DICTA. October 2021 by Knoxville Bar Association

Practice Tips: In the Best Interest of the Child . . . Page 9 Schooled in Ethics: Tennessee’s New Advertising and Solicitation Rules . . . Page 19

A Monthly Publication of the Knoxville Bar Association | October 2021

NAME AND IMAGE AND LIKENESS. OH MY! TENNESSEE LEGISLATION AND NCAA RULES FOR STUDENT-ATHLETES IN THE NEW ERA OF COLLEGE SPORTS

DICTA

October 2021

In This Issue

Officers of the Knoxville Bar Association

October 2021

COVER STORY 16

President Cheryl G. Rice

President Elect Jason H. Long

Treasurer Loretta G. Cravens

Secretary Catherine E. Shuck

Immediate Past President Hanson R. Tipton

KBA Board of Governors Sherri DeCosta Alley Mark A. Castleberry Meagan Collver Jonathan D. Cooper

Daniel L. Ellis Elizabeth B. Ford Rachel P. Hurt Allison Jackson Eric M. Lutton

Michael J. Stanuszek Amanda Tonkin Elizabeth Towe Carlos A. Yunsan

The Knoxville Bar Association Staff

Name and Image and Likeness. Oh My! Tennessee Legislation and NCAA Rules for StudentAthletes in the New Era of College Sports

CRITICAL FOCUS 5

President’s Message

Practice Tips

Do You Remember?

In the Best Interest of the Child

Management Counsel

Hesitancy: To Mandate or Not

Legal Update

Do Mask Mandates Infringe on Religious Freedom? The Sixth Circuit Says No.

Tennessee’s New Advertising and Solicitation Rules

Schooled in Ethics

WISDOM 6

What I Learned About Inclusion and Why It Matters

Around the Bar

Marsha S. Watson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Jonathan Guess Chandler Fletcher Database Administrator Programs & Communications Coordinator

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

Jeanie Matthews LRIS Assistant

Dicta 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).

Recognizing Distinguished Attorneys and Awarding Grants for Our Community

Inside a Song

11 18

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 Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho

Matthew R. Lyon Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Eddy Smith Elizabeth Towe

Managing Editor Marsha Watson KBA Executive Director

Outside Your Office Window Hello My Name Is Courtney (CJ) Statham

Boat Builders Once a Marine

Legal Myth Breakers

Both Sides Now– It’s All About Perspective

Boo at the Bijou

23 24

Volume 49, Issue 9

Words Matter – Join the Conversation

Urban Legends Well Read

Raising White Kids

Bill & Phil Gadgets

It’s Travel Time: Apps and Websites That Will Help You On Your Way

Not About Abortion

27 29

Your Monthly Constitutional Long Winded

This Date in History

Tell Me A Story

Changing The World: One Opportunity, One Relationship at a Time

COMMON GROUND 4 20 28 28 30

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

DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. October 2021

DICTA

SECTION NOTICES & EVENT CALENDAR

Section Notices

There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 522-6522. Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Section for the upcoming CLE program “Mediation: Practice & Ethics Update 2021” featuring Chad Hatmaker on December 16. If you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777) or Daryl Fansler (546-8030). Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. The next Pro Bono Debt Relief Clinic will be held virtually on October 2 and volunteer registration is available at www.knoxbar.org. Save the date for the annual CLE program “Bankruptcy Case Law Update 2021” scheduled for December 14. If you have a program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Marcia Kilby (362-1391) or 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. Save the date for the annual CLE program “Criminal Law Rowdy Roundup 2021” scheduled for November 17. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to inhouse and government attorneys. Join the Employment Law Section for the upcoming CLE program “Employment Law Update 2021” on October 14. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) or Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics and provides the opportunity to discuss issues relevant to family law practice. Join the Family Law Section for the upcoming CLE programs “Alimony Then and Now” on October 5 and “Tennessee Family Law Update 2021” on December 7. 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 Lawyers Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Hon. Suzanne Bauknight (545-4284) or Ron Mills (215-2050). Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. Join the Juvenile Court & Child Justice Section for the upcoming CLE program “Case Law Review” featuring Doug Dimond on November 2. 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 2019 will automatically be opted-in to the section. If you would like to get involved in planning Section activities, please contact Section Chairs Campbell Cox (330-2577) or Mary Newton (224-6591). Senior Section Please join the Senior Section for the upcoming program “East Tennessee Veterans Memorial: A Pictorial History of the Names on the Wall, Their Service, and Their Sacrifice” on November 3. The luncheon will be held at Calhoun’s on the River from 11:30 a.m. to 1:00 p.m. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307). Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. Join the Solo Practitioner & Small Firm Section for the upcoming CLE program “Now is the Time: Succession Planning for Solo and Small Firms” on October 26. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963), Mary Miller (934-4000) or Tim Grandchamp (524-1873).

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event calendar n n n n n n n n n n n n n n n n n n n

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October 1 5 5 7 8 12 13 13 13 14 14 15 19 20 22 25 26 28

Government Section CLE Law Office Tech Committee Membership Committee Family Law CLE Diversity CLE & Reception Nominating Committee Professionalism Committee Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Meeting Judicial Committee Employment Law CLE Difficult Conversation Program New Lawyers Section Reception Board of Governors Real Estate CLE Charity Golf Tournament Solo Small Firm CLE Publications Committee

November 2 2 3 5 9 9 9 10 10 10 11 12 17 17 19 30

LRIS Committee Law Office Tech Committee Senior Section Luncheon Judge’s Ain’t Behavin’ CLE Election Law CLE Professionalism Committee Access to Justice Committee Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Meeting Judicial Committee Memorial Service Criminal Law CLE Board of Governors Juvenile Court CLE CLE Committee Meeting

Check the KBA Events Calendar at www.knoxbar.org for scheduling updates. October 2021

PRESIDENT’S MESSAGE By: Cheryl G. Rice

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

DO YOU REMEMBER? Fall is here! It’s my favorite time of the year. The weather is cooler, the colors are beginning to show in the mountains, and it’s football time in Tennessee. I look forward to fall each year, and especially to October, the month where fall activities are underway, but the holidays are far enough in the future that I look forward to them without yet planning, scheduling, and (yes, sometimes) stressing about the busy-ness they bring to the last part of each year. In October, I soak up the season and all that comes with it, and each year it is fresh, crisp, and new. October also brings us bar results and newly minted lawyers. Though the exam has changed over the years in content, format, and manner of delivery, and the results come sooner now thanks to advances in technology, for me one of the most exciting parts of each October is welcoming those new admittees to our profession and to our bar. Each year, I think back to my own experiences and the pride I felt upon joining this profession. Do you remember that feeling of waiting for your bar exam results? I sure do. Some of you may know that I went to law school and was first admitted to practice in Virginia. At that time, every bar applicant traveled to a single location in July to sit for the 2-day Virginia Bar Examination, where the dress code for participation in the exam was courtroom attire: a suit or coat and tie for men, a dress or skirt and blazer for women. (Note: Virginia maintains this process, including the dress code, for exam-takers today.) The summer that I graduated from law school, a law school classmate and I made the 4-hour drive to the exam location together, and we shared a hotel room for the duration of the test. She and I both felt good about our performance overall, but we couldn’t be sure—you never really know—so I anxiously anticipated my results. I had started my first full-time legal position immediately after taking the July bar, taken a week off to get married and go on a honeymoon with Bill, and was diving in to learning all the many things new lawyers need to know despite having just spent three years in law school. Of course, at that time, bar results were received by good, old-fashioned U.S. mail. And, because the exam was in part in essay format, which was manually graded, it also took a bit longer for results to be ready. I don’t think there’s ever been a more anticipated and at the same time dreaded moment of my life—all those months of studying and weeks of waiting to find out whether the last three years of effort would prove worthy. The Board of Bar Examiners typically released July bar exam results in early November. So, starting about November 1, each evening upon arriving home from work I checked our mailbox with equal parts unease and excitement. In addition to providing applicants their bar results by letter, they were also posted publicly at the Court, in Richmond, and each fall, the Richmond Times-Dispatch—the state’s largest paper by circulation—would dedicate a full page of the issue immediately following the release of the bar results to listing by full name those who succeeded in passing the test for all the world to see. Cautiously optimistic, I October 2021

awaited my letter’s arrival, fully aware that my parents and many family friends would also be checking their copy of the Times-Dispatch for the results. However unbeknownst to me, my husband, Bill, knowing that his new bride would not rest easy until the results were in hand, took it upon himself to ease my mind. In early November of that year, he began calling the Times-Dispatch daily, and on the day the bar results were released, he spoke to an employee of the paper who kindly took the time to confirm that my name was among the listing of those who had passed. He then left work early to meet me at my office and broke the good news to me. Soon afterward, my formal notification arrived. Then began the process of becoming a “real” lawyer: being sworn in, introductions to judges, court clerks and lawyers, and seeing my name added to the firm’s letterhead. I was proud, and humbled--as I had already realized I had a lot still to learn. I looked up to the lawyers and judges in my community, as did those around me. I still recall thoughtful and subtle lessons I received from lawyers in my firm and other members of the bar, even, on some occasions, from opposing counsel. These moments of mentoring reinforced my conviction that I had joined an honorable profession with serious duties of competency, responsibility, and integrity. Can you remember your season of waiting for bar results? Do you still recall your early experiences as a new lawyer? This rite of passage is one I suspect each of us recollects well, and it, like many other aspects of our profession, is one of many experiences that helps to bond each of us with those lawyers who came before us and those who join the bar after us. I consider myself fortunate to practice law in this community among lawyers with the high levels of professionalism and congeniality we enjoy here in Knoxville. I know I am not alone in this sentiment— the Knoxville bar wears its reputation for reflecting both qualities proudly. As we welcome newly admitted lawyers into our community this fall, let’s indoctrinate them, not just into Tennessee football and the other rituals of fall in the Smokies, but also into the traditions of our chosen profession and the character that makes our bar unique. Give a warm welcome to the new lawyers you encounter at the courthouse and in meetings. Let’s encourage them to become engaged in our community by bringing them along to a Barristers’ event or a KBA committee meeting (in person or virtually) and look for opportunities to pay forward the mentoring and congenial professionalism the Knoxville legal community is known for across Tennessee. Doing so, we help the newest among us to feel a part of this thing that is bigger than each of us, reaffirming their decision to pursue a career in the law. An easy place to start is by registering to attend the KBA’s New Admittees Reception on Tuesday, October 19th at the Square Room and checking the KBA’s website (www.knoxbar.org) for other opportunities to serve, learn and socialize with the newest members of our legal community. We are carefully considering all efforts to make in-person gatherings safe for our members. I hope to see you there!

DICTA

W H AT I L E A R N E D A B O U T I N C LU S I O N A N D W H Y I T M AT T E R S By: Brooklyn Sawyers Belk Safety and Litigation Counsel, Lyft, Inc. Visiting Professor, University of Tennessee College of Law

WORDS MATTER – JOIN THE CONVERSATION The U.S. Supreme Court’s (USSC) words in two historic cases illuminate America’s history with race that influenced today’s race relations. Achieving successful race relations starts with addressing that history and moving forward. Words matter: Join the conversation! The slave trade brought millions of Africans to the U.S. to be bought and sold as chattel—reducing humans to merchandise in slave traders’ eyes. Those who challenged a system as “American as apple pie” suffered. In Dred Scott v. Sandford, 60 U.S. 393 (1857), the USSC held that slaves’ descendants could not be citizens. The Court explained, “In no nation was this opinion more firmly fixed or more uniformly acted upon than by the [English], who seized them on [Africa’s coast and sold or held them] in slavery for their own use, but [also] took them as ordinary articles of merchandise to every country where [profit could be made].” The USSC added, “The opinion entertained and acted upon in England was naturally impressed upon the colonies they founded.” The Court explained that, Africans “had for more than a century been regarded as beings of an inferior order, and altogether unfit to associate with the white race,” “so far inferior that they had no rights which the white man was bound to respect,” and that “the negro might justly and lawfully be reduced to slavery for his benefit.” The Court added, “And, accordingly, a [negro] was regarded by them as an article of property,” and “[held, bought, and sold] as such, in [all] thirteen colonies . . . No one seems to have doubted the correctness of the prevailing opinion of the time.” In 1861, America engaged in a great civil war, in part, over slavery and intertwined economics. In 1863, the Emancipation Proclamation ended slavery in rebellious states, followed by three Constitutional Amendments. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment granted former slaves’ citizenship and created certain equal protections. The Fifteenth Amendment granted voting rights and prohibited states from disenfranchising voters. If the Scott Court was wrong, but the post-Civil War Constitutional Amendments course corrected, explain the Plessy decision. Is it inexplicable accentuating the law’s corrective inabilities at the time? In Plessy v. Ferguson, 163 U.S. 537 (1896), the Court found separate, but equal railway cars constitutional, and while the Fourteenth Amendment established legal racial equality, separate treatment did not imply African American inferiority. The Court reasoned that the statutes implied legal distinctions between the races–distinctions founded in skin color and that “must always exist so long as white men are distinguished from the other race by color.” Other case quotes include, “If the races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary

consent of individuals;” “Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences;” and, “If one race be inferior to the other socially, the Constitution cannot put them upon the same plane.” The dissenter argued that the Constitution is color-blind, the U.S. has no class system, and all citizens should have equal access to civil rights. While novel for the time, someone’s words differed, and words matter! Plessy’s rhetoric is offensive—creating the separate, but unequal doctrine ensuring Jim Crow segregation—inapposite the nation’s Constitutional equality guarantees. Despite these Constitutional advancements, Jim Crow era provisions allowed race-based atrocities— including murder—to persist for almost another century, which is longer than most individual lifetimes. Eventually, USSC civil rights decisions, including Brown v. Board of Education, 347 U.S. 483 (1954) and the 1960s Civil Rights and Voting Rights Acts brought change. Why did it take almost a century to enforce the Constitution? Perhaps, the USSC answered that question in Scott and Plessy, making these dated decisions relevant. In Christianity, there are generational curses and blessings—things passed down generationally. From England to the colonies and, once in the colonies, race-based division became something engrained, fixed, and acted upon uniformly. Did that disappear with time or laws; or rather, was race-based division passed down further, even to today? Words matter! If alive, Emmett Till’s mother might explain that Till, her child on vacation in Mississippi, allegedly—the accuser recanted— violated a Jim Crow practice, and a person’s false accusations led to Till’s murder. His murderers gouged out his eye, beat, shot, and threw him into the Tallahatchie River, with a cotton gin fan attached as a weight. Till’s mother had an open casket funeral. Thereafter, Jet Magazine published photos of Till’s body, a Jim Crow brutality. Yet, the jury deliberated for under an hour returning an acquittal. If still too dated, consider the 2000 Alabama Interracial Marriage Amendment to amend Alabama’s 1901 Constitution’s interracial marriage prohibition. Yet, it only passed with around a 60 percent approval—to remove a Jim Crow era law contrary to the USSC’s Loving v. Virginia, 388 U.S. 1 (1967) precedent. Born in 1908, 1913, and 1955, my prior two generations spanned Jim Crow—a Plessy-mindset world. Born post-Brown, my mother still attended segregated schools—the USSC’s “all deliberate speed” integration forced her from segregated to integrated schools, and the associated trauma infected her education, self-esteem, and worldview until she died carrying that pain.

DICTA

October 2021

Create an equal playing field. Question things that are non-sensical. If your workplace is non-diverse, change it. Ask questions that include inclusion principles, retention details, and recruiting specfics. Recruiting is often employee referral based, which is flawed when the employees have non-diverse networks and, therefore, the hiring process excludes diverse candidates. Create a diverse network and referral sources. Remove systemic barriers to achieve a diverse, inclusive, equitable workplace. Challenge stereotypes. Why do you define professionalism the way that you do? Why do you set the professional standard for everyone? Do you clutch your purse or change sides of the street when you pass certain people? When you see news coverage of a confrontation involving minority and non-minority people, do you automatically associate the minorities with criminality? Soul search and identify and challenge stereotypes. Educate yourself. Resources are everywhere, just look. I have resources that I will share. Do not blame others. “I did not own slaves.” “I am not privileged.” “I do not see color.” “We value diversity but will not lower the bar” (assuming diverse candidate inferiority). These statements miss the mark. Take individual responsibility as a change agent.

Listen. Listen to diverse perspectives. The impacted individual is best positioned to explain her life experience. Accept her experience as her truth regardless of your agreement or understanding. See something, say something. Silence is complicity. The conversation will change if we speak up because words matter. Say—“I do not think that man is a thug,” “I will not tolerate racial slur use even when a person the slur is meant to offend is absent,” “The ‘N word,’ when used as a racial slur, should offend everyone even when people of color are absent, as the ‘B word’ should offend men when women are absent.” Stand up for decency. Build authentic relationships. You do this the same way with diverse and non-diverse people: genuine and organic, curious and nonjudgmental, over shared interests and community, open to learn and love, October 2021

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.

Legacy. After people are in my presence, I want them to feel blessed. I do not want anyone to get to the end of life, and feel like I hurt them. I want to be the hero or at least a positive—a Brown, and not a Plessy. The focus is impact—not intent.

DICTA

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

Self-examination. Read these cases, ask yourself whether race divides, and, if so, resolve to change that. The past impacts the present, and perhaps implicitly influences our day-to-day interactions. Are we doing enough to broaden our mindsets and experience others? Look at your photos. Do the photos reflect any diversity? Photos capture weddings, graduations, anniversaries reflecting our intimate relationships. If the photos reflect a monochromatic group of people, ask why. Then, go out of your way to befriend all types of people. You might have much in common with “others.”

and one-on-one when possible.

Perhaps, your immediate ancestors lived during Jim Crow. Scott highlighted a superior v. inferior mindset that came from England to the colonies. While not there, is it a fair deduction from historical fact that this mindset was passed on to our ancestors as recent as one-to-three generations? If the USSC’s rhetoric is justified as temporally acceptable, does that logic mean our recent ancestors were influenced by the same temporally relevant prevailing views? Could our ancestors-parents and grandparents—lived unaffected by the times? Possible, but probable? Is it farfetched to ask whether the Plessy thinking, through generational passing, influences leaders addressing the race question today? A series of rhetorical questions for your consideration. Perhaps, the USSC words helped set the stage for why society grapples with race and why some choose to make an immutable characteristic—something unchangeable—divisive. The mindset incapsulated by the USSC’s painstaking explanation of people’s hearts and minds is an influential legacy that stings. Has that worldview: us and them, superior and inferior, a chosen race and a marked race—the USSC’s words—helped create a legacy of failed race relations? If so, fix it! Successful race relations start with conversations because words matter. Humans have more in common than different. Many categories used to define people are social constructs that lack real meaning other than to divide. Join the conversation and work to eliminate that divide. Ideas to start follow.

DICTA

October 2021

PRACTICE TIPS By: Katheryn M. Ogle

McDonald, Levy & Taylor, PLLC

IN THE BEST INTEREST OF THE CHILD By definition of the Tennessee Supreme Court Rule 40, a Guardian ad litem is a lawyer appointed by the court to advocate for the best interest of a child and to ensure that the child’s concerns and preferences are effectively advocated. But what does that mean in practice? How does one begin to understand what the concerns and preferences of a child are, especially when many attorneys have no formal training in child development and may have no experience working with children and families? Thankfully, Rule 40 goes on to explain in detail objective factors that relate to representing the best interest of a child, which include basic physical needs, emotional needs, and the child’s need for stability. For me, and for a few other attorneys who serve as Guardians ad litem, we had the good fortune to have been teachers before entering the legal world, so interacting with children comes naturally. In my ten years serving in this role, I’ve also picked up some helpful advice from other attorneys in juvenile court with whom I consulted in writing this article. First and foremost, meet the child for whom you’re advocating in person, on their turf. In contrast to adult clients, most children have no means of transportation to come to their attorney’s office for a meeting, nor do they even have the ability to drive a car to a meeting with their lawyer. I have found that children, especially those in elementary school feel most comfortable meeting with a Guardian ad litem at home or at their school. Ideally, a Guardian ad litem should meet with their client

October 2021

in a few different settings, just to get an idea of where their client is the most comfortable. In a first meeting with a minor client, I would advise not wearing court attire, if possible. Children pick up on small details that adults may not, and while meeting an attorney who is wearing a suit is expected for adult clients, it may be intimidating for a young child. Falling in line with meeting a child client at their school, it is of significant importance to obtain your client’s educational and medical records. A Guardian ad litem’s appointment order from the juvenile court outlines all of the information that a Guardian ad litem is able to access, and I have found that educational professionals who are working with this at-risk child are more than willing to speak with a Guardian ad litem to further advocate for the best interest of a specific child. It’s also important in advocating for a child’s best interest to know if they have an IEP or require any special services at school, and whether their academic needs are being supported at home. Serving as a Guardian ad litem was the reason I became an attorney, and this practice is one that can certainly allow an attorney to be invested in a child’s well-being and future success. Juvenile courts across the state are always looking for willing and competent attorneys to advocate for children who pass through their doors. I encourage all members of the bar to take a Guardian ad litem appointment if they’re able. It will be the most rewarding legal work in which you could ever be involved.

DICTA

AROUND THE BAR By: Charles W. Swanson City of Knoxville Law Director

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. Although the introduction ceremony has been postponed, the Foundation is proud to honor and recognize the following members of the 2021 Class of Fellows:

Penny A. Arning

James E. Bondurant, Jr.

Joshua D. Hedrick

Maha M. Ayesh

R. Kim Burnette

Hillary B. Jones

Joshua M. Ball

James M. Cornelius, Jr.

Greg D. Meadows

Betsy J. Beck

Scott Griswold

Hon. E. Jerome Melson

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 may be chosen for each class. The reputation that each new Fellow holds in our legal community reveals that the Class of 2021 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 East Tennessee Society of Professional Journalists to host a public education session titled “Courtroom Confidential: Inside the Knox County Judicial System” Family Justice Center for development of new legal resource materials to assist victims of domestic violence Florence Crittenton Agency to provide a case manager for low-income adolescents in State Custody Knoxville - Knox County Community Action Committee Office on Aging in support of its Grandparents as Parents Program Knox County Juvenile Court in support of the ASIST program for status offenders Legal Aid of East Tennessee to continue funding the Knoxville Bar Foundation Fellowship for hiring a law student for the Pro Bono Project LMU Duncan School of Law to create a Pro Bono Initiative SEEED Inc. to administer the Career Readiness Program and expose students to the justice system Tennessee Immigrant and Refugee Rights Coalition in support of its Legal Services Clinic Tennessee Innocence Project to help fund law student interns and externs YWCA of Knoxville in support of its Victim Advocacy Program

The total sum of all grants awarded this year is $25,000.00. The Foundation’s goal is to facilitate and support projects and programs that seek to improve the administration of justice, to enhance the public’s understanding of and confidence in the legal system, to support access to the legal system, and to serve the legal profession. Since 1997, the Foundation has awarded grants totaling approximately $510,000.00. Each year the Foundation solicits and receives multiple applications for grants. This year the grant requests totaled $65,500.00. 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 Knoxville Bar Foundation invites everyone to attend the ceremony unveiling the portraits of Judge Bob McGee and Chancellor Mike Moyers on October 13 at 3 pm in the Main Assembly Room of the City County Building. Thanks to the generosity of the Knoxville legal community, these outstanding judges will be appropriately remembered in the courtrooms where they presided for so many years. Friends, family, and colleagues are invited to the brief ceremony and unveiling of the portraits done by Knoxville photographer Rachel Towers Brooks. Register at www.knoxbar.org by clicking October 13 in the event calendar. The Foundation’s Board of Directors for the preceding year were Heidi Barcus, Bill Coley, John Harber, Reggie Keaton, Wayne R. Kramer, Harry Ogden, Mary Ann Stackhouse, The Honorable Deborah Stevens, and Charles Swanson. 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

DICTA

October 2021

OUTSIDE YOUR OFFICE WINDOW By: Robbie Pryor Pryor, Priest & Harber

INSIDE A SONG Music has covered me like a blanket my entire life. The gift was given early by my mother and father. My father’s extensive record collection and encyclopedic knowledge of all genres of music are part of a DNA shared by me and my siblings. Music was a constant in my house growing up. My father’s music system was located in the basement, and when he played it, the notes and melody traveled up through the floor and filled the house. Of course this was before you could hold an entire music library in a phone, and people would come to our house just to hear the music. I didn’t truly understand its power until my adolescence and my first dance with Robyn Weese on the old wood floors of Farragut Middle - Open Arms by Journey. Only later did I realize the scope and breadth of the gift my father had given me. No kid my age was so schooled in the beauty of music. My parents took us to Red Gate Bluegrass Festival on hot summer days to hear the music and eat fried chicken. They dragged us to Buddy’s BBQ on Friday nights to hear the music. How many children growing up in the 70’s and 80’s knew the words to Merle Haggard, Elvis Presley and Van Morrison songs? Any given night, Tom T. Hall, Buck Owens and the Bee Gees might be on the menu. He would sit before his sound system, spinning records and reel-to-reel tape players, implanting our impressionable brains with Stagger Lee by Lloyd Price, all of Buddy Holly’s music, and the Motown sound. The diversity of his music tastes flows through all of us. It was a pure love of music, except Pat Boone. Pat Boone sucks. My love for music has so affected me that each and every major event can be summoned with just a chord, a lyric or a song. My first dance with Cheryl - True by Spandau Ballet. Our song was Brown Eyed Girl by Van Morrison. In high school, my Camaro broke down in Cades Cove while we were listening to REO Speedwagon. While smoke billowed from the engine, I was still able to play the music while we waited for help and talked about life. When I hear the beautiful riffs of The Clash or The Violent Femmes, I’m transported to fraternity parties and pregame parties at the University of Tennessee. Of course Rocky Top runs like a stream through my life, but other standards, like Fox on the Run by The Country Gentlemen and Tennessee by Jimmy Martin grab my heart just as much. I still tear up while singing the Alma Mater at halftime. My heart aches when I hear Kurt Cobain’s voice and unique guitar notes, because he was a constant companion in law school. I suppose each of us has a soundtrack to our life. We recognize it every now and then. Perhaps you have a Spotify playlist. In my day the tool of the trade was the mix tape, and I was the master of the trade. Sometimes I come across an old one, the penmanship on the label fading, and its very presence sends me to a place of nostalgia October 2021

and melancholy. Andy, Shelby, Cheryl, and I swayed to Heartbreak Town by the Dixie Chicks just hours before Cheryl passed. My heart sinks every time I hear it. The joy of Hey Ya, by Outcast still makes me smile through tears as the playback of driving all four of the kids to school runs through my brain, all of them signing along with the volume on 9, Cori shaking her hand to the lyric “shake it like a polaroid picture.” There is 2-year-old Andy in his car seat, singing Superman by Five for Fighting. Then there is Nancy. I Need to Know by Mark Anthony was the first song in our Latin Dance class, its beat taking me to a place where love was allowed back in my life. Follow Me by Uncle Kracker was the first song I put on her mp3 player, a gift for her to listen to while she ran. Since then, every song has been our song, as I endeavored to recreate a home filled with music for her and my kids. When she calls me her personal DJ, I know she could never live without me. All music would sound like me. On a pier bar stage in the Caribbean Sea, she returned from the bathroom to see me on stage with the band. I sang every word of You Shook Me All Night Long by ACDC to her great embarrassment and shock. It was our honeymoon, nearly 20 years ago. The performance was awful. She loved it. I make a playlist for every trip, occasion or event. What was the first song you put on the car stereo on your sixteenth birthday, when you were alone in a car behind the steering wheel for the first time in your life? For me it was Highway to Hell by ACDC, followed by Detroit Rock City by Kiss. A car was freedom. Music told you so. INXS, Duran Duran, Led Zeppelin, The Eagles Greatest Hits and Billy Joel’s Greatest Hits lined the floorboard of my car, all of the music within arms reach. I’ll be 53 this year. I put on my headphones when I walk to work. I play music when I write and when I’m in the office. I tried a case in Cookeville in July. I don’t know how I would’ve gotten through without Oasis, Joe Purdy, Johnny Cash and Weezer. It is never too late to discover. Bruce Springsteen and John Prine came to me later in life, and I’m so grateful. From the music of Barney and Baby Bop, to the melancholy notes of Ashoken Farewell played at Cheryl’s funeral, to the church hymns of my youth, I find solace and sadness, hope and pain, and, above all such joy from the music of my life. It helps me understand and accept the journey. It pushes me, inspires me, and helps me to keep everything under control. It is one of the many gifts given to a son by his father. What is your soundtrack? Discover it, revisit it, and let it wash over you like water. It will make clients more tolerable and the anxieties of this profession more acceptable. Music simply makes life better. Turn it up.

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ANNUAL FALL HIKE SATURDAY, NOVEMBER 6

The Professionalism Committee invites you to the annual fall hike on Saturday, November 6 at 10:00 a.m. at Frozen Head State Park in Wartburg, approximately an hour from downtown Knoxville. Frozen Head State Park is situated in the beautiful Cumberland Mountains of Eastern Tennessee. Appropriately for lawyers, we will hike the Judge Branch Trail, which is about a 3-3.5 mile round trip. It is listed as a moderate hike. We will meet at 10 a.m. at Picnic Shelter A (it’s on the right, about two minutes from the park entrance). Everyone should 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 6 on the event calendar at www.knoxbar.org). If you have questions about the hike, please contact Eddy Smith at esmith@kmfpc.com. If you’re bringing food or drink for lunch, please let James Stovall know at jstovall@rdjs.law.

Everyone is welcome to bring their family and join us on Saturday, November 6!

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October 2021

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Paul Wehmeier Arnett, Draper & Hagood

HESITANCY: TO MANDATE OR NOT For more than a year, employers (including law firms and legal employers) faced the daunting challenge of operating their business, delivering for their clients, and maintaining the staffing levels necessary to accomplish their priorities. Businesses were forced to learn to operate in an economy where physical presence was discouraged. During 2020, health professionals searched tirelessly for treatment regimens and vaccines to bring back normality. In late 2020 and early 2021, vaccines were approved for emergency use. In many workplaces, employers encouraged vaccination to bring people and customers back and restore an economy thwarted by lack of physical presence. But some employees remain skeptical about the safety of the vaccine or have reservations about their rights regarding vaccination. Due to employee hesitancy, businesses are asking: can an employer mandate that an employee be vaccinated as a condition of employment? While the general answer is yes, provided the employer complies with the reasonable accommodation provisions of equal employment opportunity (“EEO”) laws, the legal rationale, compliance considerations, and the business realities of such mandates vary by industry and business circumstances. 1 And, as an adjunct professor of labor law, I would be remiss to ignore that private, unionized workplaces must consider collective bargaining obligations which may exceed those otherwise required by federal, state, and local EEO laws. Workplace rules that mandate vaccination, in the union context, are likely a mandatory topic for bargaining, unless clearly waived by the union.2 The NFL faced this issue and was forced to abandon its proposed player vaccine mandate after the NFLPA opposed it.3 The lion’s share of private employers, however, are not engaged in collective bargaining relationships and have significantly more leeway to adopt vaccine mandates. Therefore, businesses legal risks may center on: (1) whether the lack of vaccination of an employee presents a “direct threat” in the workplace; (2) whether any accommodation requested is reasonable; and (3) whether a requested accommodation presents an undue hardship to the employer. Under ordinary circumstances, where a reasonable accommodation exists, employers should accommodate the disability and/or religious beliefs. Typically, the ADA requires an interactive process to determine what accommodations reasonably can be made for a disability. Akin to the accommodation of a disability, businesses also may be asked to accommodate “sincerely held” religious beliefs. To determine whether the employee presents a “sincerely held” religious belief under Title VII, employers must typically consider whether: (1) “the belief is one of

“deep religious conviction, shared by an organized group, and intimately related to daily living;” or a personally held secular preference; and (2) the employee’s conviction is sincere. If the belief is a secular preference, it is not generally protected by Title VII. The sincerity of the employee’s belief has been held to be a “quintessential fact question.”4 The emergent qualities of the pandemic and changing nature of guidance being provided by health officials and governments render decisions about implementing a vaccine mandate and addressing exemption requests a fact intensive analysis. The prudent employer will consult counsel as it makes decisions related to implementation and enforcement of a vaccine mandate. A final consideration is the reality that businesses are experiencing one of the tightest labor markets in recent history.5 The labor market is creating conflicting priorities for employers: (1) a vaccine mandate to keep staff working and attract workers concerned by COVID-19’s risks; or (2) not mandating vaccination to make the business attractive to hesitant employees and applicants. These considerations are market driven and beyond the limited scope of this article. The prudent business faces these considerations head-on and makes a reasoned decision, given the legal considerations and the reality of its labor market.

On May 28, 2021, the EEOC issued technical assistance regarding vaccine mandates. See “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, available at https://www.eeoc.gov/wysk/ what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-othereeo-laws (last accessed Sept. 9, 2021). “The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII[,] the ADA [,] and other EEO considerations . . . .” See generally, “Bargaining in good faith with employees’ union representatives (Sections 8(d) & 8(a)(5)),” available at https://www.nlrb.gov/about-nlrb/rights-weprotect/the-law/bargaining-in-good-faith-with-employees-union-representative (last accessed Sept. 9, 2021) (stating employers may not: “[m]ake unilateral changes in terms and conditions of employment during the term of a collective bargaining agreement, unless the union has clearly and unmistakably waived its right to bargain . . .) (emphasis added); see also Allen Smith, “Must Employers Bargain with Unions over Mandatory Vaccines?”, available at https://www.shrm. org/resourcesandtools/legal-and-compliance/employment-law/pages/coronavirusbargain-with-unions-vaccines.aspx (last accessed Sept. 9, 2021). See The Athletic Staff, “NFL Proposed Vaccine Mandate; NFLPA Declined, Wants to Resume Daily Testing,” The Athletic, August 26, 2021, available at https:// theathletic.com/news/nfl-proposed-vaccine-mandate-nflpa-declined-wants-toresume-daily-testing/sF9OcdsOedSX (last accessed Sept. 9, 2021). EEOC v. Publix Super Mkts., 481 F. Supp. 3d 684, 669-701 (M.D. Tenn. Aug. 20, 2020) (considering accommodation of a workplace grooming rule). See generally, James Bullard, “An Assessment of the U.S. Labor Market, Federal Reserve Bank of St. Louis,” available at https://www.stlouisfed.org/publications/ regional-economist/second-quarter-2021/us-labor-market (June 3, 2021) (last accessed Sept. 9, 2021).

About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Caitlyn Elam at 546-4646. October 2021

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Photo Ops

KBA Tennis & Pickleball Tournaments – August 20, 2021

The winners of the Tennis Tournament were: Luke Durham, Jeff Taylor, and Kevin Dean. The winners of the Pickleball Tournament were Wayne Wykoff and Matthew Horton.

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October 2021

L E G A L U P DAT E By: Regina Koho

Attorney, Tennessee Valley Authority Office of General Counsel

DO MASK MANDATES INFRINGE ON RELIGIOUS FREEDOM? THE SIXTH CIRCUIT SAYS NO Both here and throughout the country, the scope of the government’s power to enact measures to deal with the COVID-19 pandemic has been, and continues to be, a source of consternation and disagreement.1 Courts have often been drawn into the fray,2 and the Sixth Circuit is no exception.3 In August, the court issued its most recent ruling involving COVID-19 restrictions. In Resurrection School v. Hertel4 the court addressed a constitutional challenge to a mask requirement issued by the Michigan Department of Health and Human Services (“MDHHS”), which was brought by a Catholic elementary school and two parents with children enrolled at the school.5 MDHHS’s order outlining the mask requirement was initially enacted in October 20206 and mandated “that all persons five years of age and older wear a mask in indoor public settings, including while attending public and private K–12 schools.”7 The order was subject to certain exceptions, such as for individuals who could not medically tolerate a mask or were “engaging in a religious service.”8 Plaintiffs challenged the mask requirement in district court, alleging that it violated (in pertinent part) their right to free exercise under the First Amendment.9 The school contended that the requirement violated its “sincerely held religious beliefs because it interfere[d] with . . . [its] religiously oriented disciplinary policies and prevent[ed] younger students from partaking fully in a Catholic education.”10 Likewise, the parents of the children attending the school contended that masks “distract[ed] from their religious education” and that the requirement “conflict[ed] with the[ir] right [as a parent] to choose a school for them which corresponds to their own convictions.”11 The district court denied plaintiffs’ motion for a preliminary injunction, concluding that they were unlikely to succeed on the merits of their free-exercise challenge.12 Plaintiffs appealed the district court’s ruling. In the interim, MDHHS rescinded most of its COVID-19 emergency orders, including the challenged mask requirement, “because of the reduction in COVID-19 test positivity rates, case rates, hospitalizations, and deaths, [and] the availability of COVID-19 vaccines.”13 Based on the rescission of the mask requirement, defendants asked the Sixth Circuit to dismiss the appeal as moot.14 As a threshold matter, the Sixth Circuit determined that plaintiffs’ challenge was not moot. Noting that MDHHS acknowledged in its order rescinding the mask requirement that COVID-19 “continues to constitute an epidemic in Michigan” and that “[b]oth the CDC’s and MDHHS’s guidance recommend that students in grades K–12 wear masks in the classroom,” the court concluded that it was entirely possible MDHHS might reinstate the mask requirement should the COVID-19 situation worsen.15 On the merits of the claim, the court engaged in a robust discussion16 as to whether the mask requirement was subject to “strict scrutiny”—which would require a finding that the order was narrowly October 2021

tailored to serve a compelling state interest17—or rational basis review— which would merely require the court to find “‘that the regulation bear[s] some rational relation to a legitimate state interest.’”18 Distinguishing much of the case law evaluating religious-based challenges to COVID-19 restrictions,19 the court determined that rational basis review was appropriate because the order was “not so riddled with exceptions for comparable secular activities as to render the mask requirement not neutral and of general applicability.”20 Because defendants “had a legitimate state interest in controlling the spread of COVID-19 in Michigan” and presented “more than ample evidence that requiring masks in the school setting minimizes the spread of COVID-19,” the court found that the mask requirement easily passed constitutional muster.21 With schools back in session and COVID-19 cases throughout the country steadily increasing,22 we have likely not seen the last of mask requirements and similar attempts to curb the spread of the virus. As a result, the courts in this circuit are also likely to see challenges to the attempts at the federal, state, and local levels to combat the effects of a pandemic that shows no signs of slowing down.

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See, e.g., Cory Turner, Education Dept. Announces Civil Rights Investigations Into 5 States’ Mask Mandate Bans, NPR (Aug. 30, 2021, 8:33 PM), https://www.npr. org/sections/back-to-school-live-updates/2021/08/30/1032520335/educationdepartment-civil-rights-investigations-mask-mandates; Tyler Whetston, Knox County Commission strips board of health of its pandemic powers, Knoxville News Sentinel (Mar. 29, 2021, 10:29 PM), https://www.knoxnews.com/ story/news/politics/2021/03/29/knox-county-board-stripped-of-pandemicpowers/69973490021. See, e.g., Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021) (holding that plaintiffs were likely to succeed on the merits of their free-exercise challenge to a California order limiting all gatherings in homes, religious and non-religious, to three households). See, e.g., Commonwealth v. Beshear, 981 F.3d 505, 511 (6th Cir. 2020) (concluding that plaintiffs were unlikely to succeed on the merits of their constitutional challenge to a Kentucky order temporarily prohibiting in-person instruction at public and private K–12 schools). No. 20-2256, 2021 WL 3721475 (6th Cir. Aug. 23, 2021). Resurrection Sch., 2021 WL 3721475, at *5. Id. at *2. Id. at *1. Id. at *3. Plaintiffs also asserted equal protection, substantive due process, freedom of speech, and freedom of association claims. See id. at *5. Id. Id. (internal quotation marks omitted). Resurrection Sch. v. Gordon, 507 F. Supp. 3d 897, 900–01 (W.D. Mich. 2020). Resurrection Sch., 2021 WL 3721475, at *4. Id. at *6. Id. at *10 (internal quotation marks omitted). See id. at *12–14. Id. at *12. Id. at *15 (quoting Craigmiles v. Giles, 312 F.3d 220, 223 (6th Cir. 2002)). See id. at *12–14. Id. at *14. The court likewise found that plaintiffs were unlikely to succeed on their equal protection and substantive due process claims. See id. at *16–17. See, e.g., Isabel Lohman, Knox County Schools reports COVID-19 case counts that shatter previous record, Knoxville News Sentinel (Aug. 25, 2021, 7:20 PM), https:// www.knoxnews.com/story/news/education/2021/08/25/knox-county-schoolsreports-record-number-covid-19-cases/5589293001/.

NAME AND IMAGE AND LIKENESS. OH MY! TENNESSEE LEGISLATION AND NCAA RULES FOR STUDENT-ATHLETES IN THE NEW ERA OF COLLEGE SPORTS “I don’t always drink sweet tea, but when I do, I prefer Milo’s.” - Bo Nix, Starting QB for the Auburn Tigers (probably) All kidding aside, Name, Image, and Likeness (“NIL”) deals have been all over the media ever since July 1, 2021, when the NCAA Division I Board of Directors instituted a new policy allowing for Division I (“D-I”), Division II (“D-II”), and Division III (“D-III”) student-athletes to profit from their NIL, regardless of if the relevant state has laws in place yet. This policy has allowed for sponsorships like: • • • • •

Hanna Cavinder and Haley Cavinder (Fresno State Women’s Basketball) - Boost Mobile; Bo Nix (Auburn QB) and Malachi Moore (Alabama Defensive Back) - Milo’s Sweet Tea (smart move by Milo’s, playing both sides of that rivalry); Derek Stingley, Jr. (LSU Cornerback) - Walk-On’s Bistreaux & Bar; Trey Knox (Arkansas Wide Receiver) – PetSmart; and, the entire offensive line of the Notre Dame Fighting Irish - Jet’s Pizza.

For $25 you can even get a personalized message from the Tennessee Volunteers starting quarterback, Joe Milton III, on Cameo. The list of NIL deals could truly go on and on. But why and how is this happening, you might ask. Well, it starts with intellectual property rights. What is Name, Image, and Likeness? NIL rights are based on the idea that you have property rights in your own person. NIL rights therefore grant one an exclusive right to control the commercial use of one’s name, image, or likeness, and the ability to prevent others from exploiting their NIL for economic gain. Keep in mind, though, that NIL rights are subject to First Amendment defenses which would allow for use of one’s NIL in certain circumstances (educational, newsworthy, transformative, etc. uses). NIL rights are protected by state statute or state common law,

but not all states protect NIL in the same way. For example, some states protect NIL as a part of a Right to Privacy1, others specifically recognize a Right of Publicity2, and still others protect NIL under trade practice-type statutes (like Tennessee3). Federal law is involved only if an individual has trademarked their likeness (tough to do as one must prove a commercial activity/brand is linked to their likeness, think Newman’s Own salad dressing), or if false advertising under the Lanham Act is implicated. Now, student-athletes have always had these rights. It is just that they were not allowed to use them without being punished by the NCAA and/or their school for any NIL-related commercial activity (signing jerseys, selling memorabilia, etc.). The reasoning behind the prohibition was basically that the NCAA believed it was necessary to preserve the amateurism of college athletics. While the battle over NIL is not new4, things came to a head with the Supreme Court’s decision in NCAA v. Alston. NCAA v. Alston This case could encompass its own book chapter, but here are the highlights. On March 5, 2014, Shawn Alston, former West Virginia running back, filed an antitrust action against the NCAA. Mr. Alston took issue with NCAA rules which limited the amount of compensation a student-athlete could receive in connection with their athletic services, alleging that these limits violated the Sherman Antitrust Act. Several other D-I student-athletes followed suit and eventually obtained class certification. The Northern District of California found in part for the Plaintiffs and entered a permanent injunction against the NCAA preventing it from limiting educationrelated compensation or benefits (think scholarships, payment for tutoring, books, paid internships, etc.). Both sides appealed the decision, with the Plaintiffs arguing that the NCAA should have been enjoined from any and all compensation limits and the NCAA of course arguing that the district court went too far by prohibiting it from limiting education-related

DICTA

October 2021

COVER STORY By: Campbell D. Cox

Corporate Counsel Appalachian Underwriters, Inc.

compensation. The Ninth Circuit affirmed the district court’s ruling, holding that it had “struck the right balance in crafting a remedy that both prevents anticompetitive harm to Student-Athletes while serving the procompetitive purpose of preserving the popularity of college sports.”5 The NCAA then petitioned the United States Supreme Court for certiorari. Notably, the student-athletes did not renew their across-theboard challenge to the NCAA’s compensation limits. However, on June 21, 2021, not only did the Supreme Court unanimously affirm the lower court’s ruling as to education-related benefits, but Justice Kavanaugh authored a scathing concurring opinion stating that the “NCAA’s business model would be flatly illegal in almost any other industry in America,6” that the NCAA’s other compensation rules are questionable, and the following: The bottom line is that the NCAA and its member colleges are suppressing the pay of student athletes who collectively generate billions of dollars in revenues for colleges every year. Those enormous sums of money flow to seemingly everyone except the student athletes. College presidents, athletic directors, coaches, conference commissioners, and NCAA executives take in six- and seven-figure salaries. Colleges build lavish new facilities. But the student athletes who generate the revenues, many of whom are African American and from lower-income backgrounds, end up with little or nothing.7

The High Court’s opinion clearly spurred the NCAA to action as nine days after the Alston ruling, the NCAA officially suspended its rules prohibiting student-athletes from profiting off their NIL and adopted a temporary rule that punted the issue to the states to come up with NIL regulations. As multiple states had already begun drafting NIL legislation prior to the Alston decision, the NCAA directed studentathletes to comply with any applicable NIL laws of their state but noted that it would not monitor for compliance with state law.8 As of the writing of this article, about 40 states (Tennessee included) have now either signed into law or at least introduced a bill regarding NIL rights for student-athletes. On May 11, 2021, Tennessee House Bill 1351, which amends T.C.A. Title 49, Chapter 7, was signed into law. The amended statute goes into effect on January 1, 2022, and adds two sections, §2081 and §2082. Aside from granting student-athletes the ability to earn compensation for their name, image, and likeness, T.C.A. § 49-7-2082 sets forth a few notable restrictions (summarized below):

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•

No compensation in exchange for athletic performance or as an incentive to attend. Compensation can only come from a third party. Compensation can only come from an “entity whose purpose includes supporting or benefiting” the school or athletic program (i.e. boosters) if it is not contingent on the athlete’s enrollment or continued participation in the program. Neither the school, nor its officers, directors, or employees can be involved in the development, operation, or promotion of a

October 2021

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NCAA Rules & State Legislation

•

current or prospective student’s NIL or cause compensation to be provided to the athlete. Athletes must disclose any agreement, including the amount of compensation and identities of entities or persons providing compensation, to the school in which they are enrolled. An agreement may not extend past their time participating in the athletic program. A school may prohibit an athlete’s involvement in NIL activities that are “in conflict with the values of the institution.” Athletes must take a financial literacy workshop during their first full semester of enrollment. Athlete NIL activity is subject to reasonable time/place/manner restrictions. Athletes are prohibited from involvement in NIL activities that promote gambling, tobacco, alcohol, and adult entertainment. Schools may prohibit athletes’ use of their intellectual property. No athlete may enter into an NIL agreement that conflicts or unreasonably competes with the terms of an existing agreement of the institution. (i.e. could not enter into a clothing deal with Adidas when UT Athletics is sponsored by Nike).

T.C.A. § 49-7-2082 also specifically allows student-athletes to obtain third-party representation for the purpose of securing NIL compensation while in school, noting that if the representative is an attorney, they must be active and in good standing in the state where they are licensed. Comparatively, Tennessee is on the more restrictive end of state NIL statutes. Most states do not require a financial literacy course and some states do not even address booster involvement and compensation. However, all states with NIL legislation seem to agree that school payment (also called “pay-to-play”) to student-athletes for NIL is prohibited. What’s Next? With states rushing to draft and sign into law different statutes on NIL rights, it raises the question: Will the federal government eventually step in? After all, the NCAA has asked Congress on multiple occasions to intervene and create a uniform federal law on NIL rights. There haven’t been any NIL scandals or lawsuits, so far, but it will be interesting to see NIL’s involvement come recruiting season. One thing is certain, while the track is now open for student-athletes to begin pursuing commercial use of their Name, Image, and Likeness, there are still some big hurdles to clear.

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See NY CLS Civ R §§50-51. See Burns Ind. Code Ann. § 32-26-1-1. See T.C.A. § 47-25-1103. See In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d (9th Cir. 2013) (where the N.D. of California consolidated the cases O’Bannon v. Nat’l Collegiate Athletics Ass’n. and Keller v. Elec. Arts, Inc. as having substantially similar NIL subject matter). Alston v. NCAA (In re NCAA Ath. Grant-In-Aid Cap Antitrust Litig.), 958 F.3d 1239, 1263 (9th Cir. May 18, 2020). NCAA v. Alston, 141 S. Ct. 2141, 2167 (2021) (unanimous decision) (Kavanaugh, B. concurring). Id. at 2168. See Name, Image and Likeness Interim Policy, https://www.ncaa.org/about/takingaction.

HELLO... MY NAME IS By: Jennifer Franklyn Leitner Williams Dooley Napolitan

COURTNEY (CJ) STATHAM This month’s Q & A features KBA and TBA member Courtney (CJ) Statham. CJ is an Associate Attorney at Moore, Ingram, Johnson & Steele, LLP, where she specializes in workers’ compensation defense and insurance defense litigation. CJ is a 2016 graduate of Lee University, in Cleveland, Tennessee, where she majored in Biology and Pre-Medicine and minored in English. She attended law school at Mercer University School of Law in Macon, Georgia, graduating in 2020. While attending Mercer, CJ was heavily involved in the law school’s Moot Court, and she served as the Moot Court Chair on the Mercer Advocacy Council during her 3L year. Now, having moved to Knoxville, she considers Knoxville as her home and is a fan of all things related to the Tennessee Volunteers. I hope you enjoy getting to know CJ. Where are you from? I’m originally from Cedartown, Georgia.

What is your favorite thing to do with your family? As a family, we have always enjoyed hiking, traveling, and just trying new things in general. Obviously, being dedicated Vol fans, we also enjoy spending our Saturday afternoons at Neyland.

What brought you to Knoxville? I have always wanted to live here. Growing up, I always considered Knoxville to be my home, and this is where I wanted to establish myself. If you had an unlimited budget, where would you choose to live? Definitely Scotland. I’ve always thought that it is absolutely gorgeous over there, and I would love to have a cottage somewhere in the countryside. What do you like to do in your free time? I really enjoy cooking. I have always enjoyed it, but the pandemic gave me the opportunity to take it a few steps further. I also love to travel, hike, camp, and spend time with my family. As long as I am outdoors, I won’t be complaining.

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October 2021

SCHOOLED IN ETHICS By: Judy M. Cornett

University of Tennessee College of Law

TENNESSEE’S NEW ADVERTISING AND SOLICITATION RULES On September 1, 2021, in response to a petition from the Tennessee Bar Association, the Tennessee Supreme Court approved amendments to Tennessee Rules of Professional Conduct 7.1-7.5, governing advertising and solicitation. These amendments delete Rules 7.2, 7.4, and 7.5 and their comments, moving much of their content to Rule 7.1, Rule 7.3, and their comments.1 These amendments streamline the Rules, moving away from specific restrictions to reliance on the standard that advertising cannot be “false or misleading.”

The major substantive changes are as follows: - New Rule 7.3(f ) makes it clear that lawyers can compensate both lay and lawyer employees for marketing activities: “A lawyer shall not compensate, give, or promise anything of value to a person who is not an employee or lawyer in the same law firm for the purpose of recommending or securing the services of the lawyer or the lawyer’s law firm . . .” (emphasis added). According to the TBA, the former rule forced law firms to “dedicate time and resources to findings ways to compensate such people, indirectly if necessary,” in order not to run afoul of the former rule. The new rule “allow[s] lawyers and law firms greater freedom as to how to compensate those that they actually employ.”2 -

New Rule 7.3(f )(5) adds the Model Rule provision on reciprocal referral agreements: A lawyer may . . . refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer; if: (i) the reciprocal referral agreement is not exclusive; and (ii) the client is informed of the existence and nature of the agreement.

However, lawyers who wish to share fees through a reciprocal referral agreement must still comply with the requirements of Rule 1.5( e).3 - New Rule 7.3(b)(2) allows lawyers to solicit “a person who routinely uses for business purposes the type of legal services offered by the lawyer.” According to Comment [4], Examples include persons who routinely hire outside counsel to represent the entity; entrepreneurs who regularly engage business, employment law, or intellectual property lawyers; small business

proprietors who routinely hire lawyers for lease or contract issues; and other people who routinely retain lawyers for business transactions or formations. The detailed requirements for written solicitations contained in former Rule 7.4(c)(1)-(6) are deleted, and instead new Rule 7.4(c) merely requires that a solicitation contain “the words ‘Advertising Material’ on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication . . .” New Comment [7] to Rule 7.1 makes it clear that distasteful lawyer ads are not subject to sanction, as long as they are not false or misleading: Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. . . . Television, the Internet, and other forms of electronic communication are now among the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television, Internet, and other forms of electronic advertising, therefore, would impede the flow of information about legal services to many sectors of the public. . . .” Comment [9] to Rule 7.1 acknowledges that advertisement of specialization in admiralty law, as well as patent law, is now permitted as a matter of tradition.

According to the TBA, the amendments should “alleviate existing consumer harm by increasing the public’s access to communications about the availability of legal services.”4 Along with the TBA, we can hope that streamlining the rules increases access to justice.

The TBA petition also requested changes to Rule 7.6 regarding intermediary organizations, but the supreme court issued a separate order proposing amendments to Rule 7.6 and Tennessee Supreme Court Rule 44, and invited comments to its proposal by November 30, 2021. Order, In re RULE 8, RPC 7.6 AND RULE 44, RULES OF THE TENNESSEE SUPREME COURT, No. ADM2021-01008 (Tenn. filed Sept. 1, 2021). Tennessee Bar Association, PETITION OF THE TENNESSEE BAR ASSOCIATION FOR THE ADOPTION OF REVISIONS TO TENN. SUP. CT. R. 8, RPCs 7.1, 7.2, 7.3, 7.4, 7.5, and 7.6 , No. ADM2020-01505 (Tenn. filed Oct. 27, 2020), at 5. (e) A division of a fee between lawyers who are not in the same firm may be made only if (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, and the agreement is confirmed in writing; and (3) the total fee is reasonable. TBA Petition, supra note 2, at 1.

If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. October 2021

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barrister bullets BARRISTERS OCTOBER MONTHLY MEETING Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month. The October monthly meeting will be on Wednesday, October 13th with the location to be determined. Networking will begin at 5:00 p.m., and committee reports will begin at 5:15 p.m. To attend, register for the meeting at www.knoxbar. org.

VOLUNTEER BREAKFAST COMMITTEE RESUMES OPERATIONS The Volunteer Breakfast Committee is able to prepare and serve breakfast at the Volunteer Ministry Center, located at 511 N. Broadway, Knoxville, Tennessee at 6:15 a.m. on the fourth Thursday of every month. Please contact either Mitchell Panter at (865) 546-4646 or Matt Knable at (865) 360-5044 with any questions about volunteering.

OCTOBER COAT DRIVE CONFIRMS DROP-OFF LOCATIONS The Hunger & Poverty Relief Committee has confirmed several drop-off locations for this year’s annual coat drive in October. The committee will be accepting new or gently used coats on behalf of KARM’s Coats for the Cold program. Currently-approved drop-off locations include: First Horizon Plaza, the BB&T Building (Riverview Tower), the City County Building (3rd & 6th floor), the U.S. Federal Courthouse, the UT College of Law Registrar’s Office, and the Baker Donelson office. Look for more details in KBA emails.

WELCOME RECEPTION FOR NEW ADMITTEES The Membership Committee will be hosting a New Admittees Reception on October 19 from 5:30 – 7:00 p.m. at the Square Room at Café 4. Experienced attorneys, law students, and recent Tennessee Bar admittees are encouraged to attend this informal meet and greet event. We hope attorneys will share words or wisdom with the new admittees and warmly welcome them to the local legal community. Light hors d’oeuvres and drink tickets will be provided to all KBA members. RSVP at www.knoxbar.org by clicking October 19 in the event calendar.

VETERANS LEGAL ADVICE CLINIC The Veterans’ Legal Advice Clinic is a joint project of the KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox Co. Public Defender’s Community Law Office, the UT College of Law, LMU- Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. The next Veterans Legal Clinic in-person at the Knoxville Community Law Office, located at 1101 Liberty St., Knoxville, TN 37919, on October 13, 2021, from 12 p.m. until 2 p.m.

KNOXVILLE BARRISTERS ANNUAL CHARITY GOLF TOURNAMENT The Athletic Committee will be hosting the Annual Charity Golf Tournament on October 25, 2021 at Holston Hills Country Club. Revenue from the tournament goes directly to funding various charitable endeavors of the Barristers, including the efforts of the Hunger & Poverty Relief Committee. Very few spots are still available for the tournament. Find more information on registering at www.knoxbar.org.

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October 2021

B O AT B U I L D E R S By: Melissa B. Carrasco

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

ONCE A MARINE Haley was from a small town. Founded by Quakers, Friendswood, Texas is a small community nestled in the northern part of Galveston County.1 But small towns have a way of encouraging big dreams, and Haley had big dreams. In high school, she was an all-star goal keeper, and she was a leader.2 “She gives good directions, and thank goodness the team listened to her at that point. Denton had come back after trailing 2-0 in its last two games, so we knew they were very capable. It was a great victory.”3 It was the team’s first state championship.4 Once she graduated from high school, Haley went on to play soccer at the Naval Academy, and then she joined the Marine Corp.5 After finishing The Basic School in Quantico, she served as a logistics officer, stationed at Camp Lejeune, NC.6 But, this was in the early 2000’s, and almost no Marines stayed at Camp Lejeune. Haley was no different. In 2007, she was deployed to Fallujah, Iraq. During that deployment she helped to train the first female Iraqi police force in the city of Fallujah. In 2009, she was deployed again to Al Asad airbase. This time, she was working with Iraqi companies on the reconstruction of Western Iraq, getting them ready for the day that the Marines would be gone.7 By June 29, 2013, when her commission ended, she held the rank of Captain. But, Haley never quit playing soccer. “We played a lot of soccer with kids. I played a lot of soccer in full combat gear, like 85 pounds worth of stuff on! We were inside compounds when we were doing it. It’s definitely one of those sports that unites cultures.”8 Kareem was from a small town. Noroco, California was the brain child of Rex Clark, a developer who dreamed of “a utopian settlement of independent farmers reaping the rewards of their hard work on small farms and ranches.”9 By the time Kareem was born, Noroco had fewer than 25,000 people.10 During his high school years, Kareem joined the Air Force JROTC, and he quickly showed his character. “He was a leader,” fellow JROTC cadet Gabrielle Murray said. “Whether you knew him or not, just hearing stories about how he would tell jokes if people were upset and how he always tried to help out those in need since he joined JROTC, was inspiring.”11 But, Kareem always dreamed of joining the Marines. When he was four years old, he told everyone he was going to be a Marine.12 And, that is exactly what he did after he graduated from high school.13 He was only eighteen years old.14 Within two years, he had risen to the rank of Lance Corporal. Then, he was deployed to Afghanistan.15 When she had finished eight years in the Marines, Haley went back to the soccer fields, joining the Houston Dynamo as its goalkeeper. In 2016, when the Afghanistan Football Federation finally began supporting the country’s women’s national team, Haley agreed to serve as its goalkeeper coach, mainly because she wanted to see women succeed in the sport that she loved.16 When she was received the FIFPro World Players Union Merit Award, she donated the proceeds to help pay for the team to attend the 2016 South Asia Football Federation Women’s Championships.17 At the time, the team could not even meet inside Afghanistan because it was unsafe.18 Even though she only coached the Afghanistan Women’s National Team for two years, she never forgot them, and she never stopped being a Marine. So, when she received a phone call from the former captain of the team, Haley answered. The team needed a Marine. Specifically, they needed a former logistics officer. They were in danger. As the Taliban moved into Kabul, the young women found themselves fleeing for their lives. They had become symbols of female equality, and that made them targets. While lawyers, human rights October 2021

activists, and others began frantically trying to get them visas, Haley’s focus was on getting them to the Kabul airport where they might have some hope of extraction if any country anywhere would grant them visas.19 Using the GPS locators on their cell phones, Haley utilized her military connections to create a digital map to guide the women through the chaotic city. After three, terrifying days, they were almost to the Main Gate where the Australians, who had accepted their visa applications were waiting.20 The Taliban were also waiting there. So, from her home in Houston, Texas, Captain Haley Carter guided them back to a different gate-the Abbey Gate. But, the crowds were too thick, and the danger was growing. So, the young women—some barely teenagers—climbed down into a sewage ditch and began wading through the sewage and crowds of desperate people hoping to reach the gate in time.21 After eight hours, nine of the women finally spotted some Swedish troops who hoisted them out of the sewer and into the airport property.22 But, their ordeal was not over. The rest of their team was still out there. They needed a Marine. That is when the women spotted Kareem, the twenty-year-old Marine from California. They explained the situation to him, and he went straight to the wall by the sewage ditch—looking for more members of the soccer team and hoisting them out of the ditch to safety. In total, 86 members of the Afghanistan Women’s National Team and their family members were rescued. A few hours later, a suicide bomb exploded at that exact same sewage ditch while gunmen opened fire on the Abbey Gate. Lance Corporal Kareem Mae’Lee Grant Nikoui was killed in the attack. It was August 26, 2021, and he was twenty years old. Captain Haley Carter. Lance Corporal Kareem Mae’Lee Grant Nikoui. Boat builders build boats, and Marines never stop being Marines whether coordinating logistics from Houston or protecting lives in Kabul. Semper Fi.

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History of Friendswood, https://www.ci.friendswood.tx.us/402/History-ofFriendswood, last visited Sept. 9, 2021. L. Scott Hainline, Sports Roundup: Friendswood Holds off Late Denton Run, Wins 4A Title, Baytown News (Apr. 11, 2001), https://www.chron.com/ neighborhood/baytown-news/article/Sports-Roundup-Friendswood-holds-off-lateDenton-2050671.php. Id. Id. Tom Dart, Memorial Day Carries Extra Significance for Houston Dash Goalkeeper, Iraq Veteran Haley Carter, Houston Dynamo.com (May 25, 2014), available at https://www.houstondynamofc.com/news/memorial-day-carries-extrasignificance-houston-dash-goalkeeper-iraq-veteran-hal. Id. Id. Id. City of Noroco, CA, Noroco History, http://www.norco.ca.us/connect/history.asp, last visited Sept. 9, 2021. City-Data, Noroco, CA, http://www.city-data.com/city/Norco-California.html, last visited Sept. 9, 2021. Brennon Dixson, ‘He just had a lot of heart’: Norco honors beloved local Marine killed in Kabul bombing, Pasadena Starr-News (Aug 30, 2021), available at https:// www.pasadenastarnews.com/2021/08/29/he-just-had-a-lot-of-heart-norcohonors-beloved-local-marine-killed-in-kabul-bombing/. Alexandra Rockey Fleming, A Mom Remembers the Many Things to Love about Marine Son Killed in Afghanistan Evacuation, People (Sep. 9, 2021), available at https://people.com/politics/kareem-nikoui-was-perfect-in-so-many-ways/. Trevor Hughes, California Marine Kareem Nikoui, 20 killed in Kabul Airport Bombing:

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LEGAL MYTHBREAKERS By: Brad Fraser

Leitner Williams Dooley Napolitan PLLC

BOTH SIDES NOW

IT’S ALL ABOUT PERSPECTIVE This is usually the space where David Long or I present a “Legal Mythbreakers” article. I wanted to take a break from that theme and just write an article about my perspective of being a lawyer. Like many of my contemporaries, I did not go straight from undergraduate study to law school. I spent about 10 years working in different positions with a degree in psychology and social work. While it gave me some helpful perspectives, the most helpful perspective I gained from that period of time had nothing to do with my various jobs during those years. It came from my perspective of the other side of the attorney/client relationship: a client. The alliterative lyrics (“the dizzy dancing way you feel”) of Joni Mitchell’s “Both Sides Now” is a beautiful foray about experiencing clouds, love and life from different perspectives. Like the lyrics, oftentimes as attorneys we “shake our heads” at the way our respective clients fail to understand what seems so clear and simple to us. What we often fail to recall is how the law looked to us before we became lawyers. Whether it is “love’s illusions” or “life’s illusions” we recall, surely, we can remember how baffling and counterintuitive the law must have seemed to us before we took the bar. My first experience with a lawyer happened as a result of a car wreck in 1986. A Ford Econoline van pulled directly out in front of me and my family in my Datsun B210. Needless to say, we got the worst of the encounter. After an overnight visit at the ER, we were contacted by the insurance company and requested to come in to give a statement. I was so impressed with how accommodating they were and was looking forward to a quick and fair resolution. After giving my recorded statement, I was ushered out and advised I would get an offer for my car and our injuries. They offered me $400 for a car for which I had just paid $600. I also put in a new clutch, pressure plate and throw out bearing. None of that impacted the “Blue Book Value,” so I was out a vehicle and offered nothing for the injuries. I went in search of a lawyer. Fortunately, we were connected to a young attorney named Nancy Harr. She resolved both the vehicle and injury claims quickly and fairly. You may have heard of Ms. Harr, as she served a stint in the U.S. Attorneys office for the Eastern District of Tennessee.

The second experience was a hotly disputed custody battle. I will spare the details, but fortunately I hired Dan Street in Kingsport to represent me. Dan was a combination warrior and counsel for me during the most tumultuous period of my life. You may know him now as the Sullivan County Attorney, a position he has ably handled for several years. Both of these experiences were invaluable to me as an attorney now. It is tempting to just treat it as a show: But now it’s just another show And you leave ‘em laughing when you go And if you care, don’t let them know Don’t give yourself away I always try to keep in mind that I have a client to whom the litigation is a very personal matter. Whether it is a car wreck, a custody dispute, a fraud claim, or a boundary dispute, these are real issues involving real people. I guess the purpose of this article is to challenge all of us to look at the attorney-client relationship from both sides. If you were ever a client of an attorney, try to remember what it was like to be in that position. Remember how much you relied upon that attorney to guide you through the process. Hopefully, it was a positive experience. If so, try to emulate that for your clients. If not, try to make it so. If you have never had to hire an attorney, imagine what it looks like from the other side. Look closely at your letter to the client and see if it would make sense to normal person with a typical education. Look closely at your bill and ask yourself “would I pay for this?” “Did that .4 phone call really last 20 minutes?” We will pick back up with Legal Mythbreakers in the future. In the meantime: Well something’s lost, but something’s gained In living every day.

B O A T B U I L D E R S , continued ‘His Memory will live on forever,’ USA Today (Aug. 27, 2021), available at https:// www.usatoday.com/story/news/nation/2021/08/27/kareem-nikoui-identifiedamong-dead-calif-city-officials/5622660001/. 14 Fleming, supra n. 12. 15 Erika I. Ritchie, Marine Lance Cpl. Kareem Nikoui of Norco among those Killed in Kabul Airport Bombing, Daily Bulletin (Aug. 27, 2021), available at https://www. dailybulletin.com/2021/08/27/norco-marine-among-those-killed-in-kabul-airportbombing/. 16 Jenny Dial Creech, Haley Carter Faces Challenges with Afghanistan Women’s Soccer Team (June 1, 2019), available at https://www.houstonchronicle.com/ sports/columnists/dialcreech/article/Haley-Carter-faces-challenges-withAfghanistan-13914993.php. 17 Haley Carter, Association Football Player, https://allfamousbirthday.com/haley-

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carter/, last visited Sept. 9, 2021. Common Goal, From Friendswood to Kabul--Getting to Know Haley Carter (2018), https://www.common-goal.org/Stories/From-Friendswood-to-Kabul--Getting-toKnow-Haley-Carter2018-09-20, last visited Sept. 9, 2021. Drew Hinshaw & Joe Parkinson, A Daring Escape Plan, Wall Street Journal, A1, A11 (Sep. 4-5, 2021). Id. Id. Id.

October 2021

URBAN LEGENDS By: Sarah M. Booher Garza Law Firm

BOO AT THE BIJOU Now Knoxville’s third-oldest building standing and its oldest commercial property, the Bijou Theatre was originally built in 1816(ish) as a private residence for Thomas Humes, a wealthy merchant. While the Lamar Hotel was born after his widow sold it a year later, the building has housed a variety of businesses over the years, including a fruit stand, used car storage lot, adult movie house, and brothel. But in its heyday, it was the place to be and be seen for Knoxville’s wealthy residents. There was a gala reception for Andrew Jackson while in town. Moreover, Frances Hodgson Burnett, famed author of The Secret Garden, had a brother who was a bartender at the hotel’s saloon. She herself loved the masquerade balls. Additionally, Rutherford B. Hayes, James K. Polk, and Ulysses S. Grant were all guests of the hotel. The Bijou Theatre itself was developed from the Lamar House ballroom/ back wing and opened in 1909. It was Knoxville’s first racially-integrated business. THE GHOST OF WILLIAM SANDERS When the Civil War dawned, Lamar House became a hospital for both sides. Colonel William P. Sanders, a chief of the calvary corps for the Union army, arrived in town on September 3, 1863, with plans to scout out the enemy and disrupt communication and transportation as part of the Knoxville Campaign. However, he was shot on November 18th by Confederate sharpshooter Colonel Edward Porter Alexander, his old roommate and classmate at West Point. He was taken to the bridal suite at Lamar House, where he died the next day. Initially buried under the cover of night in the cemetery of Second Presbyterian Church, his body was later moved to the Chattanooga National Cemetery (although there are also accounts that he’s buried at the entrance of Krutch Park), but his ghost is rumored to still be at the Bijou. Employees and guests are often visited by a soldier and catch glimpses of the glimmer of his uniform buttons and the corners of his eyes. If you’re ever on the top floor, beware. That’s where he died and continues to linger. Perhaps he’s still looking for his true love, a local woman whose family included a Confederate spy. THOMAS ATKINS IS THIRSTY The ghost of Thomas Atkins would join him 14 years later. Atkins ran, well, the Atkins Hotel, rumored to be the second-best hotel in town after the Lamar House. He didn’t much care for Thomas Sneed, Lamar House’s manager at the time. When Atkins asked for water after October 2021

an all-day party at Sneed’s hotel, Sneed asked him, “What do you want water for when you can have a man’s drink?” In the midst of the ensuing altercation, Sneed took a derringer pistol from his pocket and shot Atkins in front of the remaining partygoers. He went free on a claim of selfdefense, but his social career was as dead as Atkins. Both Thomases can be visited these days in permanent proximity to one another at the Old Gray Cemetery. However, urban legend says Atkins is still desperately seeking that water. So, if you’re ever in the Bijou and hear footsteps of the paranormal variety, grab some tap or bottled water. Then he’ll leave you alone. OTHER PHANTOM PRESENCES A man by the name of Elium Smiley worked at the Bijou from 1909 until it closed in 1926. He signed his name underneath the landing bridge, and it is rumored that he is the spirit who walks the rafters and stage catwalk every evening. He also caused a lot of mischief for construction crews during the theatre’s roof renovation. Smiley loved making loud crashes and dropping large clumps of dirt and plaster onto the stage, while the ceiling above the mess remained mysteriously intact and secure. Perhaps the most haunted area of the Bijou is the women’s restroom

on the second floor. There are countless accounts of icy hands tugging at women’s hems and pants while in there. Employees theorize that it is a child trying to get their attention. Ghost Hunters, an A&E television series, named the Bijou the “hidden gem of haunted America,” although it has yet to devote a full episode to its ghosts. Other paranormal researchers declare it the most haunted building in Knoxville, claiming to have witnessed physical interactions, apparitions, disembodied voices, and residual hauntings. Regardless of the fame and notoriety these spirits bring to the Bijou, the building’s caretakers continue to leave one light on every evening in the theatre – the ‘ghost light’ – for their local phantom friends.

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WELL READ By: Luke P. Ihnen

Federal Defender Services of Eastern Tennessee, Inc.

RAISING WHITE KIDS I grew up in what I considered to be a racially progressive home. We were raised to be “color-blind.” It was the ‘90s equivalent of racial progressivism—I even had a Black friend (seriously). Still, many of my friends and family made racist comments and told racist jokes. I am sure that I laughed at some of them. I probably even told one or two. Growing up, I knew racism existed, but struggled to understand why people hated others because of the color of their skin. I understood that I was not supposed to talk about race or racism, and that it was wrong to notice the differences in people of color. It never crossed my mind to question the treatment of Blacks and other minorities at the hands of the police. And it was okay to have Black friends, but I shouldn’t date a Black person, as my parents once reminded me. Of course, the world we live in is no longer the world of the ‘90s. And what was good enough then (which, of course, does not mean that it was “good” then) is not good enough now. I now understand the harm that color-blindness can cause. I am now aware of my white privilege and implicit biases, and the privilege and biases we all hold; of the structural racism in our institutions. I understand the value of diversity and inclusion in all aspects of life and try to find ways of using my privilege to lift up the voices of others. As a father, I am trying not to pass along the color-blind teachings of my youth, and instead raise my children to see, acknowledge, appreciate, and affirm racial differences. I recently came across the book Raising White Kids: Bringing Up Children in a Racially Unjust America by Jennifer Harvey. Harvey, a white college professor, uses experiences from her childhood and career as an educator to explain the importance of raising race-conscious white children. According to Harvey, white children are not well-equipped to discuss race and racism. For example, her white students found it easier to talk about abortion than they did to talk about race.1 Meanwhile, parents of Black and other children of color must teach their children about race as “a basic matter of their children’s well-being and survival.”2 Harvey is particularly critical of color-blindness. Not because the motivation or logic behind it are bad—in fact, she explains that colorblindness is an “outgrowth of the central moral message of the civil rights movement.”3 But because color-blindness doesn’t work. Consider: “Imagine being told your entire life that the most important thing you need to know about race in your daily life experience is that ‘we’re all equal.’ Then, imagine being suddenly expected at the age of nineteen to make sense out of a news story coming out of Ferguson, let alone be an informed and able discussant in a high school or college classroom about social realities that make clear such equality is actually not the case.”4 More important, “color-blindness cannot teach children equity because it does not line up with how their brains actually function.”5 Studies show that children as young as six months begin noticing the physical differences that mark race.6 As early as five-years-old, children recognize that different groups are treated differently.7 In fact, “children experience their friendships in the context of the same racial tensions and larger societal racial alienation that adults do.”8 But that does not mean that we are all predisposed to racial prejudice. Noticing physical differences is a normal part of neurological development. Race is a social construction, meaning that “differences such as skin tone, hair texture, shapes of faces, and so on don’t have any significance or meaning in and of themselves.”9 Rather, we give these physical attributes meaning through our social practices.10 “Noticing differences and developing prejudice are two distinct processes.”11

Prejudice is learned. The book is filled with useful information, takeaways, and helpful tips to navigate raising race-conscious white children. One of the lessons we have taken to heart is speaking openly and honestly about peoples’ differences. One of my daughter’s best friends in daycare is Black. When she talks about her friend, she almost never mentions that she is Black, a fact that she obviously already knows. Sometimes my daughter does say that her friend is Black; or that she wears beads in her hair; or that her mommy looks like one of our neighbors. My ‘90s parents would have shushed me and hurried away embarrassed. They might have even reprimanded me and told me not to do so again. Harvey explains that these types of reactions can reinforce negative stereotypes about Black and other people of color. Think about it: when was the last time you shushed your child for saying someone was white? According to Harvey, it is important to acknowledge that our daughter is seeing differences, and reenforce her observation with something like: “You’re right, she has beautiful black skin.” As Harvey explains, “whether we explicitly pay attention to children’s racial development or not, our children develop anyway.”12 Our children will experience racism whether directed at them, a classmate, or another adult. We can decide to support them in interpreting it or not. Talking about race and racism is awkward. It can be uncomfortable, especially when we reveal our own biases. Talking about race and racism with your child can be even more awkward. Too often, our default is to avoid it altogether. Harvey reinforces that “understanding that racial identity unfolds and grows in our kids’ lives, even if we don’t quite grasp all of the ins and outs of what this looks like or always know how best to nurture it, inclines us to begin to notice things we otherwise might not.”13 In that way, we can grow together with our children in our racial development. What an amazing gift. Parenting is hard even when you don’t talk about race and racism. We are certainly not experts, but we are trying. I hope our children will be the better for it. I hope yours will too.

Jennifer Harvey, Raising White Kids: Bringing Up Children In A Racially Unjust America, 6–7 (Abingdon Press Nashville 2017). 2 Harvey, supra note 1, at 7. 3 Id. at 25. 4 Id. at 9 (emphasis in original). 5 Id. at 30. 6 Id. at 28–29. 7 Id. at 30. 8 Id. at 182. 9 Id. at 26. 10 Id. 11 Id. at 29. 12 Id. at 102. 13 Id. at 103 1

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October 2021

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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

IT’S TRAVEL TIME: APPS AND WEBSITES THAT WILL HELP YOU ON YOUR WAY We are excited. Armed with our vaccinations (even though our arms were sore for a while), we are ready to hit the road, hop on a plane, and/or visit new and exciting places. (And you can rest assured we will be in Vegas next year for the Consumer Electronics Show.) So, we decided this would be a good time to share our favorite travel apps and web sites. We will dedicate most of this article to airline booking apps, but we will also include some additional apps and web sites that can assist you in your travels in a variety of ways. Airline Booking Web Sites and Apps In our opinion, the best airline booking services are: ITA Matrix, Google Flights (powered by ITA Matrix), Monondo, Kayak, Expedia (and Orbitz and Travelocity), and Skiplagged. If you are going to travel on Southwest, you have to search Southwest separately. It does not allow access to aggregators or third-party booking sites. ITA Matrix (Matrix.itasoftware. com)and Google Flights (google. com/flights) Bill’s partner, Jim Kelley, turned us on to ITA Matrix in the 1990s well before Google bought the technology from a bunch of MIT computer geeks. It is the grandmother of all flight searching web sites. Google bought the technology and software in 2011, but many other providers such as Orbitz, Delta, United, and, of course, Google Flights use the technology. The interface takes a little time to learn, but it is the most powerful tool in the bunch. However, you cannot book flights directly on Matrix, but you can paste the results of your search on bookwithmatrix.com to book the flight you found. Or, you can use Google Flights, but we don’t think it is quite as snazzy as Matrix. Also, not all airlines can be found on Matrix or Google Flights. Momondo (momondo.com) Momondo is an “aggregator” and a flight booking site. An Aggregator searches a number of sites and helps you find the best flights and deals on the web. You then go to another site to book the tickets. Momondo does both, but it shows its booking options first. Many consider Momondo the best of the pack. Kayak (kayak.com) Kayak is a pure aggregator. It has a robust set of searching options, but in our experience, it does not always find the best and cheapest flight. It does a good job, however, of telling you when you should wait for a lower price. Expedia (expedia.com) and Orbitz (orbitz.com) and Travelocity (Travelocity.com) Microsoft gave birth to Expedia and sold it in the mid-1990s. It went public in 1999. It now owns Travelocity, Orbitz, Hotels.com and Hotwire. From our limited testing Expedia, Orbitz and Travelocity all give the same results. The results are not so hot at finding the best price, but they are good places to book the entire trip –flights, rental cars, hotels, etc. Skiplagged (skiplagged.com) We stumbled on this site in our research, and it is pretty darn cool. Its name comes from a little-known travel trick called “skiplagging.” Here is how skiplagging works. Let’s say you want to go to Cincinnati, but the flights to Cincy are too expensive. However, you found a much cheaper flight that has a stop in Cincy and then you go to Cleveland, either with or without a plane change. So, you

book the cheaper flight, get off in Cincy, and skip the flight to Cleveland, thereby saving money. (This does not work if you check baggage) Airlines obviously do not like this practice, and the airlines have been known to take adverse actions against skiplaggers, such as banning them from the airline or revoking their frequent flyer points. But the web site Skiplagged is still great without the use of skiplagging. (It does include skiplag fares in its search results.) Nevertheless, Skiplagged is an aggregator that often finds the lowest fare and best flights, and it is very fast. The search options and interface is not as neat as others, but, if you want to find cheap flights fast, you may want to try Skiplagged. Other Travel Apps and Services Driving Apps and Web Sites If you really can’t afford, or don’t want, to fly, there are many apps and web sites that make your trip easier and more enjoyable. Of course, Waze and Google Maps are very helpful in making sure you stay on the proper and best route for your driving journey. While you are on the road driving use GasBuddy to help you find fuel by location and price. iExit will tell you what is waiting for you at each exit on the interstate. RoadTrippers will give you suggestions on where to stop to find interesting places, parks, campsites, restaurants, etc. while you are on the road. And, if you are a hiker, try the AllTrails app to help you find interesting trails to hike – whether you are in for a short jaunt or a challenging trek. If you want to ride on a bus or a train, try Wanderu. Places to Stay: If you are looking for lodging, try Hotel Tonight, Hotels. com, Airbnb or VRBO (as well as sites such as Expedia and Travelocity). If you want to camp, or you travel in an RV, trip, try looking for camping sites on recreation.gov or on Dyrt. Try Hipcamp, if you want to go “glamping” in a yurt or a tiny house. If you are in an RV, try the KOA app or rvparkfinder.com. Trip Planning and Organizing If you want to have an enjoyable trip, you should plan and organize your trip. You can emulate Phillip and put everything in OneNote that relates to your trip (flights, places you are staying, rental cars, restaurants, etc.). Or, you can try TripCase, which will combine all trip related items into a chronology or itinerary (and you can add notes to the list). Another, similar app is Tripit. Tripit works by locating confirmation emails in you email box and building your itinerary from the confirmations. If you want to learn more about your destination, try TripAdvisor or Culture Trip. The latter gives you interesting articles about your destination (supposedly written by locals). If you need help with deciding what to pack for your trip, try PackPoint. PackPoint tells you what you should pack, based on the length of stay and the weather forecast and the resources available at your destination. If you want to meet some local people with interests similar to yours, try Meetup (no, it is not a dating app). So, get out there and get ready to take your vaccinated body on an interesting and fun trip.

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October 2021

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

NOT ABOUT ABORTION This column is not about abortion. But it is about the new Texas abortion law. As you’ve probably heard, Texas recently enacted the most restrictive abortion law in the United States. In one respect the law is not unique: It seeks to ban abortions long before fetal viability, a clear violation of the standard established in Roe v. Wade1 and refined in Casey v. Planned Parenthood.2 Other states have enacted similarly restrictive statutes. Some of those statutes are currently being challenged in court. While those challenges are pending, the courts have enjoined their implementation. The Texas statute is also being challenged. This time, however, the Supreme Court has refused to enjoin its implementation while the challenge is pending.3 That’s because the Texas statute differs from other abortion bans in the manner of its enforcement. Texas will not enforce the statute directly. Instead, it has delegated enforcement to, well, anyone—anyone enticed by a bounty of $10,000, plus legal fees and costs, per violation.4 This creates a practical question: Whom should opponents of this law sue? There’s no state official in sight. So should they sue the people, whoever they are, who file enforcement claims? Well, okay, but upon what basis? A constitutional violation? The Constitution only protects us against government action. Are these private plaintiffs acting privately, or upon behalf of the state government? For the record, I think it’s pretty clear that they are, effectively, state actors,5 but Texas has muddied the waters—muddied them enough, apparently, that five members of the Supreme Court don’t know what to do.6 I must admit, the Texas statute has confused me, too. So I was very glad to see a recent Facebook post by my friend and colleague, Ben Vernia, a former federal prosecutor, and a graduate of Tennessee’s own Vanderbilt Law School. Ben spells it out: The Big Lie of the Texas abortion case (Whole Woman’s Health v. Jackson) is that Texas was clever in creating a “statutory scheme before the Court [that] is not only unusual, but unprecedented”—to quote from Chief Justice Roberts’ dissent. Nonsense. It’s not at all unprecedented. But that doesn’t make it legal. It just makes the Court’s refusal to enjoin it an enormous leap away from the rule of law. The Texas law is a classic example of a “qui tam” statute, one which empowers private citizens with the enforcement of a law. “Qui tam” is short for “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” or “he or she who sues on behalf of the sovereign as much as for him- or herself.” The majority (plus Roberts) acts as if Texas has come up with some astonishing innovation, when in fact qui tam laws go back hundreds of years, both here and in England. But that doesn’t make this law constitutional; it just means that the majority’s head-scratching at whether the state can be sued is either ignorant (quite possibly, because, on average, each of these five justices has less than ten years’ experience practicing law) or it’s gaslighting. Qui tam citizen-plaintiffs (called “relators”) stand in the shoes of the state, and there’s no logical or legal reason to

conclude that the state, as a named defendant, is incapable of representing the state’s interest in the law’s viability. You may recall that the executive branch (the president, federally; the governor, in Texas) is assigned the duty to “take care” that the laws are faithfully executed. Some courts have upheld qui tam laws (e.g., the federal False Claims Act, with which I’ve worked for about 25 years) against challenges that they impermissibly delegate the executive’s “take care” obligations, on the basis that the law includes provisions to ensure oversight of citizen suits by the executive branch. Those provisions seem to be entirely absent in the case of Texas’s law, despite the fact that Texas’s constitution (like the United States Constitution), assigns the job of enforcing its laws to the executive. Tex. Const. Art. IV, Sec. 10. So, this is not some clever new loophole that Texas has discovered. It’s just a blatantly unconstitutional law (probably regarding both the right to abortion under federal law and the separation of powers under the Texas constitution). The Supreme Court’s bewilderment at how to deal with it is nonsense. Okay, so, according to Ben, who has worked in this area for decades, the essential problem with this statute, beyond its immediate and continuing violation of Roe and Casey, is that it delegates unfettered executive authority to private citizens.7 I might add that this delegation has some pretty serious implications. For example, what if California, with its democratic supermajority, were to borrow the Texas statute and substitute “gun” for “abortion?” The protections of the Second Amendment would instantly disappear in California. What if some other state were to use such a scheme to severely limit religious practices, or perhaps free speech—no more MAGA signs in New York? As I said, this column is not about abortion, it’s about allowing a state—any state—to decide which of the individual rights protected by the U.S. Constitution it will honor, and which it will destroy. And that ain’t the way the Constitution works.8 3 1 2

410 U.S. 113 (1973). 505 U.S. 833 (1992). 594 U. S. ___ (2021), available at: https://www.supremecourt.gov/ opinions/20pdf/21a24_8759.pdf. Texas Senate Bill 8, 87th Legislature (2021), available at: https://legiscan.com/TX/ text/SB8/id/2395961. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922 (1982). And even if the plaintiff in one of these enforcement cases were not a state actor, the state courts who will hear those cases certainly are. Shelley v. Kramer, 334 U.S. 1 (1948); New York Times v. Sullivan, 376 U.S. 254 (1964). Attempting to cut through this ambiguity, the Department of Justice has just filed a lawsuit directly against the State of Texas. United States v. Texas, Civil No. 1:21-cv796 (W.D. Texas, 2021). Complaint available at: https://www.justice.gov/opa/pressrelease/file/1431596/download. The Court criticized such a delegation of executive power in Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 122 (1982). U.S. Const., Art. VI.

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. October 2021

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BENCH AND BAR IN THE NEWS How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to Marsha Watson at mwatson@knoxbar.org. VIEW THE CURRENT LIST OF KBA VETERANS The Knoxville Bar Association thanks all of our Veterans for their service and dedication to our country. Review the list of members who have served in the military at www.knoxbar.org/kbaveterans. If your name is not on the flyer and you would like to be added, please contact Jonathan Guess, Membership Coordinator, by October 8. An insert is planned in the November DICTA.

WELCOME NEW MEMBERS

THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS: NEW ATTORNEYS Ephraim Alajaji Sitel Operating Corporation Darren V. Berg Matthew Bettis London Amburn, P.C.

LMU ANNOUNCES R. GERALD MCMURTRY LECTURE You are cordially invited to attend the 2021 R. Gerald McMurtry Lecture, which is being held in LMU Law’s Courtroom (third floor-Room 340) on Friday, October 22, from 9:30 a.m.-1:30 p.m. Presented by the Duncan School of Law and LMU’s Lincoln Institute, the event will feature noted Lincoln scholar Ron Soodalter, who will talk about “Lincoln and the Power of the Pardon.” For information, please contact Catherine Kelly: catherine. kelly@lmunet.edu or 865-545-5339.

Samma Faye Harper Bromley Harper Auto Square Casey S. Carrigan University of Tennessee Hannah McSween Cole Baker, Donelson, Bearman, Caldwell & Berkowitz Colleen M. Morris Moore, Ingram, Johnson & Steele, LLP

FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates? Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource.

Loren E. Plemmons Chelsea J. Price Held Law Firm David Sexton, II The Sexton Law Firm Jacob James Thompson Dish Wireless LLX

LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www. knoxbar.org by clicking Member Resources and then Practice Resources.

NEW LAW STUDENT MEMBERS Olusegun Aboaba Roger L. Blankenship Elizabeth Brotherton Morgan E. Bryant Samantha N. Buller-Young Sarah Beth Cain Victoria S. Cleaton Diann M. DeJulia Nathan M. Dowdy Daniel K. Dunn Shelby D. Gevedon Dylan C. Gilbert Thomas Gutwein William Hitchcock Jennifer R. Jastrowski Hank A. Jenkins Luke A. Johnson

OFFICE SPACE AVAILABLE: • Existing association of attorneys have available 1-2 office spaces in historical building 1816 Clinch Ave., across from Ft. Sanders Reg. Hospital to include parking spaces, conference room, reception area, receptionist, phone system, internet and Lexis access. Email cburks@ jnblawfirm.com or call (865) 524-1873 for inquires. •

•

1520 Highland Avenue in Fort Sanders Available - The offices are $1,000/month and includes a private office and access to a common area that includes a full kitchen, reception area, conference room and separate client meeting room, plus 1 free parking space in addition to free on street parking. The office is “Class A” space (there’s even a fireplace in the meeting room!)and it would be a great office sharing arrangement for up to 4 people who are starting out. Rent includes utilities, alarm, and internet. Contact Perry Childress at (865) 803-2545.

Andrew D. Kofoed Dalton Laney Jacob A. Lawrence Meganne E. Lee Hunter D. Lepper Sharon Leveron Caleb J. Loppe Matthew Pettit Phil G. Reed Nolan Renfro Jason P. Repath Sydney Ribelin Grant M. Sadler Laken Scott Micalah Soileau Cortland S. Souther Caleb E. Stuber

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

Private office building for Lease at 5301 Kingston Pike. 1,907 square feet with 2 entrances, 4 offices, 2 conference rooms, and workspace located in the heart of Bearden! Space previously occupied by Landry & Azevedo. Email justin.cazana@avisonyoung.com or call 865-4508883 for inquiries.

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Joseph K. Christian BPR #: 024358 Bass, Berry & Sims PLC 900 S. Gay Street, Suite 1700 Knoxville, TN 37902-1859 Ph: (865) 521-6200

October 2021

LONG WINDED By: Jason H. Long London Amburn

THIS DATE IN HISTORY It is a difficult time to come up with ideas for a humor column. Very little going on in the world or making headlines these days seems particularly funny. As I write this, we are observing and commemorating the anniversary of the 9/11 attacks. Ironically, I was in the middle of writing this column 20 years ago when I first heard about a plane hitting the World Trade Center. We continue to witness humanitarian, diplomatic, and military crises in Afghanistan unfold. The Delta variant has not yet hit its peak. Our community is deeply divided over political and societal issues, and our one unifying force, the Tennessee Volunteers, just lost their first game of the season to Pittsburgh. However, I am an eternal optimist and a firm believer that time and distance put everything in perspective. When I get stuck, as I am today, trying to find something of topical interest to write about, I fall back on an old trope: Identifying significant events in history that occurred on this day. It’s an easy fall back because a quick Google search followed by some moderate Wikipedia research easily yields 1000 words that, while not always funny, is at least educational. I dare anyone to walk away from this column saying, “I didn’t learn anything new.” Unsure of the actual date of publication of this article, I picked September 28. Without further ado, I give you September 28 in history. On this date, in 44 B.C., Pompey the Great was assassinated in Egypt. Fleeing from his defeat to Julius Caesar, Pompey made for the coast of Egypt and initially was received by Ptolemy XIII (rival for the throne of Egypt with his sister, Cleopatra). Ptolemy XIII had a change of heart and killed Pompey in an effort to curry favor with Caesar. Upon receiving Pompey’s head, Caesar lamented that he could not have captured Pompey himself. Caesar subsequently sided with Cleopatra who won her claim to the Egyptian throne. Ptolemy XIII is lost to history for his blunder. William the Conqueror began his invasion of England on September 28 in 1066. Is this the most memorized date in all of world history? Maybe that nod goes to 1492 because of the catchy rhyme that Columbus sailed the ocean blue. Nonetheless, 1066 has to be a close second. I cannot ever remember not knowing that 1066 was the year William the Conqueror invaded England. Also, the coolest nickname in world history. In 1621, the final siege of Hotin occurred and the Polish armies (aided by Cossacks) held off the Turkish-Ottoman empire in what has been called the greatest military victory in Polish history. That has got to be a fairly low bar, right? I mean, no offense to the Poles, but it is not a civilization known for great military victories. It’s not their fault, sandwiched between the Russians, Germans, French, British and Turkey, Poland is kind of the Vanderbilt of European military power. Anchor Down. In 1887, the Yellow River in China flooded, killing between 900,000 and 2,000,000 people in one of the greatest natural disasters in history. Obviously, a great tragedy worthy of empathy to those whose lives were lost. Still, it raises concerns regarding Chinese mathematicians. A 1.1-million-person margin of error seems pretty significant. October 2021

“Say it ain’t so, Joe.” Those words were allegedly uttered by a young baseball fan as he watched his idol, Shoeless Joe Jackson, and seven other members of the Chicago White Sox, exit a Chicago courthouse, having been indicted on this day in 1920 for conspiring to throw the 1919 World Series. The Black Sox scandal remains the most notorious sports betting scandal of all time. Whether the words were ever actually uttered (it is disputed as an urban myth), the idiom has taken root in American culture. On September 28, 1940, celebrating his 21st birthday, Michigan halfback, Tom Harmon, rushed for four touchdowns, kicked four extra points and threw for a touchdown against overmatched California. Harmon had touchdown runs that day of 94, 72 and 85. On the last run, California fan Bud Brennan ran out of the stands and tried to tackle Harmon on the 3-yard line. Not surprisingly, he missed. In 1968 the Beatles “Hey Jude” hit number one on the American Charts and stayed there for 9 weeks. Nothing interesting to say about this except that, at various periods of my life, I have considered “Hey Jude” to be both my favorite and my least favorite Beatles song. Can someone please tell me if this is a good song. In 1975, on September 28, three men walked into the Spaghetti House Restaurant in Knightbridge, London. What started as a simple robbery lasted for nine days, turned into a bizarre political statement, and became known as the “Spaghetti House Siege.” Franklin Davies, a 28-year-old Nigerian student living in London, entered the Spaghetti House with his accomplices, Wesley Dick and Anthony Monroe, around 1:30 a.m. demanding all of the cash in the restaurant. Due to poor lighting, the employees were able to hide the suitcases containing the weeks profits (around £11,000) and one employee was able to sneak out a window to notify police. Within minutes, the restaurant was surrounded by law enforcement, the burglars forced the remaining employees into the basement, and the standoff began. In the intervening week and a half, Davies claimed to be representing militant minority groups and stated the act was a political statement. No groups stepped forward to validate his claims. He demanded release of two black prisoners being held in London, until he learned that they had already been released some time ago. Ultimately, the standoff ended when Dick and Monroe voluntarily laid down their arms and surrendered. Davies wrote a suicide note, declaiming the treatment of minorities around the world and proceeded to shoot himself in the stomach. He did not die, but was taken to a hospital and later stood trial where he was convicted and sentenced to 22 years. Lots of questionable decisions by Mr. Davies here. Finally, a nod to the absurd, on September 28, 1980, Jaromir Wagner became the first man to fly across the Atlantic standing on the wing of the airplane. I’m guessing he was the first, and only. Why would anyone ever try this? Anyway, now you know more about this date in history than you previously did. You’ve also wasted roughly 3 minutes of your day. Good luck getting that billable time back.

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

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

COVID-19, THE HOUSING CRISIS, AND HOW YOU CAN HELP Here at Legal Aid of East Tennessee (or “LAET”), we strive to be an asset to our community and a benefit to our neighbors. In service of this goal, I have decided to use this monthly opportunity to familiarize you with some of the services we offer to our clients. Hopefully, you will be able to assist people in need that you might not have been able to assist otherwise by guiding them to these services. The especially-timely focus of this installment is our housing attorneys and the work they do. For the last year and a half, our housing attorneys have been extremely busy trying to aid clients impacted by the COVID-19 eviction crisis. As the pandemic persisted, the practice of our housing attorneys changed dramatically. The CDC moratorium seemed to provide protection for our clients, but we saw a commensurate rise in alternative methods of eviction, such as the cancellation or disruption of essential services and lockouts. Meanwhile, we found ourselves working from home, filing injunctions remotely when we could and begging admittance to the clerk’s office when a remote submission was not allowed. At times, we searched for a judge to hear an emergency pleading. When our clients’ needs were greatest, our ability to help them seemed to be at a nadir. Eventually, it dawned on us that the COVID-19 pandemic and the changes to court orders and work adaptations it brought with it were not ending anytime soon. In a welcome turn of events, LAET was given a grant that allowed us to ask members of the Knox County and surrounding bar associations to work with us as contract attorneys. If we could find a nexus between a housing case and the pandemic, we were able to alleviate some of the pressure our housing attorneys were under by getting help from our fellow community attorneys. We were never so humbled to be a part of the East Tennessee legal community than when we received a multitude of answers to our call for help. Attorneys in Knox, Blount, and Sevier counties – as well as our other service areas in our East Tennessee offices – took housing cases upon themselves, working their magic for our clients to stop evictions and negotiate agreements with landlords so our clients would not be branded with an eviction on their record. Our Contract Attorney Program members quickly became an invaluable resource to our team. We can say with confidence that LAET is stronger with you as partners. For the other members of our legal community that serve as plaintiff landlords’ attorneys, your willingness to work with us during the moratorium and navigate the understandable frustration your landlords felt is greatly appreciated as well. At the end of the day, we could not be more grateful for the community that we work with. Now that the CDC moratorium has come and gone, we are left with only the emergency rental assistance program. We are committed to doing what we can to motivate our clients to file their applications as quickly as possible so they can secure help with past due rent. We are excited to (hopefully!) have some new positions within LAET in the not-too-distant future as new grants become available for us to use to help our housing clients. We are also taking inspiration from surrounding states and cities as they deal with the same eviction crisis we are faced with. For example, Kentucky and Nashville have robust eviction diversion programs, which could be implemented to great benefit in the Knoxville service area. LAET and several of our community partners have been discussing what best practices we have seen in other places that could benefit our clients in need. We are still struggling under the weight of the resurgent pandemic to meet the demand for legal assistance with housing matters. We welcome any volunteers from the private bar who would be willing to donate their time and energy to this very worthwhile cause. If you

are interested in taking on clients for direct pro bono representation, please contact me at ctorney@laet.org or call with questions or ideas at 865-251-4951. We are also hoping to staff a rotating phone advice clinic for housing matters to help alleviate the burden on our staff by shifting advice cases to this clinic. As of mid-September, one attorney has committed to doing one day a month and we would love to add other attorneys to the schedule. If you would be willing to commit to 2-3 hours a month to call clients about repairs, deposits, and general landlord/ tenant questions, please reach out. It would be a wonderful way to assist in-need populations in our area as we continue to press through this pandemic together

Upcoming Clinic Opportunities:

DICTA

Legal Advice For Veterans:

In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. Phone advice options available.

Wed. October 13 (12:00noon – 2:00pm) Wed. November 10 (12:00noon – 2:00pm)

To sign up, please use the form on the KBA Website or email ctorney@laet.org.

Legal Advice Clinic for Victims of Domestic Violence:

In person at the Family Justice Center in Knoxville.

Sat. October 16 (9:00am – 12:00noon) Note: The previous column incorrectly provided the date for this clinic as October 14, my apologies for the confusion To sign up, please email ctorney@laet.org

Faith and Justice Clinic:

In person at the Lennon-Seney United Methodist Church in Knoxville.

Sat. October 23 (9:00am – 12:00noon) General legal advice and a minority-owned business clinic

To sign up, please use the form on the KBA Website or email ctorney@laet.org.

Debt Relief Clinic:

In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville.

Sat. November 6 (9:00am – 12:00noon)

October 2021

TELL ME A STORY By: Cynthia M. Dietle Facebook

CHANGING THE WORLD: ONE OPPORTUNITY, ONE RELATIONSHIP AT A TIME How did you end up where you are today? Good grief, I have no idea. I was not a prolific Facebooker, nor am I tech savvy, but I believe in the grandiose, bold, idealistic idea of devoting my life to making the world a better place. I joined the FBI in 1995 to work in the Civil Rights Program and was fortunate to spend over 20 years primarily investigating hate crimes and law enforcement misconduct. I believe that one of the greatest crimes in our country is when communities, motivated by hate, turn on each other, or when our law enforcement officers violate the public’s trust and abuse those most vulnerable among us. Earlier this year my boss at Facebook, Roy L. Austin, Jr. convinced me that if I truly wanted to help the people of the world, not just in the United States, I would consider joining him at Facebook to help our three billion users find community and find their voice on our platform. That was a pretty persuasive recruiting pitch, and I’m honored to join him in the newly created Civil Rights Team at Facebook. What were the choices you made that, intentionally or not, led you to this place in your career? I kept moving forward but sometimes I had to be nudged. I left the FBI office in New York City after ten years because my supervisor convinced me that I should consider joining the leadership ranks of the FBI. He reminded me that out of 13,000 FBI agents, less than 200 work in the Civil Rights Program. If I wanted to have a greater impact in the country, I needed to lead the program forward. He was right. Several years later, when I was Chief of the Civil Rights Unit at the FBI, I had the opportunity to move to Boston to supervise the FBI’s Civil Rights and Public Corruption programs in Massachusetts, New Hampshire, Rhode Island and Maine. While I was perfectly content with my current job as Chief, my supervisor at the time, a female FBI executive, convinced me that being content was equivalent to stagnating. She convinced to me to get back on the street and put my leadership skills to work. She was right. Thankfully, my wife who was also an FBI agent always wanted to move to Boston, so I accepted the transfer. She was right that the northeast was a delightful place to raise our son Jackson. Well, until the snow came. Who helped you along the way? There were several female attorneys who guided me when I first moved to Knoxville. Heidi Barcus is a friend who convinced me to join Introduction Knoxville and the KBA when I arrived. Through those organizations, I met several individuals who have become dear friends and colleagues like Nancy Barger at Hunter Valley Farm, Lindsay Twardy at Oak Ridge National Laboratory, and Tasha Blakney who is quite the zealous advocate for her clients. Without Heidi, I would have been quite lost. On my own initiative, I sought out Brooklyn Sawyers Belk who at the time was an Assistant United States October 2021

Attorney and the only Black female federal prosecutor in our district. If she broke through that glass ceiling, I knew that she was someone I needed to meet. She has become a dear friend and she continues to be a guiding force for young attorneys, especially those of color, in East Tennessee. Did good luck or bad luck play a role? If so, what was it? I think of it more as a timing issue than luck. I was in a certain place at a certain time, and something happened that changed my life. I was in New York City, hosting my Hate Crimes Working Group meeting, when the first plane struck the Twin Towers. In the weeks and months that followed, I volunteered to be the FBI’s representative to help the victims and their families. These families changed who I became as an FBI agent as I began to listen to victims of crime and pay attention to what they needed. I’m also reminded that when I was eligible to retire from the FBI, I learned that the Matthew Shepard Foundation needed a programs director. I met Dennis and Judy Shepard in 2009 at the White House when a federal hate crimes law named after their son Matt and James Byrd, Jr., was signed into law by President Obama. I was well aware that in 1998, Matt Shepard was targeted and murdered in Wyoming because he was gay. At that time, federal criminal civil rights laws were insufficient to address the crime. Instead of withdrawing from society in grief, his parents became tireless advocates for the LGBTQ+ community and fought to change the law. The opportunity to join them in their fight for equality was an honor and I was so thankful they hired me. If you could go back and do something differently, what would it be? Nothing. My journey is my journey, and I’m incredibly fortunate to be where I am. I could name a hundred decisions that I would change, missed opportunities, doors that opened but I ignored, but then what? Would I still be where I am today? What would you tell someone who would like a similar position? Be humble. Listen. Observe. Be charitable. I know I’m very privileged and shame on me if I don’t help those less fortunate than me. Align yourself with others who are in a similar career and who are well respected in the community as bridge-builders, not as advocates of division. I’ve known Roy since 2008 and stayed connected to him through our work in civil rights. He is known in the civil rights space as an honest, uncompromising attorney and zealous defender of those who are marginalized in our country. Because of our work and our friendship, I’m in this position at Facebook where I can help the company help others.

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Tell Me A Story

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Name and Image and Likeness Oh My! Tennessee Legislation and NCAA Rules for Student- Athletes in the New Era of College Sports

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