visited Sept. 4, 2019). 2 Id. at §26.07(6)(A). 3 White v. Vanderbilt University, 21 S.W.3d 215 (Tenn. Ct. App. 1999).
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Tennessee Joins the Ranks of Jurisdictions Adopting the Uniform Bar Exam For first-year law student Peter Amoruso, had it not been for Tennessee’s recent adoption of the Uniform Bar Exam, he would have only considered a couple of law schools in his home state of New York. However, because of the UBE – which both Tennessee and New York, along with more than 30 other jurisdictions, have adopted – Mr. Amoruso significantly expanded the number of law schools he was seriously considering.
courses. This portion is weighted 50%. Prior to its adoption of the UBE, Tennessee was already using two of the three components of the UBE to make up its bar exam: the Multistate Bar Exam and the Multistate Performance Test. The old Tennessee bar exam also included locally drafted essay questions.
He’s now attending Lincoln Memorial University Duncan School of Law. “I wanted to go to a school that had adopted the UBE so I would have more options than just staying in New York,” said Mr. Amoruso, who previously lived in Smithtown, New York, on the north shore of Long Island. “After learning about the UBE, the number of schools I applied to went from just a couple New York law schools to schools from Tennessee to Washington, D.C.”1
Mr. Amoruso isn’t alone.
The Uniform Bar Exam Tennessee adopted the Uniform Bar Exam in April 2018, becoming the 32nd jurisdiction to adopt to exam. So far, Tennessee has administered the UBE twice, in February 2019 and July 2019. With more states adopting the UBE – there are now currently 35 jurisdictions that have or will be administering the UBE – students are no longer feeling restricted to considering law schools in the state where they intend to practice to give them the best chances of passing that state’s bar exam. The UBE is a two-day, standardized bar exam prepared and coordinated by the National Conference of Bar Examiners to test knowledge and skills that every lawyer should be able to demonstrate prior to becoming licensed to practice law.2 The UBE does not require examinees to know any jurisdiction-specific law. Instead, most questions must be answered according to the generally accepted view, as distinguished from any contrary local principle that may be followed in Tennessee. The UBE is comprised of three components that can sound like an alphabet soup of exams: the MPT, the MEE, and the MBE. The MPT, or the Multistate Performance Test, consists of two 90-minute questions which are designed to test an examinee’s ability to use fundamental lawyering skills in a realistic situation and complete a task that a beginning lawyer should be able to accomplish. Jurisdictions that administer the UBE weight the MPT component 20%. The MEE, or the Multistate Essay Examination, consists of six 30-minute questions covering subjects like Business Associations, Family Law, Trusts and Estates, and Secured Transactions – just to name a few. This portion of the UBE is weighted 30%. The MBE, or the Multistate Bar Exam, is a 200-question, multiple-choice exam that is administered over a six-hour period and covers subjects typically covered during the first two years of law school— for example, Torts, Real Property, Contracts, and Evidence, among other
16
The most obvious benefit of the UBE is the portability of scores among participating jurisdictions. The UBE allows Tennessee lawyers passing the UBE to transfer their passing scores to other UBE states. Similarly, the UBE enables lawyers in other UBE states to transfer their exam scores to Tennessee without sitting for another bar exam. “Tennessee’s adoption of the UBE provides graduates of Tennessee law schools with greater opportunities to practice law in other parts of the country without the need to sit for multiple bar exams,” said Gary R. Wade, Dean at the Lincoln Memorial University Duncan School of Law.3 According to Dean Wade, this eliminates the time and effort many recent graduates previously spent in having to prepare for and take different bar examinations to be licensed in multiple jurisdictions.4 This is particularly helpful for a state like Tennessee, which borders eight other states – Kentucky and Virginia to the north; North Carolina to the east; Mississippi, Alabama, and Georgia in the south; and Arkansas and Missouri along the Mississippi River in the west. Four of those states – North Carolina, Alabama, Arkansas, and Missouri – have already adopted the UBE.5 Additionally, nearby states that have adopted the UBE include South Carolina, West Virginia, and Ohio.6 Although UBE scores are transferable, each UBE jurisdiction retains authority to set the acceptable UBE passing score and candidates’ character and fitness qualifications. In Tennessee, the minimum passing UBE score is 270. Other jurisdictions’ minimum passing UBE scores range from 260 (Alabama, Minnesota, Missouri, New Mexico, and North Dakota) to 280 (Alaska).7 A passing UBE score means that qualified applicants from other UBE states can be admitted to Tennessee without having to take another bar exam, provided they comply with all other requisites, including character and fitness requirements. Also, some states, including Tennessee, have a separate jurisdiction-specific component that examinees must complete prior to admission. This component—which can be a test, course, or some combination of the two—is designed to assess an examinee’s knowledge of jurisdiction-specific law.
The Tennessee Law Course
The NCBE provides information regarding jurisdiction-specific law components for states adopting the UBE.8 Some states have no jurisdiction-specific law requirements,9 others have pre-admission requirements,10 and others have post-admission requirements.11 Tennessee has a pre-admission component mandated by Rule 7 of the Tennessee Supreme Court Rules, called the “Tennessee Law Course.”12
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Pursuant to Rule 7, the Tennessee Law Course provides October 2019
COVER STORY By: Vonda
Laughlin
Director of Bar Studies and Associate Professor of Law, Lincoln Memorial University, Duncan School of Law
By: Tommy
Sangchompuphen
Associate Dean for Student Learning and Associate Professor of Law, Lincoln Memorial University, Duncan School of Law instruction in specific areas of Tennessee law not addressed by the UBE.13 In addition to those taking the Tennessee bar examination, others seeking a license to practice law in Tennessee must complete the Tennessee Law Course. Specifically, in addition to those seeking admission to the bar through examination, the Tennessee Law Course must be completed by applicants seeking admission by transferred UBE, applicants seeking admission without examination, and applicants seeking temporary licensure as a spouse of a military service member.14 No person, however, holding a valid Tennessee law license as of the effective date of the rule, January 1, 2019, is required to take the Tennessee Law Course.15 The Tennessee Law Course takes about 7.5 hours to complete.16 It consists of lectures with PowerPoint slides and interactive multiplechoice and true-false questions for Tennessee law in the following subjects: • • • • • • • • • •
Administrative Law focusing on the Tennessee Claims Commission, Employment Law, and Workers’ Compensation Business Associations Constitutional Law Criminal Law & Procedure Family Law focusing on Divorce, Property, Alimony and Custody, and Juvenile Matters. Professional Responsibility Property Law Tennessee Rules focusing on Civil Procedure, Evidence, and Appellate Procedure Torts Wills, Estates, Trusts and Probate17
Applicants are also provided with outlines for all subjects on the Board’s website.18 Course material was drafted by law professors from law schools across Tennessee, the Tennessee Board of Law Examiners, exam assistants to the Board, and members of the Tennessee Law Course Committee. Outlines and scripts were reviewed by these same groups as well as by Supreme Court staff attorneys, staff of the Administrative Office of the Courts, and topic presenters.19 The Board of Law Examiners provides information to applicants regarding payment and registration.20 The Board, with the approval of the Supreme Court, also sets the fee for the course.21 Presently, there is a $15.00 charge.22 The Tennessee Law Course must be successfully completed within one year of the date of completion of all other requirements to be eligible for a Tennessee law license. In the event an applicant completes the Tennessee Law Course but does not then complete all other requirements for eligibility to obtain a law license within one year, the applicant must repeat the Tennessee Law Course.23 According to Lisa Perlen, Executive Director for the Tennessee Board of Law Examiners, reaction to the course from recent examinees has been very positive:
who have completed the course have remarked on the useful content included in the course, the online delivery of the course and the subject-matter outlines that are posted on the Board of Law Examiners website.24 For Mr. Amoruso, the UBE provides him the best of both words – being able to attend law school in Tennessee and being prepared to take the bar exam in New York, where he hopes to work for the law firm his father uses for his business. “I am truly glad Tennessee did adopt the UBE because the community and atmosphere at LMU is amazing,” Mr. Amoruso said. “After taking the bar in Tennessee, my plan right now is to go back to New York. The goal is to get at least a 270 on the bar here, which is a passing score in New York. The portability of the score makes it so much easier to practice where I want to and go to school where I wanted.”
E-mail from Peter Amoruso, First-Year Law Student, Lincoln Memorial University Duncan School of Law, to author (Sept. 8, 2019, 19:53 EST) (on file with author). National Conference of Bar Examiners, Understanding the Uniform Bar Examination, The Bar Examiner, Sept. 2016, at 67. 3 E-mail from Gary R. Wade, Dean, Lincoln Memorial University Duncan School of Law, to author (Sept. 9, 2019, 10:06 EST) (on file with author). 4 Id. 5 Nat’l Conf. of Bar Examiners, Jurisdictions That Have Adopted the UBE, http://www. ncbex.org/exams/ube/ (last visited September 9, 2019). 6 Id. 7 Nat’l Conf. of Bar Examiners, Minimum Passing UBE Score by Jurisdiction, http://www.ncbex.org/exams/ube/score-portability/minimum-scores/ (last visited September 9, 2019). 8 Nat’l Conf. of Bar Examiners, Local Components, http://www.ncbex.org/exams/ube/ score-portability/local-components/ (last visited Aug. 23, 2019). 9 Jurisdictions with no required state-law component to bar licensure are Alaska, Arkansas, Colorado, Connecticut, Illinois, Iowa, Kansas, Maine, Minnesota, Nebraska, North Dakota, Rhode Island, and Wyoming. Id. 10 Jurisdictions with a state-specific pre-admission component to bar licensure are Alabama, Arizona, Maryland, Massachusetts, Missouri, Montana, New Mexico, New York, North Carolina, South Carolina, Tennessee, Virgin Islands, and Washington. Id. 11 Jurisdictions with a state-specific post-admission component to bar licensure are the District of Columbia, Idaho, New Hampshire, New Jersey, Oregon, Utah, Vermont, and West Virginia. Id. 12 Tenn. Sup. Ct. R. 7(1.07). 13 Id. 14 Tenn. Sup. Ct. R. 7(1.07)(a)(2-4). 15 Tenn. Sup. Ct. R. 7(1.07)(i). 16 Tennessee Board of Law Examiners, TLC Registration Application Available for July 2019 UBE Applicants, http://www.tnble.org/news/tlc-registration-application- available-july-2019-ube-applicants (last visited Aug. 23, 2019). 17 See Tennessee Board of Law Examiners, Tennessee Law Course, http://www.tnble. org/tnlaw/first-time/tennessee-law-course (last visited Aug. 26, 2019). 18 Id. 19 E-mail from Lisa Perlen, Executive Director, Tennessee Board of Law Examiners, to author (Aug. 26, 2019) (on file with author). 20 Tennessee Board of Law Examiners, Tennessee Law Course, supra note 13. 21 Tenn. Sup. Ct. R. 7(1.07)(d). 22 Tennessee Board of Law Examiners, Fees, http://www.tnble.org/tnlaw/first-time/ fees (last visited Aug. 28, 2019). 23 Tenn. Sup. Ct. R. 7(1.07)(g). 24 E-mail from Lisa Perlen, Executive Director, Tennessee Board of Law Examiners, to author (Aug. 20, 2019) (on file with author). 1
2
Since the Tennessee Law Course went live on April 18, 2019, a total of 273 applicants have completed the seven and one-half hour course. Completion of the Tennessee Law Course is a requirement for anyone seeking to be licensed to practice in Tennessee. Feedback from recent law school graduates as well as attorneys who have been practicing in another jurisdiction for at least five years has been overwhelmingly positive. Those October 2019
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BARRISTER BITES By: Angelia M. Nystrom, JD, LLM University of Tennessee Institute of Agriculture
EASY FALL FAVORITES (NOT TO
INCLUDE HUNGRY MAN TV DINNERS) Lately, I’ve seen the world through the windows of cars and planes. It seems that I have been traveling non-stop for work, which was confirmed a few weeks ago when I was greeted by name at the Delta counter at TYS. Later that same week, I received an email from Delta upgrading me to Gold Medallion status based on the number of flights in a few weeks’ time. I’ve become an expert at packing, luggage selection, and airport navigation. Suffice it to say, life has been busy. With all that has been going on, I’ll admit that I have neglected things at home. Groceries are generally scarce (it does not help that my 13 year-old is now eating us out of house and home), and the Bite Squad drivers greet our dog by name. It has been all that I can do to keep up with Trace, Hugh, and late summer/early fall schedules. It’s been a “just get by” kind of existence, and creativity-- especially when planning meals-- has gone by the wayside. A few weeks ago, though, I had two “back-to-back” weeks where I volunteered to provide dinner for the GKAISA Coaches Council and the GKAISA Board. Because I had not had time to experiment with anything new, I decided that I would try for something really good—but really easy. Hugh assisted with menu planning, and we came up with a spread that consisted of some or our favorites-- salad, beef tenderloin, twice-baked potatoes, roasted sweet bell peppers and pie. It’s easy… it’s good… and I’m willing to share. The salad is my very favorite salad, and it was borne out of a happy accident (ie.,throwing things together to see what worked) a few years ago. It consists of six ingredients, all of which are pre-done. I start with the spring mix lettuces as a base in a large bowl (triple-washed and ready to use). I then chunk one or two apples (usually pink lady or gala) and add them to the lettuce. (To prevent them from turning brown if you are not eating immediately, toss them with a little bit of the salad dressing.) Add raw pecan halves, a container of bleu cheese crumbles, and craisins. When you are ready to eat, toss the salad with Stonewall Kitchen’s Maple Balsamic dressing (purchased at Fresh Market). The salad is easy, it is pretty, and it tastes great. (Note: It is also good as a meal if you add a grilled chicken breast.)
The sweet bell peppers are one of my favorite dishes, and I stole it from my sister-in-law, who got it from Weight Watchers (I’m not joking). Place a bag of small mixed bell peppers in a baking dish. Drizzle with olive oil and top with crumbled feta cheese. Finish with a drizzle of balsamic vinegar, and bake at 350 degrees until the peppers start to brown. They are amazing…. And apparently good for you, too. The twice baked potatoes are the easiest part of the meal. I pick them up from the meat section at Butler and Bailey – they are just as good or better than the ones I make from scratch. To prepare, remove the Saran wrap and bake at 350 until they start to brown on top. I usually serve them with sour cream and crumbled bacon, but they are good by themselves, as well. For dessert (on days when company is coming), I’ll pick up either an apple or a caramel turtle pie from Buttermilk Sky. Again, I figure that I shouldn’t waste my time making a pie when theirs are usually better. Both pies are great complements to the flavors of the other foods. This meal has worked so well that it has become our “every Sunday” dinner (which means that leftovers provide dinner for Monday, Tuesday and sometimes Wednesday). Also, if I am heading out of town, I’ll prepare it before I go so that Hugh and Trace have decent food in the house. During my “travel phase” a couple of months ago, I did not leave food for Hugh and Trace. After all, Hugh is a grown man, and the two of them could fend for themselves. I was a little horrified when I saw a photo of Trace eating a frozen Hungry Man TV dinner. I later learned that Trace was not a fan and had left it for the dog to find. Suffice it to say, little dogs with sensitive tummies and Hungry Man TV dinners are not a good combination. The beef tenderloin meal is always a hit, and there are never leftovers for the dog to find.
I like beef tenderloin as a main course, as it is a hard thing to really mess up. I’ve tried a number of beef tenderloin recipes, but my very favorite comes from my friend Ross Dempster. I start with a 6-7 lbs tenderloin, which I let rest at room temperature for about an hour. The marinade is key, and it comes out perfect every time. To make it, combine 2 Tbs Kosher salt, 3 Tbs coarsely ground black pepper, 2 Tbs brown sugar, 3 Tbs bacon grease (I use grease from Benton’s hickory smoked bacon… I keep a container in the refrigerator at all times), and ½ cup olive oil. Mix well and coat the tenderloin with the marinade. Bake in a roasting pan at 400 degrees until it reaches the desired temperature. (To ensure that it is perfect every time, I use a meat thermometer that can withstand the heat of the oven). While my husband and son prefer that I remove it from the oven when the internal temperature reaches 135 degrees, I usually cook it to an internal temperature of 150 degrees. In my oven, this is a medium – and it suits me just fine. After removing it from the oven, I usually will cover loosely with foil and let it sit for about 15 minutes. Serve with horseradish and Sister Shubert’s rolls.
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DICTA
October 2019
VITE ET CREDE By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.
OUT OF THE ASHES “We of the earlier time saw the things about us through a tenuous and almost colorless atmosphere – for we lived in a present without a past.”1 Those are the words of Frederick Francis Cook, describing his beloved city of Chicago in the fall of 1871. It is a lovely account of a rapidly growing city poised as the “nexus between the manufacturing East and the agricultural West in a nation that was establishing its eminence in an international economy.”2 But Cook notes one other thing: “barely an inch-and-a-half of rain had fallen since Independence Day, and . . . the city of Chicago was dry – very dry.”3 By the eighth day of October 1871, Chicago was in flames. “It was like a snowstorm, only the flakes were red instead of white.”4 Residents remember that fires were fairly common, but easily extinguished by the fire departments throughout the city.5 However, this one was different. Between three months of dry weather and the high winds which whipped through the city, the fire leapt from neighborhood to neighborhood. As attorney Bessie Bradwell Helmer observed, “given the dry summer and the heedless way the city had been built and managed in regard to its vulnerability to fire, a kick from a cow would have been sufficient but by no means necessary to burn Chicago down.”6 In two days, two-thirds of the city was gone, at least 100 people were dead, and 100,000 people – a full one-third of the population were homeless. Chicago was in chaos. There was extensive looting and reports that professional thieves from out-of-town were rampant. “The city is infested with a horde of thieves, burglars, and cut-throats, bent on plunder, and who will not hesitate to burn, pillage, and even murder, as opportunity may seem to offer to them to do so with safety.”7 Chicago Mayor Roswell B. Mayor declared martial law and turned the security of the city over to Lieutenant-General Phillip Sheridan and the U.S. Army.8 However, Chicago residents needed more than law and order. They needed to see the future and to see themselves in it. They also needed someone to oversee the millions of dollars of donations that were pouring in from the rest of the United States. There were concerns about placing those kinds of funds in the hands of local officials who, even at that time, were known for . . . shall we say “favoritism.”9 Thus, the Chicago Relief and Aid Society was formed, and the Chairman of its Executive Committee was none other than attorney, Mr. Wirt Dexter.10 For three years, Mr. Dexter and the other members of the Society served their city, without pay. They divided the city into districts, opened up an office in each district, and from that office, distributed food, clothing, and medicine – particularly smallpox vaccinations to stop the spread of the deadly disease. They designed and distributed material for one-room “shelter houses” which could be built quickly, easily, and cheaply and were warm enough to get the homeless out of Chicago’s early winter that followed right after the fire.11 They were also careful to not create dependency, or, as they called it, “withholding encouragement to idleness.”12 Once a family was able to earn their own support, they were removed from the roles of those receiving aid.13 Overall, the efforts of the Chicago Relief and Aid Society have been described as one of the most successful disaster relief efforts in history. There is a reason why attorney Wirt Dexter was the perfect person to lead the rebuilding of Chicago, because his story is one of rebuilding. Almost exactly one year before the Great Chicago Fire, Mr. Dexter sustained what most would consider a substantial setback to any attorney’s professional career – he and his law firm lost their malpractice case. The facts were fairly simple. Mr. Dexter and his law partner were retained to file a $3,000 claim against an estate.14 The law firm made some effort to have the claim allowed, but as the Illinois Supreme Court noted, “the appellees seem to have given the matter very little, if any, personal attention. The care and management of the case was entrusted October 2019
almost entirely to Mr. W. P. Smith, who was at that time a clerk in their office.”15 The Supreme Court found that there was no reason why the claim should not have been allowed, “if the defendants, or either of them, had given their personal attention to it.”16 That is harsh even for legal prose. But, Justice John M. Scott did not end on that note. He had a few extra words for Mr. Dexter and his law partner: It is but justice to these defendants, who are personally known to us to be lawyers of the highest respectability, for us to say that there is nothing in all this record which in any degree impeaches their standing as lawyers or their characters as men of undoubted integrity. It is simply an act of unreasonable neglect, or perhaps, to speak more accurately, of culpable forgetfulness on their part, for which they must, nevertheless respond in damages to the extent of the injury sustained.17 That is the essence of a true professional: the ability to see when someone has messed up and hold them accountable for it – plus the wisdom to recognize that messing up is not always attributable to a flawed character. Justice Scott saw this in Wirt Dexter and sent him out of the courthouse with a few less dollars but with his integrity and professional reputation intact. One year later, as Dexter was rebuilding Chicago, his peers had this to say: “In the midst of the most pressing demands of their private affairs, men of great good sense and well informed have taken time to devise and bring others into a comprehensive and sufficient organization, acting under well-guarded laws.”18 Both Justice Scott and Wirt Dexter were visionaries. Justice Scott saw Dexter’s potential in the midst of professional embarrassment but gave him a path to rebuild his career. Dexter saw the potential in a burned-out city and devoted three years to rebuilding it. Visionaries see the potential in rubble – literally and figuratively – because seeing is believing. 1 Frederick Francis Cook, Bygone Days in Chicago (Univ. of Ill. Press 1910), available at https://digital.library.illinois.edu/items/f7d71ab0-1a05-0134-1d6d-0050569601 ca-f#?c=0&m=0&s=0&cv=0&r=0&xywh=-2246%2C0%2C6309%2C2999. 2 Id. 3 Id. 4 Bessie Bradwell Helmer, The Great Conflagration, available at https://www.greatchicagofire.org/great-conflagration/. 5 Id. 6 Id. Incidentally, this quote from Ms. Helmer is one of the origin stories for the urban legend that a cow started the Great Chicago Fire. Ms. Helmer graduated first in her class from Union College of Law (now Northwest University) a few years after the fire in 1882. She went on to have a fascinating career which included being the editor-in-chief and president of the Chicago Legal News. You can learn more about Ms. Helmer and her equally fascinating mother, Myra Bradwell, in Notable American Women 1607-1950: A Biographical Dictionary, Vol. II, p. 225, available at https://books.google.com 7 Chicago Evening Journal, Vol. 28:147 (Oct. 11, 1871), available at https://www.ebay.com/itm/Rare-CHICAGO-EVENING-JOURNAL-October-11-1871- Early-GREAT-CHICAGO-FIRE-Newspaper-/362658166991. 8 Charles C.P. Holden, Rescue and Relief, Chicago History Museum, available at https://www.greatchicagofire.org/rescue-and-relief/. 9 The Chicago Tribune described it as follows: “the foul brood of city politicians who greedily “counted...upon retaining place and putting their enemies under their feet, with the personal and pecuniary power which the handling of the relief fund and provisions in kind would give them.” Quoted in id. 10 Id. 11 Id. 12 Id. 13 Id. 14 Stevens v. Walker & Dexter, 55 Ill. 151, 1870 WL 6392 (Ill. 1870). 15 Id. at 155. 16 Id. 17 Id. at 156. 18 Holden, supra n. 8.
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barrister bullets BARRISTERS MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month at the Bistro by the Bijou (807 South Gay Street). Social time begins at 5:00 p.m., and the meetings begin promptly at 5:15 p.m. The next meeting will be held on October 9, 2019. There are many opportunities to get involved, and you are encouraged to contact Barristers President Mikel Towe (mtowe@lewisthomason.com) or Vice President Allison Jackson (ajackson@emlaw.com) for more information. STAFF THE VETERANS’ LEGAL ADVICE CLINIC The Veterans’ Legal Advice Clinic is a joint project of the KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox Co. Public Defender’s Community Law Office, the UT College of Law, LMU- Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. We serve approximately twenty to thirty veterans each month who have a variety of legal issues, including, but not limited to, family law, landlord/tenant, bankruptcy, criminal defense, consumer protection, contract, child support, and personal injury issues. We need attorney volunteers for the next two (2) clinics, which will be held on October 9 and November 13 from 12:00 to 2:00 p.m. at the Knox Co. Public Defender’s Community Law Office (1101 Liberty Street). Register to participate by clicking on October 9 and November 13 in the Event Calendar at www.knoxbar.org. SEEKING SPONSORS FOR CHARITY GOLF TOURNAMENT The Barristers and the KBA joined together to co-host the annual fourperson golf scramble on Monday, October 21, 2019 at the Holston Hills Country Club. If you know of someone who would like to participate as sponsor, please contact the Athletics Committee co-chairs, James Parker (jparker@hdclaw.com) or Patrick O’Neal (patrick.oneal@leitnerfirm.com).
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 November 7th on the KBA Events Calendar or by calling 865-522-6522. Please RSVP by November 4th. MEMBER APPRECIATION + WELCOME NEW LAWYERS CELEBRATION The KBA and the Barristers are pulling out all of the stops for the upcoming Member Appreciation + Welcome New Lawyers Celebration on October 24, 2019, from 5:00-8:00 p.m. at Schultz Bräu Brewing Company (126 Bernard Avenue). This is our way of thanking our existing members and welcoming all of the new lawyers who passed the July 2019 bar exam to the profession. Join us for a fun evening with your colleagues, family, and friends! A FREE drink ticket will be provided to each KBA member in attendance. This event is open to all KBA members, family, and friends. Please make a reservation by clicking October 24 in the Event Calendar at www.knoxbar.org. VOLUNTEER BREAKFAST The Volunteer Breakfast is a Barristers’ project. On the fourth Thursday each month at 6:15 a.m., the Barristers’ and their volunteers serve breakfast to individuals participating in the services of the Volunteer Ministry Center. If you are interested in sponsoring a breakfast or volunteering to prepare and serve breakfast in 2020, please contact Paul E. Wehmeier at pwehmeier@adhknox.com, Matthew Knable at knablelaw@ gmail.com.
CRAFT BREWS FOR COATS The KBA Barristers Hunger & Poverty Relief Committee will host a Coat Drive Event called “Craft Brews for Coats” on Monday, October 28 from 6:00-8:00 p.m. at ELST Brewing Company located at 2419 N. Central Street. All Coats collected will be donated to Knox Area Rescue Ministries (KARM’s) Coats for the Cold Program. How to Donate: Bring new or gently used men’s or women’s coat to the October 28th event and receive one FREE pint of beer for donating to the Coats for the Cold drive. Please no rips, tears, holes, or stains in clothing. If you have any questions please contact Hunger and Poverty Committee Co-Chairs, Jason Collver at 376-2145 or Meagan Collver at 637-0203. FALL DIVERSITY MIXER The Barrister’s Diversity Committee invites you to attend its Annual Fall Diversity Mixer on November 7, 2019 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
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Veterans Legal Advice Clinics Seventeen veterans and their family members received help during the September 11th legal advice clinic. In addition to staff from LAET and the KBA, fifteen attorneys and four law students participated.
DICTA
October 2019
OF LOCAL LORE & LAWYERS By: Joe Jarret Attorney At Law, University of Tennessee
SPENCER DEATON: KNOXVILLE LOYALIST, CIVIL WAR SOLDIER, AND CONDEMNED SPY
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To give you an idea of what conditions were like for Deaton and other prisoners in Castle Thunder Prison, by January 1863, the 1,400-capacity prison housed 3,000 men and women, and diseases such as dysentery and smallpox were prevalent. Struggling to maintain order among such a large and diverse population, prison officials – including its commandant, Captain George W. Alexander – often resorted to violence. In April 1863, the Confederate Congress authorized an investigation and heard accusations of unauthorized lashings and Alexander’s use of his large dog Nero to intimidate prisoners. In the end, however, Congress sanctioned the violence, which continued until Alexander was replaced by Dennis Callahan in February 1864.3 Because of his superb fighting abilities, Deaton soon caught the attention of Confederate forces. While Union newspapers described him as “well-built, finely proportioned, muscular young fellow in the prime of life and full-flush of health, intelligence, courageous and determined,” Southern newspapers described him as a “loathsome scoundrel, traitor, spy, renegade, and threat to the Confederacy.”4 According to one newspaper account, the Confederacy was outraged by Deaton’s ability to escape and evade Confederate forces, leading them to “hate Deaton with an exceeding hatred.” The primary reason for this hatred, it appears, was due to Deaton’s ability to slip any snare or trap. Commented one reporter, “He had numerous hair-breadth escapes; was fired upon again and again; his clothes pierced with bullets; and yet he was unharmed. He seemed to live a charmed life.”5 October 2019
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Weekly Advertiser and Register (Mobile, Alabama) 27 Feb 1864, Sat Page 2 Browne, J. H. (1865). Four Years in Secessia: adventures within and beyond the Union lines... With illustrations. OD Case & Company. Id. Id. Weekly Advertiser and Register (Mobile, Alabama) 27 Feb 1864, Sat Page 2 Browne, J. H. (1865). Four Years in Secessia: adventures within and beyond the Union lines... With illustrations. OD Case & Company. Weekly Advertiser and Register (Mobile, Alabama) 27 Feb 1864, Sat Page 2 Id.
DICTA EDITORS’ NOTE:
DICTA is a monthly publication of the Knoxville Bar Association. DICTA is offered to all members of the Knoxville Bar Association as one of the many benefits of membership. This issue represents one of our “super circulation issues” and is sent not only to all members of the Knoxville Bar Association but to all lawyers licensed to practice law in Knox County and all of its contiguous counties, Blount, Loudon, Anderson, Union, and Sevier. DICTA is an important publication to the Knoxville Bar Association and it provides news regarding members and events of the Knoxville Bar Association as well as information on upcoming CLE seminars. It also provides news and notices from the Knoxville Bar Association president, the Barristers, and the Knoxville Bar Association's nineteen different committees and eleven different sections. If you are interested in becoming a member of the Knoxville Bar Association, please contact KBA Executive Director Marsha Watson at 505 Main Avenue, Suite 50, P.O. Box 2027, Knoxville, Tennessee 37901-2027, (865) 522-6522 or access our award-winning website at www.knoxbar.org.
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Unfortunately for Deaton and many Union Loyalists residing in Tennessee, on March 1, 1862, Confederate president Jefferson Davis declared martial law and suspended both the writ of habeas corpus and civil jurisdiction. Following these decisions, Confederate authorities were forced to deal with an overwhelming number of prisoners charged with such crimes as treason, desertion, intoxication, theft, murder, espionage, and fighting for the Union. In order to remedy the situation, the Confederacy established Castle Thunder Prison.
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According to historian J. H. Browne, Deaton was born and raised in Knox County on a farm in Strawberry Plains. When hostilities between North and South commenced, Deaton, a Union loyalist, felt compelled to take up arms against the South. Because Union loyalists were severely outnumbered by Confederate forces, Deaton led a group of like-minded citizens to “adopt guerrilla warfare as a means of protection.” About that time, Tennessee’s Sixth Regiment (organized at Boston and Williamsburg, Kentucky, and Knox County, Tennessee) was formed. The regiment was attached to the 25th Brigade, 7th Division, Army of the Ohio. During the course of the war, the regiment lost a total of 201 men during service; 1 officer and 43 enlisted men killed or mortally wounded, and 157 enlisted men died of disease.2
After months of fighting, Deaton, according to one historian, “had strong home attachments, and for a number of months, he had been unable to hear directly from his wife and children whom he most tenderly loved. His foes were aware of that, and sent him word by a person whom he deemed trustworthy, that if he would call at a certain place, on an appointed night, he would obtain news of his family.”6 The trap was laid, sprung, and Deaton was captured. Imprisoned in Castle Thunder Prison, he was charged with multiple crimes against the Confederacy, summarily and quickly convicted, and sentenced to death by hanging. Immediately prior to his hanging, Deaton had fallen ill, causing the warden of Castle Thunder to yell to the executioner, “Hurry! Hurry! The damn Yankee will die in your arms if you don’t hang him quick!”7 Unfortunately, Deaton did not die quickly. Instead, “the loyal Tennessean was swaying in the air, struggling with death, and struggling hard. It seemed he would never die!”8 But die he did, in service to the people of East Tennessee he so dearly loved.
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“Yesterday, shortly afternoon [sic], the extreme penalty of ignominious death for outraged military law was visited upon Spencer Deaton at Castle Thunder Prison in Richmond.”1 And so was announced the execution of Knox County native Spencer Deaton, a Union loyalist and infantryman who guided other Unionists out of Confederatecontrolled East Tennessee to assist them in joining Federal forces in the fight against the Confederacy. At 22 he was captured in Richmond, Va., by the Army of the Confederacy, tried, hanged as a spy, and buried in Richmond National Cemetery.
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Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records: Lisa K. Bailey BPR #: 035927 Law Office of Lisa K. Bailey P.O. Box 70303 Knoxville, TN 37938-0303 Ph: (865) 640-4132 lbailey@lisabaileylaw.com Lesa Fugate Christian BPR #: 016693 US Department or Health and Human Services 601 East 12th Street, Suite 221 St. Louis, MO 64106-2817 Ph: (865) 414-3695 lesa.christian@hhs.gov Chelsea A. Harris BPR #: 034512 Knox County Public Defender’s Community Law Office 1101 Liberty Street Knoxville, TN 37919-2328 Ph: (865) 594-6120 charris@pdknox.org Brent R. Laman
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BPR #: 034512 245 Peachtree Center Ave NE, Ste 2700 Atlanta, GA 30303-1227 John W. Routh BPR #: 010599 3232 Tazewell Pike Knoxville, TN 37918-2529 Ph: (865) 687-0021 johnwrouth@gmail.com Nathan D. Rowell BPR #: 017545 Ogle, Wyrick & Associates, P.C. P.O. Box 5365 Sevierville, TN 37864-5365 Ph: (865) 453-2866 nrowell@ogrlawfirm.com
DICTA
October 2019
BAR HOPPING By: Julia Hale Lewis, Thomason, King, Krieg & Waldrop, P.C.
Back for 2019, Bar Hopping highlights one of the many beautiful courthouses around the state. The trick? It is up to you to figure out where. Congratulations to Katie Ogle for correctly identifying the Jasper County Courthouse in Monticello, Georgia. You may recognize that courthouse from the film My Cousin Vinny. Think you can name this courthouse? Email jhale@lewisthomason.com with your answer. Correct answers will receive a shout-out in the next issue of DICTA. Check back next month for the reveal and a list of the big winners. Have a photo that you would like to submit? Send me an email and have it featured in an upcoming issue.
Annual Fall Hike
Saturday, November 9 The Professionalism Committee invites you to the annual fall hike on Saturday, November 9 at 9:00 a.m. at Fort Dickerson Park. Hiking on the easy to moderate trails of this 91-acre South Knoxville gem will provide vistas of downtown, the mountains and the quarry lake You may bring snacks and water for hiking as well as food and your favorite beverage for a post-hike picnic lunch. Please confirm your participation by registering online (click on November 9 on the event calendar at www.knoxbar.org). If you have questions about the hike, please contact Garry Ferraris at gferraris @ ferrarislaw.com. If you plan to bring food or drink for the picnic lunch, please let Chancellor John Weaver know what you plan to bring at john.weaver@knoxcounty.org. All are welcome to bring their family, and join us on Saturday, November 9, for this special time of enjoying nature, comradery and good food!
Directions: From downtown Knoxville, take the Henley Street bridge to Chapman Highway. Proceed South on Chapman Highway approximately 1 mile. Turn right on Fort Dickerson Road and park at the trailhead, 3000 Fort Dickerson Road. Look for the Harold Lambert Overlook.
October 2019
DICTA
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B I L L & P H I L’ S G A D G E T O F T H E M O N T H By: Bill Ramsey Neal & Harwell By: Phil Hampton Founder and CEO, LogicForce Consulting
THE STATE OF TENNESSEE GOES HI-TECH WITH AN ONLINE NOTARY PUBLIC ACT We are always excited when a governmental entity makes a decision to go hi-tech. The State of Tennessee has recently done so. We applaud its effort, and we are certainly interested to see how this online Notary thing will work out. The Tennessee Legislature passed House Bill 1794 amending Tennessee Code Annotated § 66-22-101 and § 8-16302. The purpose of the legislation is to allow electronic notarization of instruments.
6. Moreover, the online notary must keep a “secure” electronic record of all electronic documents notarized by the online notary public for at least five years that contains certain specific information about the document and the process. 7. The two-way video and audio communication must be encrypted. 8. The online notary public must make sure that all records relating to the transaction are securely stored using the advanced encryption standard.
The Tennessee Secretary of State has promulgated an interim set of regulations for the procedures to be followed when implementing the provisions of the new statute. The regulations can be found at https:// publications.tnsosfiles.com/rul es/1360/1360-07/1360-07-03.20190415. pdf . Under the new law, “a notary public who is has been properly commissioned to conduct online notarizations may complete authorization notarial acts by means of an electronic interactive twoway audio and video communication that meets the following requirements. An online notarization may not be performed by an individual who has not been commissioned as an online notary public by the Department of State.” Under these new regulations, a previously commissioned notary public must submit an application for commissioning as an online notary public to the Secretary of State, Division of Business Services. The regulations set forth the information that is to be contained on an application. The Secretary of State will then review the application, and if the applicant meets the qualifications for the commission, the Secretary of State will issue the applicant an online notary public identification number, which is to be used in performing an online notarial act and in communication with the Secretary of State.
In order to accomplish all this, you must contract with an appropriate third-party vendor (even before applying to become an online notary). That vendor, with whom you must have a contract, must be able to (1) provide you with the technology to be used in electronically attaching a notarial certificate signature and seal; (2) provide you with the technology to be used for proofing and credential analysis; and (3) provide the technology to store and maintain a record of the video and audio conference of the online notary sessions, if applicable. Doesn’t all this sound really hi-tech? We think this new twist on the notary public laws is interesting and exciting. However, we predict that, as with all new technology, there will be many, many hiccups and glitches. We will enjoy watching those as well. Of course, Bill hopes that these hiccups and glitches will provide him an opportunity to recruit new clients and get more business that grows out of the mess-ups.
In order to properly perform an online notary verification, the online notary has to: 1. Verify that the signer appears before the online notary at the time of notarization, but that appearance may be by means of an electronic two-way audio and video communication. 2. The notary must be physically located within this State. 3. The signer must demonstrate that the signer is not under duress and is not being coerced. 4. The online notary must verify the identity of the signer at the time of the signature by either a remote presentation of an I.D. card or go through an extensive credential analysis as set forth under the regulations. 5. The online notary must attach a “unique” electronic notarial certificate that cannot be altered.
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DICTA
October 2019
WELL READ By: Ann Short The Bosch Law Firm
DOING JUSTICE: A PROSECUTOR’S THOUGHTS ON CRIME, PUNISHMENT, AND THE RULE OF LAW BY PREET BHARARA Over the past 31 months, a slew of political “tell-all” books has been published. I read none of them. Then Preet Bharara’s book, Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law, showed up in my social media feed. The book’s theme seemed to be above the current crass political fray, so I purchased a copy. Although he is not a familiar figure to many, everything changed on March 11, 2017, when Preet Bharara, who had served as the U.S. Attorney for the Southern District of New York for seven years, was fired after he refused to follow Attorney General Sessions’ request for all remaining U.S. Attorneys appointed during President Obama’s presidency to resign and after he refused to return a phone call from Donald Trump. He has since described the unreturned phone call as “one of the best decisions [he] ever made.” Preet’s background is fascinating. He was born in 1968 in Punjab, India, to a Sikh father and Hindu mother. His parents immigrated to the United States in 1970 when he was two years old. He grew up in a New Jersey suburb; graduated with a B.A. from Harvard College in 1990; and received his law degree from Columbia Law School in 1993. After a few stints in private practice and after serving as chief counsel to Senator Chuck Schumer, he became an Assistant U.S. Attorney in Manhattan. Bharara was then nominated to become U.S. Attorney for the Southern District of New York by President Obama on May 15, 2009, and was unanimously confirmed by the U.S. Senate. As a personal aside, Preet has two successful podcasts: “Stay Tuned with Preet” and “Cafe Insider.” I listen frequently and am always amazed that the gentleman has no northern accent, certainly nothing that could tag him as having grown up in “Joisey.” In terms of recommending “Doing Justice,” I offer that what could have been just a series of “war stories” is so much more. Many portions resonated with me, but let me share the following from the book’s preface: Smart laws do not assure justice any more than a good recipe guarantees a delicious meal. The law is merely an instrument, and without the involvement of human hands it is as lifeless and uninspiring as a violin kept in its case. The law cannot compel us to love each other or respect each other. It cannot cancel hate or conquer evil; teach grace or extinguish apathy. Every day, the law’s best aims are carried out, for good or ill, by human beings. Justice is served, or thwarted, by human beings. Mercy is bestowed, or refused, by human beings.
contributions to “doing justice,” even when they did not prevail in court. One of my favorite character tells is self-effacing humor, and Preet does not disappoint. He describes coming home with a flattering New York Times article about his office’s successful prosecution of a hedge-fund billionaire. He asked his ten-year-old daughter to read the piece, thinking that it might make her proud of him. The last line of the article quotes Preet bemoaning rampant insider trading: “I wish I could say we were just about finished but sadly we are not.” His daughter’s only comment, “Daddy, why are you such a drama queen?” The book is divided into four parts: (1) “Inquiry,” the nuts and bolts of a criminal investigation; (2) “Accusation,” learning when to prosecute and when to walk away; (3) “Judgment,” looking at the role of judges; and (4) “Punishment,” how to ensure sentencing and incarceration are fair and just. Preet’s respect for the life-altering consequences of the “accusation phase” of doing justice should resonate with all of us. He writes that making a just decision must recognize that accusations are “specific, stark, and public.” To charge a human being with a crime is to shatter that person’s life. It is also to upend the lives of those close to that person. A criminal defendant, even if acquitted or cleared on appeal, will never be the same again. It is not enough to receive, eventually, a fair trial in a court of law; by then, one may be ostracized, bankrupt, unemployed, or unemployable. And so the decision to charge in the first place must be as just and fair as possible. Some reviewers have criticized Preet’s book as a little too preachy/ teachy. I disagree. It is aspirational, in an old-soul kind of way, written by an attorney who has spent his career in the civil and criminal-law trenches, which is not always the norm for U.S. Attorneys. The final chapters of the book, addressing punishment, are particularly thoughtful and an altogether fitting conclusion to “Doing Justice.” He traces his office’s yet unfinished efforts to abate the entrenched violence at Rikers Island – what Preet describes as a “broken hellhole.” Those efforts drive him to believe that there is a moral reason to care about the state of correctional institutions -- for the prosecutor “to care about the prisoner.”
The law is an amazing tool, but is has limits. Good people, on the other hand, don’t have limits. The law is not in the business of forgiveness or redemption. The law cannot compel us to love each other or respect each other. It cannot cancel hate or conquer evil; teach grace or extinguish passions. The law cannot achieve these things, not by itself. It takes people – brave and strong and extraordinary people.
Preet returns to this theme time and time again in the book: “The law doesn’t do justice. People do.” The book is written in an accessible, conversational style. The writing is also generous, by which I mean that Preet introduces the reader to a cadre of hard-working individuals, and he proudly describes their October 2019
He concludes as he began,
DICTA
Well said. Well said, indeed.
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YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris Lincoln Memorial University Duncan School of Law
BREATHLESSLY SEEKING BREXIT If you wish to see the United States Constitution, all you need do is travel to the National Archives in Washington, DC. There, beneath thick glass, encased in argon, is the original signed document. You can read the words. You can see the signatures of George Washington, Benjamin Franklin, and, of course, James Madison. You can, if you look too long or too closely, prompt the same reaction I did from the security guards: “Sir, please step away from the Constitution.’ I must admit that I was a little embarrassed. I didn’t help the situation by asking about security arrangements – how do we protect the most important piece of vellum (not paper) in our nation? The guard gave me a hard stare. “We’re not at liberty to discuss that, sir.” Fortunately, I already knew about the security arrangements, from a previous, pre-9/11, visit. Each night, the guard turns a key in the Constitution’s brass display case. The document is then lowered, James Bond-style, down a long shaft and into a steel vault with blast doors designed to withstand a nuclear explosion. After the holocaust, the cockroaches will know how to govern themselves. All kidding aside, our prominent display of our fundamental law, and the great effort we make to protect it, attest to the document’s importance. They also remind us that our Constitution, including the twenty-seven amendments, are physical objects. They are written down. You can not only read them, you can touch them. Well, not exactly. To my knowledge, the last person to touch the original seven articles is Kitty Nicholson, a conservator at the National Archives, who briefly touched the document with her bare hands during its transfer to its current encasement. I interviewed Kitty some years back on my public radio show. I made a point of shaking her hand, so I am only one degree removed from touching the Constitution myself. If you shake my hand, you’ll only be two degrees removed. I’m way cooler than Kevin Bacon. Our British cousins, from whom we get most of our constitutional heritage, can make no such claim. The British Constitution is often said to be “unwritten.” That’s an overstatement. There are a number of documents, including Magna Carta and the English Bill of Rights, which make up the UK’s fundamental law. There are also other statutes, court decisions, and even unwritten customs, which, together, comprise a rather amorphous legal construct. So there’s no one place you can go to see the British Constitution. More importantly, there is no one document you can cite to argue about how it should be interpreted. That’s always been an issue, as I’ve discussed many times with William Walton of the University of Hertfordshire, my go-to guy on all things British. But now it is, perhaps, even more of an issue, because the British Constitution may soon come apart. I’m referring of course, to Brexit, which, one way or another, has significant constitutional implications. As William and I have
discussed many times on my show, the UK has, over the past few decades, integrated itself so fully into the European Union that, to a great extent, it has given up its national sovereignty in exchange for membership in a supranational government. The benefits have been immense – in trade, mostly – but so have been the costs. Many Britons feel that they have not personally gained from EU membership, and some believe that they have been harmed. They decry the loss of control over important issues, especially immigration. They fear a loss of national identity. And so, in 2016, the British people did an extraordinary thing: they decided, through a national referendum, to amend the British Constitution. That’s right – they amended their constitution through a popular vote. They have no Article 5 to guide them. They just took a straw poll. And by the barest of margins, the British people decreed: No more shared sovereignty. No more unrestricted migration. No more free trade. They would restore the glory of the British lion and go their own way. Well, maybe. The referendum was a bit vague. What would Brexit look like? What would happen to international trade? What about Scotland, which wanted to remain in the EU? What about Ireland, which will remain in the EU, and which has only recently dismantled the hard border between itself and Northern Ireland, which will leave? After throwing the Brexit bomb into British politics, Tory Prime Minister David Cameron resigned. For most of the past three years, his successor, Theresa May, has tried, and failed, to reach a deal with the EU that is acceptable to Parliament. She resigned. Bushyheaded Brexiteer Boris Johnson has replaced her, vowing to leave the EU on October 31, with or without a deal, “do or die.” Thus far, it’s been more die than do. By the time you read this, things will likely have changed, but, as of early September, 2019, uncertainty reigns. Johnson has suspended Parliament using an ancient device, the Royal Prerogative, for which he had to get the Queen’s assent. There was some hope among Johnson’s opponents that the Queen would deny Johnson’s request, but her constitutional role is largely ceremonial, and she went along. Not to be outdone, Parliament passed, before the suspension began, a law forbidding a “no-deal” Brexit. It has also refused Johnson’s request for a new election. Lawsuits have been filed, but, thus far, the British courts have offered little guidance and no resolution. Would a written constitution like ours, embodied in a single document, help? I think so. Certainly, our system is not perfect. We suffer from much the same political gridlock our British cousins face. However, our Constitution, and our strong judicial review, provide a more certain framework than unwritten customs that can be changed by parliamentary whim, or by a popular referendum.
Stay tuned.
Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. 26
DICTA
October 2019
LONG WINDED By:
Jason H. Long London Amburn
NOTHING FUNNY ABOUT PURPLE CAULIFLOWER Here is the problem. Sometimes, I write these columns and the words fly off the keyboard with ease. At those times, I can crank out one of these columns in less than an hour. People email me with comments about those articles and I feel like the “King of the World.” (A little praise goes a long way with me). Then, there are the other times: when the words just won’t come; I have difficulty expressing my thoughts, and writing this column becomes a dreary grind. The hours tick away, as my mind drifts to work I need to be doing for my clients, and I resent DICTA and everything for which it stands. Usually, the difference-maker between these two scenarios is whether or not I have a well-formed idea in my head before I start writing. If I have a good concept and can flush out a simple outline, everything goes swimmingly. Otherwise, not so much. The rub lies in the fact that I do not always know, until I start writing, whether I have a well-formed idea in my head. Sometimes, I get two or three paragraphs in and realize I have a problem. Take, for instance, today’s column. I was sitting at the Supreme Court Dinner last week, enjoying the camaraderie of my fellow attorneys, honoring our judiciary, and generally having a grand evening. Dinner that night was your standard conference meeting fare: a wilted salad, dried chicken with an unidentifiable cream sauce, bland potatoes, vegetable medley, a basket of rolls (with little individual pats of butter), and a slice of cheesecake, preset on the table to entice/distract attendees throughout the meal. For me, the highlights of these meals are always the dinner rolls and the cheesecake. The dinner rolls are a bit tricky. One pat of butter is never sufficient for me and I have to find a way to get two pats without attracting the judgmental glares of my tablemates. The cheesecake is much easier, although invariably I have to endure comments from others about how they can’t finish an entire slice or that they will have to “pay” for eating that slice by working out extra hard in the morning. I get it folks. You are all health freaks and I’m the glutton. I accept that. Just let me eat my caramel coated cheesecake in peace. I digress. Dinner rolls and cheesecake notwithstanding, the interesting part of this particular dinner was the vegetable medley, which included steamed broccoli and cauliflower (hold on, I promise it gets more exciting). The cauliflower was . . . multicolored (Boom – just blew your mind). My serving included pieces that were the traditional white, as well as yellow and purple cauliflower. There was discussion at our table concerning the purple cauliflower in particular. It raised limitless questions: Does cauliflower grow purple organically? If not, did the chef elect to add food coloring to the cauliflower? If so, why would the chef add food coloring? Why on earth would he/she choose purple food coloring? It was the perfect ice breaker moment for the table, as we discussed the intricacies of purple cauliflower and we grew closer as a group. At one point, one of the people at my table leaned over and suggested that I should write my next column about the purple cauliflower. October 2019
I get these suggestions all of the time. Some work and some don’t. Tom Ramsey once suggested that I write a column about the uncommonly hot summer we were having – brilliant. One unnamed friend suggested, on another occasion, that I write a column about getting my feet sunburned – a little less than brilliant. Maybe it was the euphoric mood of the table, maybe it was the wine at dinner, or maybe it was the 15 minutes our table spent dissecting purple cauliflower, but it sounded like a good idea at the time. Mission accomplished. I had a strong idea for a column in my head and I could wait until my deadline to rip off one thousand words on the absurdity of purple cauliflower. No problem. Except, there was a problem. There is nothing remotely interesting to say about purple cauliflower out of context. Once you get past the shock of seeing it on your plate at dinner, and you make the obligatory comments about it to your dinner partners, there is really nowhere to go. Plus, to the extent purple cauliflower can be funny or interesting, it is really a visual humor. The uniqueness of purple cauliflower does not translate well to paper and the written word is limited in its ability to describe the wonder and magic that is purple cauliflower. The great idea in theory began to fall flat in practice. So, once again, I am left with an article that has no real direction. I struggle with writer’s block and the frustration of trying to produce something worthy of reading. My problem is compounded by the recent struggles of Jeremy Pruitt and the Tennessee Volunteers. Usually, in the fall, the Volunteers are good for at least one article. Even if they aren’t winning at the clip to which we have historically become accustomed, there is always something of interest going on around the program and a Knoxville audience is usually eager to digest any information or take on the program, no matter how minute or absurd. However, as I write this particular article, our beloved Vols are 0-2, having suffered home losses to Georgia State and BYU. The first was to a team that has only been in existence for 11 years; the Vols were a 25-point favorite in the contest. The second loss was to a much better team but was suffered in a much more agonizing way. With 17 seconds left in the game, Tennessee was a 97% favorite to win, right up to the moment that BYU completed a 60yard pass on third and long, kicked a game-tying field goal, and won in double overtime. The schedule does not get any easier from here and the Vols have a very real chance of winning only two games this year, which would mark a low point in the 48 years I have been alive as a Vols fan. Needless to say, there is not much humor to be had there. So what is the takeaway here? Is it that purple cauliflower is funnier in theory than in practice? Could it be that the Vol fans are in for a grim season? Perhaps it is simply that you, the reader, have wasted the last 5 minutes of your life, for which I apologize. I leave it to you to decide for yourself, I am going to start looking for a new, and funnier topic.
DICTA
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L E G A L LY W E I R D By: Lisa J. Hall Hodges, Doughty & Carson, PLLC
TOP TEN LIST Harry: Right now everything is great, everyone is happy, everyone is in love and that’s wonderful. But you gotta know that sooner or later you’re gonna be screaming at each other about who’s gonna get this dish. This eight dollar dish will cost you a thousand dollars in phone calls to the legal firm of That’s Mine, This Is Yours…Please, Jess, Marie. Do me a favor, for your own good, put your name in your books right now before they get mixed up and you won’t know whose is whose. Because someday, believe it or not, you’ll go 15 rounds over who’s gonna get this coffee table. This stupid, wagon wheel, Roy Rogers, garage sale coffee table. Jess: I thought you liked it? Harry: I was being nice! One of my all-time forever favorite movies is When Harry Met Sally, and when I decided to write this next installment of the esteemed Legally Weird article about the seemingly trivial things divorcing couples choose to fight about in negotiating or trying their divorce cases, of course I remembered this outburst by Harry whose heart was broken by Helen but would ultimately find love in the arms of his best friend Sally, even though men and women cannot be friends. I digress, and I have not even started. I have asked some of our colleagues, local and across the state, for examples of weird items/issues have caused divorce litigants to dig their heels in, and they make the wagon wheel, Roy Rogers garage sale coffee table look like a priceless treasure. Here’s my top ten: (10) A framed piece of artificial turf from Neyland Stadium. – K.O. Herston
(4) I had one where one party complained the other didn’t feed the child properly, resulting in the child always coming back constipated. So she began saving the child’s poop in baggies in the freezer. She was certain that one day she would be able to send them to an expert who could testify that yes indeed, the child was constipated. She had a freezer full of poop. – Sandy Jones Phillips, Jonesborough (3) I observed a case where each parent regularly complained about the clothes the child wore not being sent back with the child, or being sent back dirty. The parenting plan thus required that the child wear the same outfit at every exchange and that the parties were required to pay for one-half of the cost of the whole outfit, down to shoes. The child was not to wear the outfit on days he was not being exchanged. I couldn’t help but wonder how in the world the parents explained this bizarre scenario to the kid. – Lori Fairchild Holyfield, Memphis (2) I had this client who kept arguing with his wife through the attorneys about the fireplace and mantel in the marital home. These people didn’t have much money and I couldn’t understand how much it could really be worth. But we went back and forth for weeks about it. Finally I asked my client if it was a family heirloom or an expensive limestone custom mantel or what? And if so how were they planning on removing it from the house without destroying or damaging it? He said no it was PAINTED on CARDBOARD and it looked like a mantel and fireplace with a raging fire inside. They placed it on the wall during the fall and winter! He showed me a picture literally with their Christmas stockings hanging with thumbtacks in the cardboard! – Lisa Collins Werner (1) I fought over a cowboy and cowgirl silhouette, dog ashes, and the right to celebrate Dale Earnhardt’s birthday (4-29) in the Parenting Plan. – Lucy Carpenter Wright, Chattanooga
(9) Taxidermy. And I’m not talking about high end stuff from some sort of fancy game hunt. – Tasha C. Blakney (8) I had a case in which my client wanted specific condiments from the fridge (like, open ones that were in use). This was in her demand for “emergency” items she wanted pending final divorce. – Julia Spannaus (7) While I was clerking during law school, the firm had a client that insisted we put a section in the MDA about how lottery proceeds would be divvied up..... neither party had won the lottery... – Taylor Rippe, Nashville (6) An antique, stuffed Bengal tiger and miscellaneous stuffed family pets. That same case involved a fight over a tiara both parties claimed used to belong to the Romanov family. “Made in China” was engraved on it. – Jane Ellen Cassell, Nashville (5) Collectibles including Bud Man salt and pepper shakers and California Raisin figures. – Betsy Meadows
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DICTA
October 2019
BENCH AND BAR IN THE NEWS How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to Marsha Watson at mwatson@knoxbar.org. NEW! VETERANS’ SERVICES ADDED TO AREAS OF PRACTICE The Membership Committee recently added Veterans’ Services as a new area of practice. To add Veterans’ Services to your membership record, update your myKBA Profile at www. knoxbar.org.
PARALEGAL ASSOCIATION MEETING The Smoky Mountain Paralegal Association (“SMPA”) will hold its monthly meeting on Thursday, October 10, 2019, at 12:00 p.m. at the Blount Mansion Visitors Center, Knoxville, Tennessee. Benjamin Harkleroad with Avertium (f/k/a) Sword & Sheild) will be presenting on Cyber Security. The presentation will provide 1.0 hour of CLE for paralegals. 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
Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 900 sq ft. Office Space includes a reception area, conference room and work area for additional employees. Very Affordable Rate with a two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 8051911.
OFFICE SPACE AVAILABLE: •
West Knoxville-Bearden Office Space West Knoxville lawyer has office space for rent at 4008 Sutherland Avenue. The rent includes internet, ample parking and common area maintenance. Inquiries: leslieahull@gmail.com.
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McKellar & Easter is seeking an attorney to rent office space in its West Knoxville location. Rent shall include access to the internet, phone lines, a fax line, and copy machines. Additional office space can be provided for a legal assistant or paralegal if necessary. Please email a resume and cover letter to ndm@helpingclients.com
VIEW THE CURRENT LIST OF KBA VETERANS The KBA thanks all of our Veterans for their service and dedication to our country. view the current list of members who have served in the military at www.knoxbar.org/veterans. If your name is not on the flyer and you would like to be added, please contact Jonathan Guess, Membership Coordinator | Database Administrator at jguess@ knoxbar.org by October 7th. An insert is planned in the November DICTA.
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FORGING JUSTICE
Make dollars and sense out of medical records.
ake dollars and sense out of medical records.
Legal Aid of East Tennessee
Celebrates Pro Bono Justice for Those in Need
M.L. Barnes & Associates M.L. Barnes & Associates Certified Legal Nurse Consulting Barnes CertifiedMarnie Legal Nurse Consulting 646.388.1195 mlbarnes73@gmail.com Marnie Barnes 646.388.1195 mlbarnes73@gmail.com October 2019
October 18th 2019 6:00-9:00pm
Ironwood Studios 119 Jennings Ave, Knoxville, TN 37917
For more information contact us at: ForgingJustice@laet.org Tickets Available for $50 through October 1 ($55 starting October 2) https://app.etapestry.com/onlineforms/ LegalAidOfTennessee/2019Forging Justice.html
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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
COME JOIN US FOR A CELEBRATION OF YOUR GREAT WORK! At this year’s Forging Justice, presented by Egerton, McAfee, Armistead & Davis, we will be inducting Lynn Tarpy into the Donald F. Paine Memorial Pro Bono Hall of Fame. In addition, we will be recognizing the Law Students of the UT College of Law Expungement Clinic, attorney Kevin Newton, the Knox County Public Defender’s Community Law Office, and the law firm of Kramer Rayson. Finally, we will be recognizing all our great volunteers who donated at least 25 hours of Pro Bono time to helping Legal Aid of East Tennessee and our clients in 2018. This year’s sponsors (as of 9-8-19) are: Presenting: Egerton, McAfee, Armistead & Davis
Elmore, Stone & Caffey Frantz, McConnell & Seymour Kizer & Black Knox County Public Defender’s Community Law Office LMU Duncan School of Law Paine Tarwater Bickers Ritchie, Dillard, Davies & Johnson Sevier County Bar Association Swafford Insurance Tennessee Bar Association The IT Company Watson, Roach, Batson & Lauderback Thank you to everyone who contributes to LAET’s work and to Forging Justice every year!
Dessert: East Tennessee Foundation Silent Auction: Greg Coleman Law Iron: Hodges, Doughty & Carson Home Federal Bank London & Amburn TCV Trust & Wealth Management
Want to Volunteer? Fill out our new Pro Bono Volunteer Survey: https://www.surveymonkey.com/r/DCTWYFSt
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For Forging Justice Invitation
Titanium: Kramer Rayson Mutual of America Shepherd & Associates University of Tennessee College of Law White & White Copper: Baker Donelson Breeding Henry Baysan Eldridge & Blakney Garza Law Firm High Temperature Tools & Refractory Law Offices of Farmer & Dreiser Luedeka Neely Group Miller & Drozdowski The Myers Law Firm Woolf, McClane, Bright, Allen & Carpenter Aluminum: Bank of Tennessee Bass, Berry & Sims Blount County Bar Association East Tennessee Lawyers Association for Women Elizabeth Meadows, Attorney at Law
Mark Your Calendars: * October 5 (9:00-12:00) – Knoxville Super Saturday Bar / Faith & Justice Clinic at Ball Camp Baptist Church (2412 Ball Camp Byington Rd., Knoxville) * October 9 (12:00-2:00) – Veterans Advice Clinic at the Knox County Public Defender’s Community Law Office * October 18 (6:00-9:00) – Forging Justice Pro Bono Celebration at Ironwood Studios (119 Jennings Ave., Knoxville) * October 26 (9:00-12:00) – Blount County Super Saturday Bar at the Blount County Library (508 N. Cusick St., Maryville) _______________________________________________
* November 2 (9:00-12:00) – Knoxville Saturday Bar at LAET’s Knoxville Office * November 9 (9:30-12:30) – Debt Relief Clinic at the Knox County Public Defender’s Community Law Office * November 13 (12:00-2:00) – Veterans Advice Clinic at the Knox County Public Defender’s Community Law Office * November 16 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County Office * November 19 (3:00-6:00) – Faith & Justice Advice Clinic at Arnstein Jewish Community Center (6800 Deane Hill Dr.)
The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902 phone (865) 637-0484 e-mail:kellis@laet.org fax (865) 525-1162
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DICTA
October 2019
Q: A:
THE LAST WORD By:
Jack H. (Nick) McCall
Judge McMillan and Summer, you’ve had kind of an unusual “beach trip” to the Caribbean. How did you get to experience the adventures of iguana banding with a science team in the Turks and Caicos Islands? THE HONORABLE GREGORY S. MCMILLAN, KNOX COUNTY CIRCUIT COURT JUDGE, DIVISION IV, AND SUMMER H. MCMILLAN, LAW CLERK TO THE HONORABLE SHARON G. LEE, TENNESSEE SUPREME COURT
Greg: When I was a UT undergrad, I became friends with a Ph.D. candidate, Glenn Gerber, whose specialty was reptiles. After he graduated, he took a job with the San Diego Zoo and its Institute for Conservation Research. He studies Caribbean iguanas and, more specifically, works with the Turks and Caicos National Trust in the conservation of the rock iguanas of those islands. About six months a year, he is there to keep a census of the rock iguana population, the ratio of the sexes, population growth, their habitat and predators, etc. The idea is to try to reintroduce iguana populations to areas where they have been destroyed by predation, mostly by domestic cats introduced to the islands in the last thirty years or so. I had visited Glenn once before, catching and banding iguanas. Then, in 2009, shortly after Summer and I got married, he invited us down to visit him around Labor Day in time for collecting and cataloging hatchling iguanas. Q: Are you afraid of iguanas at all?
between 7:30 and 11:00--and later in the evening, when they are more active. During the heat of the day, iguanas hide to avoid the sun. Summer: In between our iguana-searching, we’d swim, snorkel, or hang out on one of the amazing uninhabited beaches that Glenn took us to. It was a great trip, even if hiking through palmetto and mangrove scrub to search for iguanas and their nests was hot, itchy, and not at all glamorous and the boat was not luxurious. I think we had a better time than we would have at a fancy resort because there were no crowds, we had all the beaches we visited to ourselves, and there was something really fabulous about sitting around on the top deck of the boat after a long day in the sun, sipping a cold beverage, and watching the stars and the lights of Grace Bay in the distance. I would do it again anytime. For more on Dr. Gerber and his activities for the Institute for Conservation Research of the San Diego Zoo, see his website at: http:// institute.sandiegozoo.org/glenn-gerber-phd.
Summer: No, I don’t mind lizards or other reptiles. As long as they have feet, I’m okay-that doesn’t bother me at all. Snakes? No. But, I’m not afraid of iguanas. So it was a pretty easy decision when Greg told me Glenn had invited us to go to the Turks and Caicos to participate in the iguana project. We spent our mornings and early evenings hiking around through the mangroves (and mosquitoes!) searching for nests and hatchlings. When we finally found a new hatchling, I got to carry the little guy to and from the boat in a big burlap bag and put him back in his nest after Glenn measured and marked him for identification. [See photo.] I would not be brave about catching the larger iguanas, though, because they might take a finger off!
Greg: No, they can’t take your fingers off….
Summer: Well, they do bite….
Greg: If you aren’t careful, they will latch onto you, and they won’t let go until they decide to or until you submerge them underwater--then, they’ll let go, eventually. Living on a boat, in the middle of a cut between the north end of Providenciales and Little Water Cay, where Glenn’s research stations are located, is really pretty nice. Summer: From the boat, we could look out over Grace Bay in the distance and see all the luxurious resorts. But there was nothing luxurious on the boat. There was no hot water, no shower—just a little handle in the bathroom, or a hose on the back deck. We had to sleep with a big Rubbermaid bowl in our bed because it rains there every night and the roof leaked in our cabin. I told Greg he could never call me “highmaintenance” again. Greg: Since iguanas are not warm-blooded, they depend on the sun for regulating their body heat. You try to go out early in the day--
“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 2019 DICTA 31
Prsrt Std US POSTAGE
PAID
KNOXVILLE, TN PERMIT NO. 3 0 9
P.O. Box 2027 Knoxville, TN 37901
APPRECIATION CELEBRATION
Thank you for being a loyal KBA member! Come out and enjoy great music & great company! The KBA and Knoxville Barristers are pulling out all of the stops for our Member Appreciation + Welcome New Lawyers Celebration from 5-8 p.m. on Thursday, October 24 at Schulz Bräu Brewing Company located at 126 Bernard Ave. This event has been planned as our way to say thank you! It's also a great opportunity for members to welcome all of the new lawyers who passed the July 2019 bar exam. Join us for a fun evening celebrating our members and congratulate our newest members as they begin their legal career. A free drink ticket will be provided to each KBA member. Reservations are appreciated.
EVENT PARTNER:
LIVE MUSIC Featuring: Roman Reese Musician, Lawyer, Veteran, Father
To register, go to the event calendar at www.knoxbar.org and click on October 24. Questions? Call the KBA at 865-522-6522.