On December 7, the Barristers gathered for their annual party and elections at The High Court, the rooftop of The Tribute. The event was sponsored by TriStar Court Reporting.
Join us in congratulating the Barristers’ newly-elected Officers:
President – Hon. Zachary R. Walden
Vice President – Charles S.J. Sharrett
Secretary/Treasurer – Jimmy Snodgrass
Members-at-Large - Matt Knable and Isaac Westling
It was also announced that Grant Williamson and Mariel Bough, Co-Chairs of the Diversity Committee, were presented with the Barristers’ Presidents’ Award for 2022.
Asking Permission for Forgiveness: Legal Challenges to the Student Loan Forgiveness Plan
Schooled in Ethics
Detrimental Reliance? Can A Subordinate Lawyer Sign A Complaint Based Solely on a Supervising Lawyer’s Instruction?
The Bijou Theatre Second Balcony
KBA Adopts Strategic Inclusion Plan
Elizabeth “Beth” Ford Receives KBA Governors’ Award
Judge Steven W. Sword Awarded Judicial Excellence Award By KBA
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).
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.
The ADR Section plans regular CLE throughout the year. If you have a CLE program topic or speaker suggestions, please contact the ADR Section Chairs Joe Jarrett (566-5393) or Betsy Meadows (540-8777).
The Bankruptcy Section plans CLE programs and helps coordinate volunteers for the Pro Bono Debt Relief Clinics. The next Pro Bono Debt Relief Clinic will be held on February 11, and volunteer registration is available at www.knoxbar.org.
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 David Headrick (363-9181) or Marcia Kilby (362-1391).
The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. If you have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (931-260-5866).
The Employment Law Section is intended for management and plaintiffs’ counsel, in addition, to in-house and government attorneys. If you have a program topic or speaker suggestions, please contact the Employment Law Section Chairs Howard Jackson (546-1000), Tim Roberto (6912777) or Mark C. Travis (252-9123).
The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880), Kendra Mansur (771-7192), or Jimmy Wright (637-3531).
The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. If you are interested in getting involved, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040).
The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. Join the Government & Public Service Lawyers Section for the upcoming CLE program “May it Please the Council: Effective Advocacy Before Local Government Bodies” on February 1. If you are interested in getting involved or have suggestions for CLE topics, contact Hon. Suzanne Bauknight (545-4284) or Ron Mills (215-2050).
The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you have suggestions for CLE topics, please contact Section Chairs Justin Pruitt (215-6440) or Mike Stanuszek (766-4170).
The New Lawyers Section is for attorneys within their first three years of practice, and any KBA member licensed since 2021 will automatically be opted-in to the section. The Welcome Reception for the KBA’s New Lawyers Section will be held on Tuesday, February 7, from 5:306:30 p.m. at Xul Beer Company (213 E 5th Ave). Please plan to arrive by 5:30 p.m. You will have an opportunity to connect with other attorneys who are new to the legal field and facing similar experiences in their first three years of practice. Barristers President Judge Zack Walden has generously agreed to speak at the start of the evening. If you would like to get involved in planning Section activities, please contact Section Chairs Kathryn Haaquist (525-0880) or Nicole Turbinton (221-7542).
The KBA Senior Section plans to start meeting again in 2023 for lunch. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307) or Sam Rutherford (659-3833).
The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tim Grandchamp (392-5936) or Brittany Dykes (214-7869).
Somewhere in the photographic history of my family exists a snapshot of five-year-old me sitting cross legged in front of the Christmas tree, wearing pajamas, blond hair shining, grinning ear to ear with the excitement and anticipation of whatever wonders I was about to discover. That is how it feels to be sworn in as President of this association. That little girl could have never dreamed of such an honor; in fact, I am not sure that little girl could have even dreamed she would go to college. I know she would have never dreamed that she would lead much of anything. Maybe the New Radicals were right when they sang of dreamer’s disease and warned “You get What you Give.” I am not confident that I have given nearly enough to receive what I have. I am humbled by the faith placed in me by the members of our bar as we begin 2023, and I am excited about all the things we will accomplish together.
This year, the KBA will continue the tradition of providing the highest level of service and to support to our members with emphasis on servant leadership, civility in public discourse, and equipping our members with the tools, resources, and professional development needed to better serve our clients and community. These are not revolutionary concepts. They are at the core of the work done every day by dedicated committees and sections of the KBA and the incredible KBA staff. I am in awe of the amount of work accomplished, often in the background, for the benefit of our association. Please join me in thanking them. We will revisit these areas of emphasis throughout the year in this column and elsewhere in the KBA’s work, but let’s begin with service and servant leadership.
It is no secret that the Knoxville Bar has a high reputation for civility and competency. We are all very blessed by that truth regularly. We must not become complacent. We must work to maintain and elevate those values for our own benefit, for the new lawyers who have recently been welcomed to the bar, and for all of those that will come to our profession in the future. In 2023, we will continue to have difficult conversations aimed at advancing our profession, improving the environment in which we practice law, and the mindset in which we do so. I hope we can always speak openly and authentically with each other.
Practicing law is a privilege. It is an honor. It is a monumental accomplishment to join our profession. It can also be difficult. I have found that the difficult moments can be eased in a number of ways, not the least of which is engaging authentically with one another. I hope each of you will make that a conscious goal for 2023. In the wise words of Jim Morrison: “A friend is someone who gives you total freedom to be yourself.” You, dear reader, whether we have met or not, are my friend, and with me, within your KBA family, you have total freedom to be yourself. Celebrate your uniqueness.
Bar service is one of the mechanisms that I have learned gives me great peace when the practice of law is challenging. Engage with me, engage with the bar. Renew your dues and join a section or committee. In doing so, you will not only better the profession, but your wellbeing, and will establish a network of other lawyers on whom you can call when faced with professional challenges, unfamiliar legal issues, or just selfdoubt. If you are uncertain who to call, please reach out to me or the staff; there is unquestionably someone in this organization who stands
ready to be of service. If you want to be of greater service to our bar but are uncertain where your talents might be best utilized, again, reach out and we will help you find the right fit.
If you cannot commit to serve on a committee or section, or even if you do, there are other ways you can (and many of you do) serve our profession. If there is a topic of interest you would like to see addressed in a DICTA article or CLE, let us know. If you meet a new lawyer in our community who has not been clued in to the KBA community, take the time to educate them about all the services the KBA provides. This year there are two new member benefits: Decisis, which provides a free-to-members intuitive legal research tool, and the CLE easy pass, which will allow members to pay $350 for 15 hours of CLE through the KBA’s in-person and virtual events. Tell them how the KBA has served you and given you opportunities to serve. Give them my number if they need more encouragement. This admitted bar junkie is always ready to promote our association! If nothing else, meet your fellow lawyers with authenticity, openness, and a servant’s heart. The blessings of our bar will flow through you.
Here’s to 2023! Let’s start discovering the wonders it will bring, together!
By: Kelly Street Egerton, McAfee, Armistead & Davis, P.C.
If you’ve never visited the Second Balcony of the Bijou Theatre, I’ll do my best to describe it for you.
From the lobby, a side hallway leads to a stairwell, where you climb three flights of stairs. At the top, you pass through a doorway that remains locked most of the time. The sagging floorboards creak beneath your feet. Most of the original seats are broken or gone, and you can see the holes where the seats were bolted down. An elevated floor area, directly behind the balcony rail, is probably the best place to sit and offers an unobstructed view of the stage. You wouldn’t want to go up much higher. In the top-most reaches of the Second Balcony, the view is limited by load bearing supports, the balcony rail, and the ceiling of the Bijou itself.
Down in the deep well of the auditorium, and in the balcony below you, are the backs and shoulders of 700 other patrons. You’re in the balcony above the balcony. Three stories up.
Performances sound great here, as they do anywhere in the theater, and for good reason. The people who designed the Bijou didn’t have modern amplification. They relied instead upon the principles of acoustics, which are nearly perfect here. Dust motes hang in the air around you. In the early days, this part of the theatre would have been unbearably hot and filled with cigarette smoke. Now, it’s filled with lighting equipment, aimed at the stage, and some metal folding chairs for the crew. If you find yourself here during a show, as I have, the experience is memorable.1 There’s the show itself, of course, but also there is something lonely, something grave. Having been closed to the public for so many decades, the Second Balcony is a place that invites contemplation and remembrance. Many people have been here before you.
The Bijou opened in 1909. It was built onto the old Lamar House Hotel, which was originally constructed in 1817.2 From 1909 until the Bijou was integrated in the 1960s, the Second Balcony was the only place African Americans could sit. Back then, African Americans used a separate entrance, a separate bathroom, and a separate ticket office. Today, as you walk down Cumberland Avenue near Gay Street you pass this area. The separate entrance and ticket office were located somewhere in the vicinity of the iron fire steps, past the stage door entrance.
It would be impossible for me here to provide even a short history of the Bijou Theatre and Lamar House Hotel. What I offer you instead is a challenge. The next time you’re at a Bijou show, look up. Think of the African Americans who sat in the Second Balcony while white people watched the show from below. Consider their struggle, and how, after centuries of slavery, a war was fought for their freedom. Think of how
– even after that war – society reorganized itself to exclude them. The Bijou is one of those buildings where we can still feel this history. It’s a place where we can remember the people who fought for civil rights and honor their experience. More than that, it’s a place where we can examine the structure of present society and consider how we can make it better.
I’ve had the pleasure of serving on the Bijou Board of Directors for several years, and during that time, I’ve seen a growing emphasis on telling the civil rights history of the Bijou. We have recently established a standing Historical Committee to focus on these issues, and the Second Balcony is vitally important in this regard. Maybe one day we will see the Second Balcony become a public space again, but not as a place of exclusion. My hope instead is that the Second Balcony could be a place where everyone – white and black alike – can honor and respect the history of African Americans in our community who suffered racism and segregation.
1 My first time in the Second Balcony was spent watching Sam Bush play his mandolin. To this day, that performance is one of the most memorable of my life.
2 Novelli, Dean; On a Corner of Gay Street: History of the Lamar House-Bijou Theatre, Knoxville, Tennessee 1817-1985, East Tennessee Historical Society (1986).
Operating expenses (“OpEx”) and common area maintenance fees (“CAM”) are two important items in any commercial lease, but they are often overlooked after the decision is made on how to split up these fees. Typically, operating expenses are calculated and allocated based on a gross, modified gross, or triple net basis, with the tenant being responsible for a percentage of CAM based on the percentage of the total property they occupy. The landlord will typically have standard lease language for each type of OpEx structure (i.e., gross, modified gross, or triple net) and for CAM breakdowns. Once the landlord and tenant agree that, for example, the rent will be calculated on a triple net basis with tenant responsible for its proportionate share of CAM, let’s say 20% for sake of illustration, landlord’s counsel will typically just pull standard OpEx and CAM language from its term bank and call it a day. On the other side of the table, tenant’s counsel will often fall into the trap of only ensuring that the OpEx provision contemplates a triple net structure and that the CAM breakdown correctly lists 20%. But taking this narrow approach to drafting and reviewing OpEx and CAM costs in commercial leases can open a pandora’s box of issues down the road as expenses begin to arise during the course of the leasing relationship and parties begin to second-guess who should be paying for what.
It is helpful to define the OpEx structures mentioned above and to provide more detail on CAM costs. OpEx, sometimes referred to as additional rent, is meant to generally refer to all expenses associated with a lease outside of the base rent being charged. Freedom of contract allows for the parties to decide how to break down OpEx, and the categories of gross leases, modified gross leases, and triple net leases are the three approaches that can be utilized.
In a gross lease, the base rent is all that the tenant will pay. The base rent will be higher than the base rent under a modified gross lease or a triple net lease because the landlord is paying for all additional rent itself and has (hopefully accurately) calculated these costs into one overall base rent rate that will allow the landlord to cover these costs and realize a profit on the lease of its space.
A modified gross lease is similar to a gross lease in that the base rent reflects some of the anticipated costs of additional rent items but differs in that some of the typical additional rent items will be paid directly by the tenant. As such, the base rent rate under a modified gross lease will be less than under a gross lease and more than under a triple net lease. For instance, a modified gross lease might provide that the base rent rate includes the costs of certain utilities, which landlord will pay directly, but not others, for which responsibility will fall on the tenant to pay directly.
A triple net lease will have the lowest rent rate of all because it anticipates that tenant will be responsible for all other costs associated with the lease and its operations thereunder. CAM, put simply, will encompass fees associated with areas that tenant has access to, and rights to use, in common with other tenants at a property. These can vary widely depending on the type of property, but typically include one or more of the following: parking lots or decks, shared hallways, public restrooms, costs associated with landscaping at the property, and costs associated with maintaining the property (but not associated with maintaining any premises exclusively occupied by any tenant of the property).
As you may be able to tell by these definitions, “costs” and “additional rent” and “common area” and “operating expenses” are broad terms that could lend themselves to encompassing, or not encompassing, all manner
of different items under a lease. The last thing either party wants is for an expense that they are responsible for to come as a surprise, especially in longer-term commercial leases. As such, whether you are drafting a lease for a landlord or reviewing a lease for a tenant, it is important to ask the following questions of your client:
• Can you list out all the expenses that you expect to be responsible for paying directly? Are there any expenses that you expressly do not expect to pay for?
• If the rent structure is not gross, what utilities will the tenant be responsible for paying (e.g., water, gas, sewer, electric, telephone, and/ or internet)? Are there cost savings associated, for instance, with the landlord obtaining utilities for the entire property and then billing them back to tenant for reimbursement or through separately metering the tenant’s premises to accurately split costs, or is it more cost effective for the tenant to contract for and pay for utilities directly? Will utility costs be wrapped up in the definition of CAM?
• How will OpEx and CAM costs be assessed: On a monthly basis per a set estimate? On a per square foot basis? Based on actual expenses incurred and then billed back to the tenant for reimbursement? If these costs are not billed back for reimbursement, how will estimated OpEx and CAM costs be reconciled and adjusted: On an annual basis? On a month-by-month case?
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For landlords, will there be a related manager entity performing services for the property whose fees should be recouped either through OpEx or CAM costs? For tenants, should management fees be excluded or capped?
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For tenants, based on past time in a building and relationship with the landlord, is it worth trying to push for a cap on OpEx and CAM cost increases year by year (e.g., inserting language that tenant shall not be responsible for the payment of any OpEx and CAM costs to the extent that they exceed X% of such costs for the immediately preceding lease year) to ensure that landlord is incentivized to keep costs reasonable and also not to use the property as a profit center? For landlords, has enough financial analysis been conducted to commit to a cap without the risk of eating excess costs down the road?
•
How will capital improvement costs be paid for? Will they be amortized over a certain period of time, which is more common under a long-term lease or for a large, anchor tenant, or will landlord eat these costs (which they may not want to do if they only have a leasehold interest in the property)?
At the end of the day, clarity is key when it comes to drafting and revising OpEx and CAM provisions in commercial leases. While it can seem tedious to specifically include or exclude certain items rather than just adding a note that the lease is, for example, a triple net lease and that tenant’s share of CAM is 20%, taking the time to fully understand who should pay for what will help avoid disputes down the road and keep your client happy.
In this month’s “Hello, My Name Is…,” we are featuring Darrius Dixon, Associate Attorney at Lewis Thomason, P.C., where his primary practice areas are healthcare, general civil law, and data privacy. Darrius is a graduate of Walter State Community College’s police academy and received an Associate’s degree in Public Safety and Law Enforcement. Darrius also received his undergraduate education at Middle Tennessee State University (MTSU), where he majored in Criminal Justice & Homeland Security with a double minor in Psychology and Political Science. He graduated from law school at the University of Tennessee College of Law. In addition to being a KBA member, Darrius is a member of the KBA Barristers, the TBA (Young Lawyers Division), the ABA, and the Hamilton Burnett Inn of Court, in which he is a Pupillage Team Leader. He also holds a certification as a Certified Information Privacy Professional with a concentration in the U.S. private sector (CIPP/US).
Why did you decide to go to law school?
Ultimately, it came down to assessing where I was in life and where I wanted to be. In doing that analysis, almost all roads led through getting my J.D.
teaching, retail, entertainment, security, and law enforcement. Each of those prior careers gave me something I could take away and apply to what I am doing now.
Where are you from?
I’m a “military brat,” so my answer is that I’m from “all over,” but my actual birthplace is Clarksville, Tennessee.
Have you traveled or lived internationally?
I spent a few years in Germany as a child when my dad was in the military. I have been to London and Amsterdam for summer study abroad in college.
What are your hobbies? Cooking, drumming, traveling, and video editing.
Who is the person who has had the most significant impact on your life?
My parents and sisters have had the greatest impact on me. They’ve believed in me—and put up with me— from the beginning. I’m not here doing what I am today without them and their love.
Describe a formative experience you had during law school that has impacted your career today.
My favorite and most formative part of law school was doing clerkships. I clerked at Owings Wilson Coleman, Tennessee Valley Authority, and Lewis Thomason, where I work now as an associate. The hands-on experience was invaluable.
What was your career prior to attending law school?
I had several jobs before becoming a lawyer. I worked in food service,
What sports teams do you cheer for?
Pro sports: Phoenix Suns, Tennessee Titans, and Nashville Predators. College sports: Tennessee Vols and MTSU Blue Raiders.
The path from grenades to the gavel taught Judge Sanchez how to stand up and fight. However, that path also impressed upon him how to choose his battles and look at the big picture. Most of us are more familiar with his trials in the courtroom, but his route to get to the bench presented its own kind of trials that have given him a unique perspective and prepared him for his newest role as Judge of Division II of the Criminal Court of Knox County. Judge Sanchez credits the influence of his family and his commitment for serving something bigger than himself as the most important motivators to his service.
Judge Sanchez grew up in Beverly, Massachusetts1 in public housing with his single mom and siblings. Crime wasn’t uncommon in his neighborhood, so it wasn’t always the most productive environment for encouraging academic and professional pursuits. Judge Sanchez’s mother didn’t care about those factors. She taught her children that they were in control of their lives and not simply subject to their environment. She exemplified that mindset by pursuing and obtaining her college degree despite her economic and environmental hardships. She consistently emphasized the importance of education, and she was “by the book” when it came to rules and discipline. Judge Sanchez attributes his success to the influence of his mother and grandfather2 who’s strictness helped him build character, integrity, and to stay out of trouble in a place where trouble was often easy to find.
Shortly after high school graduation, Judge Sanchez’s family relocated to Knoxville after his stepfather was transferred here for work. Judge Sanchez was excited to see a new part of the country, but he was not prepared for the culture shock. “Everyone here was so nice! They hold open doors! They care how you are!”3 His first job here was moving furniture for Bill Cox Furniture. It remains as one of the most physically demanding jobs he’s done and makes him appreciate the intellectual heavy lifting in the legal field!
Judge Sanchez has no qualms crediting his younger brother as an example and role model to him. After working at Bill Cox and taking some classes at Pellissippi State, he attended his brother’s graduation from United States Marine Corps Recruit Training. He knew then that he wanted to follow in his younger brother’s footsteps and become a Marine. He never considered any other branches. The uniformity, structure, camaraderie, discipline, and motivation of the USMC convinced him that there was no greater place to be. His enlistment took him to Afghanistan at the height of hostilities in the War on Terror. He served in motor transport, an often-dangerous role that included escorting general and flag officers, members of Congress, and other VIPs throughout Central Afghanistan.
Upon his return to the US, he was stationed in Norfolk where he had the opportunity to get an associate degree from St. Leo University. He followed that by pursuing his education at Old Dominion University, completing his bachelor’s degree in a year and a half. Before separating
from military service, he attained the rank of Sergeant. Judge Sanchez recalls his time in the Corps proudly and knows the relationships forged there are a different level of friendship and commitment. He learned teamwork, service above self, and the discipline that has since served him well.
A career in law enforcement, either DEA or FBI, was his intended next step, but a college professor encouraged him to consider law school instead.
Judge Sanchez returned to Knoxville and obtained his law degree from the University of Tennessee. He continued to reap the benefit of his military service when another former Marine, Sam Bounds, encouraged him to apply with the Knox County District Attorney’s Office. As a clerk, he worked his way up from building files to working on cases with the lawyers and performing hearings. Judge Sanchez got extensive experience with multiple prosecution units and loved the opportunity to get so much hands-on, practical experience as a student. After graduation, he was then newly-elected General Charme Allen’s first new hire as an Assistant District Attorney. Deputy District Attorney Sam Lee then took on a mentorship role with him, encouraging him, and giving him opportunities in special units focusing on trial work. Judge Sanchez served in the Domestic Violence, Felony Drug, and the Major Crime Units. Those assignments gave him broad involvement in jury trials, motion practice, search warrants, and more.
With this background and experience, he has learned the importance of maintaining balance in his life and taking advantage of rest when he can. Golf is his favorite pastime, and you can find him on the links in all seasons. He is married to Kimberly Sanchez, a computer clerk in the Criminal Court Clerk’s Office. They have a 17-year-old rat terrier named Hunter and three cats: Muffin, Splinter, and Donatello. They sometimes go golfing together, but they also enjoy the occasional TV series binge watch.4
On September 28, 2022, Judge Sanchez received the call that Governor Lee had appointed him to be Criminal Court Judge. He views the position both as an honor and a great responsibility. Judge Sanchez acknowledges that in every case, someone is going to leave disappointed. However, he will strive to serve with a focus on neutrality and objectivity. Additionally, he will be mindful to avoid all unnecessary delay and run his courtroom efficiently and fairly for all parties involved. He will treat everyone in the court with respect and decorum, and he expects that respect to be reciprocated and extended by adversaries to each other as well. Judge Sanchez looks forward to serving Knox County in a way that honors those who have positively impacted his life and in a way that positively impacts the lives of those he serves.
1 Beverly is near Salem for those less familiar with Massachusetts geography. Travelling to Salem for their renowned Halloween celebrations is encouraged!
2 His grandfather was a gunner on a destroyer in WWII. Strict was a given.
3 The Southern hospitality has somewhat compensated for the significantly fewer local fans of his beloved New England Patriots.
4 Recent recommended binges include Ozark and Outer Banks.
One of the most rewarding experiences of my membership and service in the Knoxville Bar Association has been serving on the Diversity in the Profession Committee (“DPC.”) This Committee, which has existed by various names since 1992, seeks to foster a climate of awareness of the particular needs of minority lawyers and to implement programs designed to ensure that every attorney will have the opportunity to succeed professionally and participate in the affairs of the legal community without regard to race, color, creed, religion, or gender. Realizing that I have had many professional opportunities and advantages that are not shared by everyone, it has truly been an honor and a joy for me to work with this Committee toward making our bar a more inclusive community that is open and welcoming to all. From the many projects the Committee works on year-round to the great friends I have made through the Buddy Match program at the annual fall CLE and Reception, I have certainly gotten much more out of my service to this Committee than I have put in.
During my KBA presidency in 2020, in the wake of nationwide events that brought much reflection and self-examination on longstanding issues of American race relations, particularly in and around the justice system, the DPC was infused with energy and new members who wanted to address these issues as they related to our Knoxville bar community. While many of the events that prompted these conversations have been tragic, even in our own community, the conversations we have had as a result have made me feel more optimistic than ever before about our own local bar. One particular conversation at a Committee meeting two years ago sparked an idea that has resulted in the KBA’s first Strategic Inclusion Plan.
Recognizing that inclusion and diversity are core values of the KBA, DPC members agreed that a formal plan in writing was necessary to provide structure, guidance, and accountability in the KBA’s efforts to continue making our bar a more inclusive community. Similar plans have been adopted by local bar associations and large law firms around the country. A subcommittee of volunteers was formed (including chair Brooklyn Sawyers Belk, and members Jamie Ballinger, Beth Ford, Alicia Teubert, Carlos Yunsan, and me,) to draft a strategic plan for the KBA to use in furthering its mission to foster a bar that is welcome to all. After nearly eighteen months of work on the Plan, spanning my KBA presidency and those of Cheryl Rice and Jason Long, the DPC recommended its adoption to the Board of Governors this fall, and on September 28, 2022, the Board unanimously adopted the Plan.
As then-KBA President Jason Long wrote in his introductory message to the Plan, “it is easy to say that we value diversity and inclusion but putting those ideas into practice requires a very intentional effort.” This Strategic Inclusion Plan is a sign of that intentional effort. The Plan essentially commits to paper the KBA’s existing philosophy regarding its core values of inclusion and diversity. This Plan may appear aspirational, but it is a call to continued action through programs the KBA already has in place, and a commitment to keep working on new ways to promote inclusion and diversity in our bar. Reading the Plan itself, you will see that it includes specific goals that will be tracked by the DPC. The DPC is also tasked with continuing the work it has been doing for years already, implementing the specific goals of this Plan and tracking to see how the KBA is meeting those goals. So, the legwork of this Plan will be largely performed by the DPC. But studies have shown that inclusion and diversity require top-down support, signaling that these are KBA values, not values of one member or one committee. That is why buy-in by the Board of Governors and our bar leaders is so important.
The Introduction to the Plan points out that “the KBA’s core values include inclusion and diversity and these core values require that the KBA promote civility and respect for the dignity and potential of each individual. The KBA seeks to advance inclusion of diverse populations and perspectives as it brings value to the Knoxville legal community. The KBA values and promotes collegial relationships and mutual respect among the KBA membership, Bench, and Bar, and acknowledges and seeks to address the needs of diverse populations within the Knoxville legal community, with culturally relevant and responsible initiatives.” The Plan’s goals include: promoting inclusion and diversity through governance and leadership; fostering a connected culture; building a diverse talent pipeline through community outreach and recruitment; and leveraging inclusion and diversity for mission effectiveness for the entire KBA. In order to accomplish these goals, the Plan offers next steps, including: being inclusive of all voices in the process; reframing the discussion for better results than past methods; educating the membership on best practices; and buy-in from KBA leadership, local firm leadership, and KBA members as a whole.
You can view the Strategic Inclusion Plan on the KBA website at https://www.knoxbar.org/?pg=DiversityandInclusionResources. I encourage all KBA members to review the Plan and join us in making our bar association welcome to all.
On December 9, 2022, the Knoxville Bar Association presented to Elizabeth “Beth” Ford the Governors’ Award. This award is designated as the association’s highest award. It recognizes those lawyers felt by the association to be role models for the profession.
Beth Ford is executive director of the Federal Defender Services of East Tennessee. She was one of the founding attorneys for this service which handles the great majority of all criminal cases in the East Tennessee federal courts. In addition, the office handles cases which occur on federal property, including the Veterans Hospitals, the Great Smoky Mountains National Park, Big South Fork, and Cherokee National Forest. Beth quickly rose to be the director, and under her direction grew the office from a staff of three attorneys to 18 attorneys. She supervises a total of 53 employees. Beth developed an efficient staff to handle the criminal cases of all types, and, importantly, developed a capital division. A capital division is something that is available in only a handful of federal defender programs throughout the United States. Consequently, from the office in Knoxville, capital cases have been handled in Ohio, Texas, Florida, Nebraska, Tennessee, and even at Guantanamo, as well as others. The program is well known throughout the country, and Beth has been called upon to be a member of various committees in Washington, D.C. regarding federal defender issues. She has argued before the United States Supreme Court and has met five Supreme Court Justices as part of her work. Simply, Beth has a national reputation.
Beth was raised in Cocke County, the daughter of a State Legislator. She attended Vanderbilt when she was only 16 years old for undergraduate and finished in three years. She received a law degree from the University of Tennessee. She returned to Cocke County in private practice. She was the first female lawyer in private practice in that county. It was not unusual for clients to ask if she was “the secretary.” Subsequently, she accepted a position with the Department of Human Services and traveled 17 counties, addressing issues relating to children. She then accepted a position with the Federal Defender Program and has been there since 1991.
Beth is active in the KBA, having served on the Board of Governors from 2019-2021, the Publications Committee since 2015, the CLE Committee since 2021 and the Diversity in the Profession Committee since 2021. As part of her work with the Diversity in the Profession Committee, Beth served on a subcommittee to draft the Strategic Inclusion Plan (SIP), which serves as the KBA’s acknowledgement
that inclusion and diversity are core values of the KBA, and it charges the Diversity in the Profession Committee to take action steps to institutionalize recognition and responsibility for inclusion and diversity throughout the KBA. Beth agreed to serve as Co-Chair of the KBA’s new Wellness Committee in January, 2022. The committee has hosted fitness activities and a financial wellness webinar, compiled resources to share with members, and sponsored a health fair and wellness conference that encouraged prioritizing mental health.
Outside of her legal work, she has been passionate about the YWCA, has mentored and taught at the University of Tennessee, and has been active in the Beck Cultural Center and the Messiah Lutheran Church. Beth is married to Mike Driskill. They have a son, Gavin, and daughter, Gwyn, and three grandchildren.
Beth is truly one of the best examples of a model person and a model attorney. She deserves the highest award of the Knoxville Bar Association.
Welcome to 2023. As with every new year, the idea of change is on everyone’s mind—at least until you realize that all the work you did not finish in 2022 has taken up adverse possession on your desk. There is no way to predict what 2023 may hold for you, your law firm, or your clients, but one of the most significant changes all of us may face is the exit of an attorney whether through retirement, disability, or an untimely passing. To date, no attorney has practiced law forever—not Thomas Jefferson, Learned Hand, or even Johnnie Cochran. And now that change is on everyone’s mind, it is time to look ahead and plan for this inevitable change.
Many lawyers have no estate plan in place at all and others have at best a piecemeal and disjointed plan. Every lawyer should have at a minimum a Will, Durable General Power of Attorney for Business Affairs and Healthcare, Living Will, and possibly other advanced directives. Your Will should identify an Executor to be in charge of the administration of your Estate. A lawyer’s Executor should probably be someone with familiarity with the practice of law and be sufficiently sophisticated to deal with the issues that arise after the death of a lawyer. Your spouse might be very savvy, but unless he or she is licensed to practice law, your spouse cannot take over your practice or be a co-owner of a law firm.1
On that note, if your Executor is not a lawyer, make sure you have a conversation with her or him about RPC 1.17 (Sale of Law Practice) and RPC 5.4 (Sharing Fees with Non-Lawyers) and how that affects any equity interest you may have in your Firm or in the real property or building that houses your Firm.2 Also make sure your Executor is familiar with whatever plan your Firm has in place to redeem your equity interest and any policies your Firm may have on the payout of AR or other collections as a benefit upon the death of an attorney. If your Firm does not have such a plan, then now is the time to get started on one.
If you are a solo practitioner or practice in a small law firm, the ABA recommends that you specifically include a designated successor attorney(s) to take over your practice or specific concentration areas of the practice in your estate plan.3 The Tennessee Supreme Court has addressed this as well in Rule 9, 29.9.4 Do consult with the designated successor attorney(s) during the planning process to make sure he or she is willing to take on that responsibility.
Hopefully, your Firm already has a plan to transition client relationships to other attorneys when retirement is on the horizon, but here are a few, additional tips to soften any transition—whether it is due to retirement, disability, or death.
Most lawyers are dutiful in retaining a calendar diary system that contains upcoming deadlines, statutes of limitation, and similar time limitations that are critical to client representation. However, that does not answer the question, “what needs to be done right now?” which is what your successors will be asking the walls of your office when you are not sitting there. My legal assistant and I have attempted to answer this
question by keeping a docket of every active case that lists the nature of the case, the court in which it is filed, documents that are required to be prepared and filed, the deadlines for filings, documents and other activities that have been completed on the file and any other information regarding a client’s file that would be helpful upon quick review to determine what needs to happen on the file and when. We maintain this docket in one single electronic file and it is updated daily.
Passwords. Your successors have to be able to find them. Even if you use software like Lastpass or other encrypted electronic format to retain all passwords, it is a good idea to retain a hard copy paper list of all user names and passwords for all personal and business electronic access information. Keep the list in a secure location, but make sure someone knows where it is just in case you can’t tell them. As passwords are updated or changed, update the list.
Who else is an authorized signatory on your firm’s operating and trust accounts? If you are a solo practitioner, there should be a second person. Similarly, who else knows where all of the important contact and account information is stored for the relationships that are vital to you and your Firm: clients; PO box or other mail service; bookkeeper or accountant; landlord; firm entity documentation and filing deadlines; office property; general, professional liability, and workers’ comp. insurance carriers; health insurance, disability and life insurance providers; leases (office space & equipment) and the term remaining on each; operating and trust accounts; individual trust account ledger access information and trust account activity information; business credit card; location of all paper files, and access codes and indexes for active and retired files; identity of designated successor attorney(s); and location of your Wills, Trusts, and other estate planning devices. This is just a summary of the information that should be maintained to assist with the transition of an attorney’s practice.
Yes, it is a lot of work. But let’s face it: you aren’t going to go to the gym every day in 2023. So, why not make a resolution that you can keep? Look ahead, plan for the day that you will no longer be practicing law, and take some of the burden off your loved ones, clients, and law partners.
1 Tenn. R. Prof. Conduct 5.4.
2 Keep in mind that, pursuant to TCA § 31-2-103, real property vests automatically at death in the testamentary heirs of a decedent unless the Will specifically makes the real property part of the Probate Estate and gives the Executor custody and control with power of sell of the real property. If you, as an individual, own the real property or building that houses your Firm, this “automatic vesting” statute could make things very complicated very quickly because your heirs may suddenly become your Firm’s landlord—or be co-owners of real property with your law partners. By then, it will be too late to “get your house in order,” so you may as well plan for it now.
3 American Bar Association, Succession Planning, https://www.americanbar. org/groups/professional_responsibility/resources/lawyersintransition/ successionplanning/, last visited Dec. 8, 2022.
4 Tenn. S. Ct. R. 9, 29.9. “An attorney may designate in advance another attorney by contract, appointment, or other arrangement to handle or assist in the continued operation, sale, or closing of the attorney’s law practice in the event of such attorney’s death, incapacity or unavailability.”
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.
For many years, a specially appointed committee has annually considered the Knoxville Bar Association’s Judicial Excellence Award. The award has very rarely been given. Presenting an award to a sitting judge raises sensitive issues. Only after careful consideration by the committee, and a vote of the Knoxville Bar Association elected governors, is the award presented. The award is not given based upon a judge making “appropriate” rulings. It is given only with consideration of the entire body of work of a judge, including community service, and only where it is felt the work and service of the judge is outstanding.
The service and work of Judge Steve Sword is outstanding. At the annual meeting on December 9, 2022, the Association presented Judge Sword with the Judicial Excellence Award.
Steve Sword is a born leader. He is dedicated to his position. Police and Sheriff’s Officers have his cell number and many relate that he is always available. In fact, he came out of his daughter’s recital to sign a warrant! If anyone in the criminal justice system has a question, Judge Steve Sword is the first person asked. Importantly, he is available. He works hard and has tried over 300 cases.
When the COVID crisis hit, Judge Sword really stepped forward. In the criminal justice arena, there are statutes that apply to the timing of trials and address victims’ rights. The issues created by COVID could have caused very serious problems. However, Judge Sword stated, “Let’s get this done.” A special committee was formed with representatives of the Attorney General’s office, Defense Bar, Sheriff’s Office, Public Defender, and others. The committee met at least weekly and crafted methods to keep the system fully operational. Some trials were handled by Peams (Zoom). Others were in person, but under his leadership, Judge Sword’s courtroom became the first to be equipped with I.T. equipment, which helped with the safe conduct of the trials. Importantly, Judge Sword was available to help with the significant problems caused by COVID. He was at work “sun up to sun down” and most weekends. The system was kept successfully moving and was a model for other courts.
About Judge Steve Sword personally . . . he was raised in Bluefield, West Virginia. He came to college in Bristol. There, he received his degree in history and Bible and religion. He was then offered a Fellowship in Archeology, one of his interests. After consideration, he decided not to be the next Indiana Jones, but went to the University of Tennessee Law School. He interned at the Knox County District
Attorney’s Office, and that experience had a strong direction for his future. He became an Assistant District Attorney and practiced in juvenile court. After 8 years, he moved to criminal court, emphasizing cases involving abuse of children.
He was appointed to the Criminal Court Bench in 2011 and has served continuously since.
He has been very active in the community. He was Chairman of the Board of Directors of the Knox County Adolescent Pregnancy Prevention Initiative, Co-Chair of the Criminal Justice Section of the Knoxville Bar Association, served on the KBA Board of Governors, is a Chaplain of the American Legion Post No. 2, and Lay Leader and Elder in his church.
Being inspired by the events of September 11, 2001, he determined to give back to the community. He joined the U.S. Army Reserves and served as a Captain in the Judge Advocate General Corps providing numerous hours each month of legal services to the military. He served for 10 years.
He met his wife, Alice, in school. Their daughter, Lucy, is a student at Mississippi State, and Annalee is a student at West High School.
What is his hobby? He is an avid bicyclist. It has been estimated that he travels over 10,000 miles by bike each year!
Judge Steve Sword is a special judicial officer and a special lawyer. He is deserving of the Knoxville Bar Association’s Judicial Excellence Award.
On August 24, 2022, President Biden delivered on a campaign promise to cancel at least $10,000 of student debt for all federal loan borrowers by announcing the Student Loan Forgiveness Plan.1 Under the three-part Plan, borrowers earning less than $125,000 and married couples earning less than $250,000 receive up to $10,000 in debt cancellation (and up to $20,000 for Pell Grant recipients).2 The Plan also extends the student loan repayment freeze though December 31, 2022, and proposes loan repayment rule changes that cap undergraduate loan repayments at 5% of a borrowers’ discretionary income; raises the nondiscretionary income threshold; shortens the loan forgiveness period; and subsidizes interest on borrowers’ loan balances.
Before the Plan was revealed, even allies questioned the Biden Administration’s authority to cancel student loans.3 But as the saying goes, it’s easier to ask forgiveness than permission—or is it? A flurry of lawsuits ensued and now the $400 billion Plan’s fate is in the hands of the courts.4 This article provides a basic overview of the statutory basis for the Plan and highlights two pending lawsuits seeking to vacate it.
If Congress controls the nation’s purse, how can the Executive unilaterally forgive $400 billion in student loans? According to the Biden Administration, the answer is the Higher Education Relief Opportunities for Students Act of 2003 (the “HEROES Act”).5 Enacted in the wake of 9/11 and at the outset of the wars in Afghanistan and Iraq, the HEROES Act authorizes the Secretary of Education to “waive or modify any statutory or regulatory provision applicable to” federal student loan programs “the Secretary deems necessary in connection with a war or other military operation or national emergency.”
The Department of Education, in a memorandum accompanying the Plan’s announcement (the “Cardona memorandum”), cites the HEROES Act’s broad authority to “waive or modify” as the Secretary “deems necessary” to include the power to reduce or cancel principal student loan balances and provide for cancellation on a categorical or class-wide basis, rather than a case-by-case basis.6 Notably, the Cardona memorandum’s conclusions contradict a Trump Administration memorandum analyzing and limiting the Secretary’s unilateral authority to cancel loans under the Act (the “DeVos memorandum”).7
Two of the many legal challenges to the Plan8 are particularly noteworthy—Nebraska v. Biden, where the Supreme Court granted certiorari to review the Eight Circuit’s nation-wide injunction of the Plan, and Brown v. U.S. Department of Education, where a district court in Texas has vacated the Plan.9 Nebraska v. Biden
Nebraska involves six states’ attempt to enjoin the Plan—Nebraska, Missouri, Arkansas, Iowa, Kansas, and South Carolina. Missouri asserts that MOHELA, a quasi-state entity that services student loans, will lose interest revenue because the Plan encourages borrowers to consolidate their FFELP loans (forgiveness ineligible loans) into DLP loans (forgiveness eligible loans). Arkansas on behalf of ASLA, the state’s
authority that services FFELP loans, and Nebraska on behalf of a state investment fund that invests in FFELP loans, assert similar financial harm. The remaining states, which have adopted the federal definition of taxable income under which federal student loan discharges are not taxable until January 1, 2026, contend that the Plan would result in future lost tax revenues.
The Eastern District of Missouri dismissed the States’ claims for lack of standing, holding that Missouri lacked standing because of the financial separation between the state and MOHELA and that Arkansas and Nebraska failed to articulate ongoing injuries because loans consolidated after September 29, 2022, are not eligible for loan forgiveness. The court further held that the States’ alleged injuries from future lost tax revenues were speculative.
The Eight Circuit reversed. Focusing on Missouri, it held that MOHELA is an arm of the state because of its state-appointed board and its financial obligations to the State, and that even if MOHELA was not an arm of the state, Missouri has a significant financial interest in the entity’s financial discharges. The court then enjoined the Plan based on the substantial irreversible impact it would have on the States.
On December 1, 2022, the Supreme Court declined to lift the injunction but set the case for expedited briefing with oral argument in February 2023.10 Brown v. U.S. Department of Education Brown, in the Northern District of Texas, is the only challenge to the Plan to reach a ruling on the merits. The plaintiffs, two student loan borrowers—one ineligible for forgiveness because her loans are commercially held and the second ineligible for the $20,000 maximum forgiveness because he had not received a Pell Grant—asserted that the Plan procedurally and substantively violates the Administrative Procedures Act (“APA”).
The plaintiffs contended that the HEROES Act’s exception from the APA’s notice-and-comment requirement only applies where the Secretary takes a statutorily authorized action. Because loan cancellation is not authorized by the statute and the Plan was not subjected to notice and comment, the APA was procedurally violated. The district court rejected this argument.
The plaintiffs next argued that the Plan’s vast economic and political significance implicate the major-questions doctrine, which requires clear Congressional authorization for agency action. The district court agreed based on findings that that the Plan’s $400 billion price tag satisfied the doctrine’s economic prong and Congress’ multiple failed attempts to pass loan forgiveness satisfied the political prong.
The court then found that the HEROES Act lacked clear Congressional authorization. First, the Act does not mention loan forgiveness. Second, the COVID-19 pandemic, which President Biden declared as “over” prior to the Plan’s establishment, likely does not constitute a national emergency sufficient to empower the Secretary to act under the statute. Third, citing the Devos memorandum, it found that past agency interpretations of the statute do not confer categorical cancellation authority. Accordingly, the district court held that the Secretary exceeded his power under the Act and vacated the Plan. The
In mathematics, chaos theory is concerned with identifying the “point at which stability moves to instability or order moves to disorder.”1 In election law, Moore v. Harper may be that point.2 The case has been described as an “800-Pound Gorilla,”3 and the “single most important case on American democracy.”4 Time will tell if either description is apt, but the case has the potential to drastically change election law. At issue is the Independent State Legislatures theory “ISL.” Specifically, the Court will consider whether a state court: [M]ay nullify the regulations governing the “Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,” and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.5
The ISL rests on a narrow interpretation of Article I’s Elections Clause6 and Article II’s Electors Clause.7 Its proponents maintain that since the “Times, Places and Manner” of congressional elections “shall be prescribed in each State by the Legislature thereof” and electors are to be chosen “in such Manner as the Legislature thereof may direct,” legislatures act independently when regulating federal elections. In other words, free of state-level checks and balances like judicial review and even perhaps the gubernatorial veto.
The seeds of the ISL were sown with a big lie. Charles Pinckney was South Carolina’s junior delegate to the constitutional convention. (He later claimed he “drew up” the Constitution.)8 At the convention, Pinckney submitted a plan for the government but when the documents from the convention were unsealed for official compilation, his plan was missing. Upon request by the compilers, he submitted a copy of his plan. The text of this “Pinckney Plan” was suspiciously close to the final text of the Constitution.9 And, in this plan, the Elections Clause granted authority to “each State” to regulate congressional elections rather than to legislatures. This purported change in wording is the genesis of the ISL. ISL proponents argue that, since the founders rejected the language of “each state” in favor of “legislature,” the enacted language must have a narrower meaning. Sidestepping issues with this mode of interpretation, the problem is that this “Pinckney Plan” was a fake.10
The first appearance of the theory in a Supreme Court case was in Smiley v. Holm 11 In Smiley, Minnesota’s legislature redrew its congressional maps following the 1930 census. The governor vetoed the maps, and the legislature asserted the maps could take effect without the governor’s signature. A Minnesota citizen sued, and the Minnesota Supreme Court agreed with the legislature, holding the Elections Clause gave sole power over redistricting to the legislature. The Supreme Court reversed, reasoning that even when acting under the Elections Clause, legislatures “must [act] in accordance with the method which the state has prescribed for legislative enactments.”12
The ISL would surface again in Chief Justice Rehnquist’s Bush
v. Gore concurrence.13 Joined by Scalia and Thomas, the concurrence would hold that the Florida Supreme Court’s ordered recount violated the legislature’s Article II authority because the case fell within the “few exceptional cases in which the Constitution . . . confer[red] a power on a particular branch of a State’s government.”14 In such cases, the concurring justices argued, “the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance.”15
More recently the Court denied certiorari in a challenge to the Pennsylvania Supreme Court’s decision to extend an election deadline. Justices Alito, Gorsuch, and Thomas agreed with the Court’s denial but did so only because it was too close to the election.16 In their view, however: The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”17 They would have preferred “to issue a ruling on the constitutionality of the State Supreme Court’s decision” that likely “violate[d] the Federal Constitution.”
In another 2020 elections case involving Wisconsin’s absentee ballot deadline, the Court declined to vacate a circuit court’s stay of an order that would have altered the rules too close to the election.18 Justice Kavanaugh concurred but added that “[t]he text of Article II means that ‘the clearly expressed intent of the legislature must prevail’ and that a state court may not depart from the state election code enacted by the legislature.”19
Finally, the now-infamous Eastman Memo outlined an expansive version of the theory.20 According to Eastman, a vice president counting electors after a presidential election should only count slates certified by legislatures, arguing that because legislatures act independently when regulating federal elections, “executive-certified slate[s]” of electors were unconstitutional.21 Using the veneer of legitimacy that the memo created, the former president publicly pressured his vice president to reject certain states’ slates.22 This directly led to the January 6 Insurrection.
In Moore, a group of North Carolinians sued to challenge the legislature’s redistricting map.23 They alleged violations of various provisions of the state constitution including the “Free Elections Clause” because the map was a partisan gerrymander.24 The plaintiffs sought declaratory judgment that the maps were unconstitutional, an injunction from their implementation, and that the court “[e]stablish a new congressional districting plan” should the legislature fail to do so.25 The case traveled a complicated procedural road involving initial and remedial phases, a removal to, and subsequent remand from, federal court, a supplemental complaint, and two trips to the North Carolina Supreme Court.26
Eventually the legislature drew new maps. The trial court found
the maps were “intentional . . . partisan redistricting,” but ruled for the defendants because it found partisan gerrymandering was a nonjusticiable political question.27 The North Carolina Supreme Court held that the news map violated the state constitution’s Free Elections Clause, agreeing with the lower court’s characterization of the new map as an “egregious and intentional” exercise in partisan gerrymandering.28 The court enjoined the implementation of the map in the 2022 elections and ordered the trial court to adopt a new map.29 The trial court eventually adopted a map drawn by three experts it appointed.
True to form, Moore v. Harper’s procedural history in the Supreme Court has not been without controversy. In March, the Court declined to stay the court-drawn map.30 That denial drew a 4-page dissent by Justice Alito that was joined by justices Gorsuch and Thomas.31 The Court eventually granted certiorari and heard argument on December 7, 2022.32 Docketing of the case drew widespread attention and a flood of amici, mostly arguing against the ISL.33 Oral argument was at times contentious, but the Court settled into three definite camps.34 On one end of the spectrum, Justices Alito, Gorsuch, and Thomas appeared receptive to adopting some version of the ISL.35 On the other, Justices Kagan, Jackson, and Sotomayor were highly skeptical.36 The remaining justices fell somewhere along the middle.37
While predicting the way the Court will rule by reviewing oral argument transcripts is fraught with peril, it is possible to discern three possible outcomes.
First, the Court could stay the course. In addition to Smiley, the Court nibbled around the ISL in Arizona State Legislature v. Arizona Independent Redistricting Commission and Rucho v. Common Cause 38 In Arizona Independent Redistricting Commission, the Court upheld the creation of an independent redistricting commission holding that the Elections Clause was no cover for legislatures to behave in ways contrary to their own constitutions when regulating federal elections.39 Then, more recently in Rucho, the Court held that claims of partisan gerrymandering were nonjusticiable political questions.40 Interestingly, though, the court noted state constitutions could “provide standards and guidance for state courts to apply” in those cases.41 Thus by adhering to the Smiley-ArizonaRucho line of cases, the Court could uphold the North Carolina Supreme Court decision.
Secondly, the Court could metaphorically split the baby. At oral argument, Justice Kavanaugh voiced his concern that the version of the ISL being advocated was broader than the version Chief Justice Rehnquist described in Bush v. Gore because that version allowed for state judicial review.42 So, the Court could affirm the lower court’s decision that the maps were unconstitutional, but hold that the remedy, courtdrawn maps, went too far. This would introduce a weak ISL into election law jurisprudence while preserving judicial review.
Finally, the Court could adopt a full-throated embrace of the ISL. Justices Alito, Gorsuch, and Thomas have voiced their support for this position at oral argument43 and during other recent elections cases.44 Under this scenario, state legislatures would be limited only by the political process because the Elections Clause also gave Congress the authority to “alter such Regulations” as an independent state legislature would create. Such a ruling would create separate bodies of law for regulations of federal elections and state elections. The former would not be subject to state judicial review, while the latter would.
The fate of the Independent State Legislatures theory now lies with the Supreme Court. Whether the election law is currently stable or orderly is in the eye of the beholder, but whether Moore v. Harper
becomes an example of legal chaos theory will depend on which road the Court takes.
1 D. Straussfogel, C. von Schilling, in International Encyclopedia of Human Geography, 2009 https://www.sciencedirect.com/topics/earth-and-planetary-sciences/chaostheory.
2 Moore: No. 21-1271 (argued Dec. 7, 2022).
3 Adam Liptak, Supreme Court May Hear ‘800-Pound Gorilla’ of Election Law Cases, N.Y. Times, (June 6, 2006), https://www.nytimes.com/2022/06/06/us/politics/ supreme-court-state-legislatures-elections.html.
4 Mark Sherman, Supreme Court Weighs ‘Most Important Case’ on Democracy, AP News, (Dec. 4, 2022), https://apnews.com/article/us-supreme-court-north-carolinalegislature-50f99679939b5d69d321858066a94639.
5 Moore v. Harper, order granting cert, (internal citations omitted), https://www. supremecourt.gov/docket/docketfiles/html/qp/21-01271qp.pdf. Although Moore v. Harper is concerned with legislatures’ authority under Article I, the same analytical framework is applicable to legislatures’ authority to regulate presidential elections pursuant to Article II. As such, this article will discuss both exercises of authority.
6 U.s. CoNsT art. I, § 4.
7 U.s. CoNsT art. II, § 1.
8 Congressional Speech by Charles Pinckney (Feb. 13, 1821), 37 ANNAls of CoNg 1129, 1134 (1821) (available at https://memory.loc.gov/ammem/amlaw/lwaclink. html).
9 Lynn Uzzell, The Deep South’s Constitutional Con, 53 sT mArY’s l.J. 711, 711, 730 (2022) (noting it was likely the 1818 Pinckney plan was “largely plagiarized from” an early draft of the Constitution).
10 Ethan Herenstein & Brain Palmer, Fraudulent Document Cited in Supreme Court Bid to Torch Election Law, PoliTiCo, (Sept. 15, 2022, 4:30 AM), https://www.politico. com/news/magazine/2022/09/15/fraudulent-document-supreme-court-bidelection-law-00056810. For a more academic exposition on the subject, see Lynn Uzzell, The Deep South’s Constitutional Con, 53 sT mArY’s l.J. 711 (2022).
11 See Smiley v. Holm, 285 U.S. 355, 361 (1932).
12 Id. at 367.
13 See Bush v. Gore, 531 U.S. 98, 112 (2000) (Rehnquist C.J. concurring) (Although Moore v. Harper deals with Article I and Bush v. Gore dealt with Article II, from an analytical perspective, the theory would yield the same result).
14 Id.
15 Id. at 113 (emphasis added).
16 Republican Party of Pennsylvania v. Boockvar, 208 L. Ed. 2d 266, 141 S. Ct. 1, 2 (2020) (statement of Alito, J.).
17 Id.
18 Democratic Nat’l Comm. v. Wis. State Legislature, 141 S. Ct. 28 (2020).
19 Democratic Nat’l Comm. v. Wis. State Legislature, 141 S. Ct. 28, 35 n.1 (2020) (Kavanaugh, J. concurring).
20 Trump Lawyer’s Full Memo on Plan for Pence to Overturn the Election, (Sept. 21, 2021, 5:47 PM), CNN https://www.cnn.com/2021/09/21/politics/read-eastman-fullmemo-pence-overturn-election/index.html (asserting Article II, § 1, cl. 2 of the U.S. Constitution assigns to the legislatures of the states the plenary power to determine the manner for choosing presidential electors).
21 Id.
22 Brian Naylor, Trump Calls on Pence to Reject Electoral Votes. Pence Says He Won’t, (Jan. 6, 2021), NPR https://www.npr.org/sections/congress-electoral-college-tallylive-updates/2021/01/06/953998465/trump-calls-on-pence-to-reject-electoralvotes-pence-says-he-wont.
23 Compl. ¶¶ 120-144, Harper v. Lewis, No. 19-cvs-12667 (N.C. 2019).
24 Id. ¶¶ 120-128.
25 Id. at 43, ¶(c) (emphasis added).
26 For a detailed background of this complicated procedural history, see Moore v. Harper (Formerly Harper v. Hall), Am. Redistricting Proj. (Dec. 7, 2022), https:// thearp.org/litigation/moore-v-harper/ (last visited Dec. 8, 2022).
27 Final Judgment, 242-248 Harper v. Hall, Nos. 21-cvs-015426, 500085 (N.C. 2022); See also, generally, Rucho v. Common Cause, 139 S.Ct. 2484 (2019).
28 Harper v. Hall, 868 S.E.2d 499, 510, (N.C. 2022) cert. granted sub nom; See also Moore v. Harper, 142 S. Ct. 2901 (2022).
29 Id. at 559.
30 Moore v. Harper, 142 S. Ct. 1089 (2022).
31 Id. (Justice Kavanaugh filed a concurrence in which he agreed with the Court’s denial but also with Justice Alito’s position that the case raised important issues).
32 Moore v. Harper, 142 S. Ct. 2901 (2022).
33 Moore v. Harper, Docket for 21-1271, https://www.supremecourt.gov/docket/ docketfiles/html/public/21-1271.html. PDF download; See also Helen White, As Moore v. Harper Takes Shape, a Broad Coalition Takes Aim at the Independent State Legislature Theory, JUsT seCUriTY, Oct. 28, 2022 https://www.justsecurity.org/83831/
would like to thank the following firms, organizations and individual volunteers who continue to support our Mobile Meals project by delivering approximately 2,000 meals over the course of roughly 160 days in 2022:
Egerton, McAfee
Penny Arning Victoria Dishner
Eldridge & Blakney Tasha Blakney Michael Rogers
Gentry, Tipton & McLemore John Kizer
Hodges, Doughty & Carson Josh Ball Bill Coley Lisa Hall Albert Harb Wayne Kline James Parker John Taylor
Kramer Rayson Lucas Fishman
Bryce Fitzgerald Erica Green Andrew Hale Katie Overton Camille Sanders Jimmy Snodgrass Nat Wing
Lewis, Thomason, King, Krieg & Waldrop
Mark Castleberry Darrius Dixon Jared Garceau
Ben Jones
Sallie Papajohn Neese
Mitchell Panter Ryan Shannon Hayden Short Ariane Sowa Hookman
Jeff Thompson Mikel Towe
London & Amburn Libba Bond Chuck Sharrett
Paine, Tarwater & Bickers Michael Deel Morgan Fitzgerald Kathryn Haaquist Tom Jarvis Kelsey Osborne Kendell Vonckx
Smoky Mountain Paralegal Association
Cheryl Denton Kathy Herd Michelle Jephcott Chelsey Johnson Barbara Miller Kelley Myers Arlene Shoemaker Kati Wheatley
Tennessee Court of Criminal Appeals
David Metler Hon. Norma Ogle Kayla Swiney Hon. Kelly Thomas
Tennessee Valley Title Insurance Company
Ryan McNally Katie Moore Nathan Shipley
University of Tennessee Office of the General Counsel
Mike Fitzgerald Harold Pinkley Josh Walker
Woolf, McClane, Bright, Allen & Carpenter
Nic Arning Keith Coates Chad Hatmaker Dean Howell Kate Hutcherson Robert Noell Sonny Schow Gavin Shepherd Paul Shuman Aaron Spencer Kaitlin Tweel
Sarah Atkinson Charles Gault David Headrick Luke Ihnen Jess Maples Katie O’Neal Patrick O’Neal Alice Thornton Jerry Thornton Courtney Walker
For more information on the Mobile Meals Program, please visit http://www.knoxseniors.org/mobile.html
If you missed the 2022 edition of the Ethics Bowl last December, you missed a lively and informative program. One of the liveliest exchanges came in response to the following question:
Lawyer Malia is a new associate working under the direct supervision of Lawyer Estelle. Lawyer Estelle presents a Complaint to Malia and instructs her to sign it as second counsel. Malia has not read the Complaint, nor does she know anything about the client or the facts. Unbeknownst to Malia, the Complaint is frivolous. If Malia signs the Complaint, will she violate the Tennessee Rules of Professional Conduct?
A. No, because she acted at the direction of her supervisor and did not know that the Complaint was frivolous.
B. No, because filing a frivolous Complaint does not violate any Rule of Professional Conduct.
C. Yes, because Malia has an independent professional duty to ensure that the Complaint is not frivolous.
D. Yes, although she is not subject to discipline.
The majority of the audience thought the correct answer was “C” because every lawyer has an independent professional duty to ensure that pleadings filed under their signature are not frivolous. However, the correct answer was “A.” Here is the explanation for that answer:
Comment [1] to Tennessee RPC 5.2 provides: “Although a lawyer is not relieved of responsibility for a violation by the fact that the lawyer acted at the direction of a supervisor, that fact may be relevant in determining whether a lawyer had the knowledge required to render conduct a violation of the Rules. For example, if a subordinate filed a frivolous pleading at the direction of a supervisor, the subordinate would not be guilty of a professional violation unless the subordinate knew of the document’s frivolous character.” However, Malia may have violated Tennessee Rule of Civil Procedure 11.02(2), which provides that an attorney who signs a pleading is certifying that “to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, -- the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law . . . .” (emphasis added)
As noted, the comment to Rule 5.2 fails to consider the effect of Tennessee Rule of Civil Procedure 11, which imposes on every lawyer signing or submitting a pleading a duty of certification after “an inquiry reasonable under the circumstances.”
The comment to Rule 5.2 also ignores Tennessee Rule of
Professional Conduct 3.1, which provides: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless after reasonable inquiry the lawyer has a basis in law and fact for doing so that is not frivolous . . . .” (emphasis added). Comment [2] to Rule 3.1 emphasizes what the lawyer is required to do: The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they act reasonably to inform themselves about the facts of their client’s case and the law applicable to the case and then act reasonably in determining that they can make good faith arguments in support of their client’s position. (emphasis added)
This disconnect illustrates the dilemma facing junior lawyers when they are asked (or directed) to perform some task by their supervisors. Can these subordinate lawyers perform the task in reliance on their supervisors’ instructions, or must they use their independent professional judgment to determine whether the task is ethical? If they do not obey their supervisors’ instructions, and instead insist on making their own independent evaluation of the situation, don’t they run the risk of being fired? Or, at least, of being labelled a problem lawyer?
Rule 5.2, and particularly Comment [1], attempts to take into account the reality of the relationship between supervising and subordinate lawyers, in which supervisors frequently enlist junior lawyers to assist with cases that the subordinate lawyers have not been fully involved in. For the subordinate lawyer to “inform themselves about the facts of their client’s case and the law applicable to the case” would often require more time and effort than the case will allow, especially if a statute of limitations is running. Still, the exigencies of law practice do not nullify the professional responsibilities of either subordinate or supervising lawyers.
So what’s the lesson from this lively exchange at Ethics Bowl 2022? Supervising lawyers need to realize that their instructions to subordinate lawyers may put the junior lawyer in an ethical bind. When enlisting the help of junior lawyers, supervisors should give them time to fulfill their ethical duties of reasonable inquiry into the law and facts. Subordinate attorneys might remind supervisors that they (the subordinates) have an independent professional obligation to make a reasonable inquiry into the facts and the law. Depending on the circumstances, the subordinate’s independent professional judgment might counsel against following the instructions of the supervisor. If that happens, the supervisor could be offended or angry, or the supervisor could be grateful to have a colleague who strives to act ethically. The Ethics Bowl participants hope you know which choice to make.
Plan now to attend the first Barristers monthly meeting of 2023 on Wednesday, February 8. Details to follow.
The Barristers Elections and Holiday Party was held on December 7. Thank you to everyone who came and to our newly elected Executive Officers: Hon. Zachary Walden, President; Chuck Sharrett, Vice President; Jimmy Snodgrass, Secretary/Treasurer and Matt Knable and Isaac Westling, Members at Large.
The Veterans’ Legal Advice Clinic is a joint project of the KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox Co. Public Defender’s Community Law Office, the UT College of Law, LMU- Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. The next Veterans Legal Clinic will be held in person at the Knoxville Community Law Office on January 11. Sign up at https://www.knoxbar.org/?pg=Upcoming-Legal-Clinics.
The Knoxville Barristers Hunger and Poverty Relief Committee hosted the annual Second Harvest Food Drive Competition from November 7 through 29. $19,944.57 was raised, which will provide 59,833 meals. Thank you to everyone who donated. Your generosity was greatly appreciated. Congratulations to London Amburn for winning the 2022 Second Harvest Food Drive Competition! Here were the final standings:
The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. at the Volunteer Ministry Center, located at 511 N. Broadway, Knoxville, Tennessee. The Barristers Volunteer Breakfast Committee always needs volunteers to serve food or sponsor. The cost is $150 for sponsoring, and we need 4-5 volunteers. If you are unable to fund the breakfast, the Barristers will subsidize the cost of the breakfast. We meet at 6:15 a.m. and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30 a.m. It’s a great way to serve the community! Please contact either Matt Knable at (865) 3605044 or Darrius Dixon at (865) 546-4646 with any questions and/or about volunteering.
The Barristers High School Mock Trial Committee finalized this year’s Regional Competition dates. The Regional Competition will occur in the City County Building on February 24 and 25, and the final two teams will advance to the championship round held in LMU’s Business Courtroom on Sunday, February 26. This program is supported entirely by volunteer efforts. Traditionally, East Tennessee law school students, attorneys, and judges have donated their time to serve in the roles of bailiffs, scoring judges, and presiding judges during the competition. Please contact either Bridget Pyman at (865) 546-7000 or Isaac Westling at (865) 673-8516 with any questions, and if you are interested and volunteering, you can sign up at: https://memcentral.wufoo.com/forms/mdbyy3q1labt0z/
Stephen M. Boyette, Jr. Breeding Olinzock Carter Crippen, PC
Kelby Christopher Cowan
Christopher C. Cowart Knoxville Leadership Foundation
Bill E. Dials
Gregory Chance Harrison Valliant, Harrison & Schwartz, P.A.
Preston D. Pierce
Knox County Public Defender’s Community Law Office
Caleb A. Smothers
Alaina Michelle Tolbert
Spicer Rudstrom, PLLC
We all have surreal moments as attorneys. It’s unavoidable in this profession. Perhaps my most recent such experience happened in August at a CLE. A non-gambler, I was at Cherokee for the first time. The CLE was put on by a defense firm - and I am as plaintiff’s attorney as they come. We had first gone to a restaurant that was… wait for it… out of food before settling at Gordon Ramsey’s pizza restaurant for our lunch break. But wait, I’m not even to the weird part yet!
As we sat in this mostly-empty upscale cafeteria, a woman with a dog in a stroller parks herself at the table next to us. She starts talking. She could have taught a class on enthusiastic depositions and interviews.
Question: Where you from?
Q: You win big yet?
Q: Oh, you’re attorneys? My husband is an attorney, he’s over there. He’s a… <I wish I could tell you what kind of attorney he was and where they were from, but I was glazing over fast. Unlucky for me, I was the closest to her and my table mates had already tapped out on the conversation.>
Insert musical montage here to demonstrate the passage of time.
Q (honestly, by this point, there’s fewer questions and more statements): You know, my stepfather (I’m pretty sure she said stepfather) is from Knoxville. His mom (mom?)1 was murdered. It’s one of Knoxville’s coldest crimes. <My ears perk up – I always love a good conversation that doesn’t involve the law.>
Q: Yeah, her name was Rose Busch. She was a jeweler.
At this point, I’m convinced this woman is looney. She has a dog in a stroller in a restaurant in a casino and she’s telling me that a woman with a floral name was murdered in Knoxville years ago and it’s never been solved?!?! And I’ve never heard of it?! Don’t believe it. <Pizza arrives. I speak no more words, because the cheese on that pizza is so cheesy. Seriously, delicious.>
We return to our CLE, but I have to admit, my curiosity got the better of me. And it wasn’t Life Care Plans that had piqued my interest.
My new casino friend might have been crazy, but on this particular topic, she was decidedly lucid. Ms. Rose Busch was a jeweler. She was murdered. She is the lone 1960s cold case on KPD’s website.
As it turns out, Ms. Busch and her husband of 44 years, Harry, lived in Sequoyah Hills. He had a store downtown called Royal Jewelers, eventually bought by Zales, before he opened a pawn shop. The night of November 19, 1968, was cold and dreary. It had been raining. Mr. Busch phoned home to see if Rose needed anything on his way back to their home on what is now Kenesaw Avenue. She didn’t. She was baking a cake. The housekeeper was already gone, and the groundskeeper was about to leave, having politely declined Rose’s usual ride to the bus stop. Before Harry could make it very far, though, he discovered the valve core and stem of one of his car tires had been removed. He had a flat and needed a lift home.
By the time Harry arrived home 45 minutes later, Rose was dead in the hallway. She had been brutally beaten and repeatedly stabbed. News traveled fast – the Busches were very well known in the community between the store, their active involvement in their synagogue, and his membership in the Masons. In the coming days, some clues about Harry’s life and Rose’s death would emerge.
The next morning, a brush crew found a jammed pistol in the grass along Cherokee Boulevard. Evidently the gun jammed on the first shot, grazing Ms. Busch’s hand and forcing the killer to improvise with a steak knife at the scene. Along with the pistol, investigators also recovered a discarded police uniform, bloody white gloves, uniform raincoats, and a broken silencer. Both the weapon and uniform were traced back to Cleveland, Ohio.
It didn’t take long for police to surmise that perhaps the murderer was hired. As it turned out, Mr. Busch had been having an affair for several years with the Knoxville madam, Hazel Davidson. The fortysomething had already been named as the “other woman” in several high-profile Knoxville divorces. A frequent gambler, Ms. Davidson often visited the Busch pawn shop to place bets – and she wasn’t very good. Did she have something to do with it? Did she hire someone to dress as a police officer to entice the very cautious and private Mrs. Busch to turn off her alarm system, open the door, and meet her doom? Did she want Harry all to herself?
It wasn’t a robbery. Nothing was taken.
Eventually Mr. Busch himself was cleared as both a suspect and a potential victim. He passed a polygraph, but he didn’t do himself any favors marrying one of America’s richest women just five months after Mrs. Busch’s death. Some folks have turned their eyes to Detective Bob Chadwell, a high roller whose only unsolved murder was this case, but who also had ties to an Andersonville man found deceased in his trunk in Kentucky.
As the years have faded, so has any evidence that might lead to any definite resolution or justice for Mrs. Busch. Natural disasters, retirement, and old age have taken with them the case files and critical clues necessary to solve this murder. Harry died in Florida in 2002 at the age of 103. Ms. Davidson died in her seventies in Jefferson City.
Even their mid-century home was demolished in 2018, leaving nothing but news stories and guesses as to what really happened that cold fall evening.
1 Evidently not, the couple was childless.
Welcome to 2023! We have arrived at the beginning of the new year. Most people associate this time with a clean state and promises of a fresh start to finally make those changes they›ve promised themselves year after year. “This is going to be the year I›m going to lose 10 pounds.” “This is going to be the year I don›t get behind on recording my time.” “This is going to be the year I _________” fill in the blank of goals that come to your mind.
Depending on where you get your numbers, statistics show that somewhere between 81 percent and 92 percent of New Year’s Resolutions fail. 8 out of 10 times, you are more likely to fall back into old habits after about two weeks. Behavior change is challenging. If it were easy, we would all be the healthiest, happiest, most ideal version of ourselves.
If New Year’s Resolutions don’t work, is there a better way? Yes, there is.
Start with questions about what you want to experience in 2023.
How can I have improved health and more energy?
How can I spend more time with my kids and family?
How can I hit my income goals?
How can I have more calm in my life?
How can I have more time freedom?
How can I continue to grow in my career?
How can I have more rest or vacation experiences?
How can I improve my organization and systems at work to be less stressed?
One of the first exercises I have my clients do is to think about who they want to be and what they want their life and career to look like 3 or 6 months from the start of our work together. Some clients have never thought about who they want to become or what type of life they want to build. They’ve been in survival mode and on a path they think they should follow in law.
Step Two: Break the Goal Down into Smaller Steps
Once you have created these questions, you can focus on the steps needed to reach the outcomes. With my clients, I map out how they will get from point A to point Z. Mountaineers who climb Mt. Everest don’t just show up and climb the mountain. They map out training and nutrition regimens and execute those daily. They gather the proper equipment, hire sherpas (expert support systems), and plan a route for the ascent. Depending on the weather and other factors that impact the climb, they must adjust the route as needed. If they focused solely on the outcome – I want to climb Mt. Everest – then they would be much less likely to reach the summit than if they focused on all the steps, one by one, that would get them to the top.
If you have a goal to lose a certain amount of weight, break it down to:
1. Lose one pound.
2. The daily activity you are going to do for exercise.
3. The daily food intake.
After you lose one pound, the next step is to lose one more. Refine and repeat the process.
Humans are not good at being patient. We want immediate results. One reason New Year’s Resolutions don’t work is that people rely on the motivation, energy, and promises of a new year, which wears off in about two weeks. They give up when they haven’t lost 15 pounds in those two weeks.
If you have an annual income goal, break it down into quarters or months. Identify how many new clients you need to retain monthly to hit your monthly income goal. Review each month to see if you are on track, had a surplus, or had a deficit. Then adjust your workload the following month. Reviewing your progress helps prevent taking on too many cases, becoming overcommitted out of fear of scarcity, and operating in the dark about your income goals. You have data to inform your decisions. You have a process to trust, leading to the yearly income goal.
After you have your goals identified and the journey mapped out, changing your identity and mindset is a crucial component. We act according to how we see ourselves and the beliefs that live in our subconscious and drive our behavior. Not changing these beliefs is another reason New Year’s Resolutions fail.
I worked with a lawyer who was over-committed with his workload. His goal was to work only the required billable hours each month to improve work-life balance. He was a month ahead of his targets when we started, impacting his relationship with his kids. He was either at the office too much or stressed and irritable when he was home. He said in passing, “I have an inability to say no.” This belief was part of the subconscious factors driving him to say “yes” to cases and extra opportunities. He did an exercise to identify what he wanted to say yes to based on his career and lifestyle goals. Then he shifted his mindset: “I only say yes to cases and opportunities aligned with my goals.” Or “I say no to opportunities not aligned with my goals.” He developed a series of questions to answer to help him pause before automatically saying “yes,” guiding him to his decision.
Commit to your goals and the execution of daily habits.
Share your goals with others. People want to support you in achieving goals.
Identify accountability partners or expert support systems.
If you miss a day, keep going. Recommit to your goal the next day. Aim for progress, not perfection.
Set your environment up for success. For example, if you plan to work out in the mornings, lay your clothes next to your bed.
Trust the process and have patience.
See the small steps adding up and celebrate your progress along the way.
You can reach your goals in 2023. Here’s to your success!
October 15, 2022. Everyone has a story. Here is mine.
I stood alone in Section U looking down on Shields-Watkins Field as the goal posts fell. It was difficult to find any grass as the entire length of the field was covered in human beings in various stages of delirium. The crowd’s collective voice, cigar smoke and celebratory music filled the air as people at every stage of life sang Dixieland Delight. This, I thought, must be what heaven feels like.
To say the Alabama game is special to Tennessee fans is a bit of an understatement. It has heightened significance to the Pryor family. In 1982, I was in Neyland at age 13 when we ended the streak. It was Bear Bryant’s last visit to Knoxville. On the third weekend of October in 1995, I learned I passed the bar exam and that my wife was pregnant with our first child (yes - same weekend). On that occasion, Peyton beat the Tide in Birmingham “on play number one.” What a weekend. That first child, Shelby, rode on my shoulders to many games and has grown into a vigilant fan. And, then, I watched us beat Bama with Cheryl, Andy (18 months) and Shelby (4 years) just one day before Cheryl’s sudden death in 2000. With all that it is, Alabama weekend is also a weekend of remembrance. My children have come of age during a time of poor results against our rival, the Vols maintaining a 3-19 record since 2000, and yet they have become the most dedicated and optimistic fans I know.
Five hours before the goal posts were thrown into the Tennessee River this past October, I’d taken my seat in the great coliseum, our cathedral, next to my wife (Nancy), son (Andy), and his girlfriend (Lizzie). Shelby, who was married in July, was biting her fingernails in Walla Walla, Washington, where she lives with her husband. The empty seat to my left was soon filled by a young man wearing a burnt orange designer shirt, crisp jeans and flawlessly white running shoes. A Tennessee fan would call his shirt “the wrong orange.” He was alone and sporting a clean, tight haircut and perfectly shaved face. Young money. For those who know me, what followed was predictable. I began my examination of the witness at approximately 2:52 p.m. It was a thorough examination, perhaps a bit more probing than usual due to the fact I’d entered the stadium directly from a substantial tailgate gathering with about 100 of my closest friends. Though this man (Let’s call him Neal, because that is his name) was caught a bit off guard by the questions, he slowly acquiesced and revealed the following information:
Neal was raised in Los Angeles, educated at an Ivy League school, and currently residing in Miami. He works in the “Finance World.” Neal loves sports, college football in particular. He revealed that, once a year, he travels to a marquee game somewhere in this great country. He’s been to Tuscaloosa, South Bend, Ann Arbor, etc. He flies in on game day (private) flies out the next morning. Neal, who is in his early 30’s, has been to games all over the country, but this was his first time in Knoxville and inside the confines of our unrivaled stadium. He had no idea what was coming. Before the Pride of the Southland stepped out onto the playing surface, we were well into each other’s story. Neal has a girlfriend. Probably going to marry her and have kids. He appears to have made a good deal of money before starting his family. Is that allowed? I further educated him on the finest traditions of our remarkable university; the Pride of the Southland, The “T,” the Vol Walk, and our hatred for
Alabama. He asked me questions in kind, and I explained my history with the big game and introduced him to Nancy, Andy and Lizzie. Andy is now 23. Before kickoff, everyone on row 23 was invested in the Vols, but more importantly, we were invested in each other.
I will not offer many words on the game itself. You should know what happened and how it happened. If you don’t, I have no need for you. With every Hooker to Hyatt touchdown I was tackled from each side. Hyatt’s 4th touchdown of the day resulted in my son being flagged for targeting after leading with his head into my ribs. My hands burned from high-fives and my voice began to take leave halfway thru the third quarter. It was the most physical fan experience I’ve had in 54 years of life, and Neal was a big part of it. I suspect Neal has never put on a football helmet. He is more likely to understand the “Queen to Rook 5” than “Ineligible man downfield” but boy can the guy hit you. Neal started buying us beer and somewhere in the third quarter began promising his unborn children that they would come to Neyland together for every Alabama game.
My memories are filled with jumps, punches and arms around shoulders. I’m not pointing fingers, but at the time of this writing (two months after the game), I’m scheduled for an MRI for a suspected rotator cuff tear. I’m not kidding.
When all hope seemed lost in the fourth quarter, down a touchdown after a Bama fumble- recovery touchdown, I announced to the entire section that we would score in the last two possessions and win the game. I didn’t just believe. I knew. How? Was it the collective energy of our row, Section U, or Neyland Stadium? Was it the angel on our shoulder? Was it Neal and the promises to his future children? Or was it the vision of my newly married baby girl, in Walla Walla, Washington, praying to the television? Surely, I thought, she felt the connective bolt of lighting linking her to those of us on row 23. Perhaps it was a bit of it all. When Chase McGrath (our place kicker) trotted onto the field for the final play of the game, I already knew. So did Neal. People around us began praying. Some were crying. I felt like I was at a Baptist revival. Neal pulled his phone from his pocket. “I need your number, Robbie…” I smiled and looked at him as he finished his sentence. “…because when this goes in, I’m storming the field.” I put my arm around his shoulders and said, “you are one of us now.” When the referees jointly raised their hands signaling the end of the game, seats 19-23 became one pile of humanity. My son and I embraced, our history and love of the Vols culminating in one moment. Neal wrapped his arms around us both. Lizzie backed up a smidge to capture it all on film. Then Neal embraced Andy as they continued to jump up and down like a 5-year-old AYSO team after scoring their first goal. “I have to go to the field, Dad.” Andy said. “Absolutely you do. Go!” I replied. I watched as he, Neal and Lizzie stepped over bleachers, cushioned seats and stadium trash in a rush to join the unforgettable party.
This is football in the SEC. It is life. It is death. It is family and friends - old and new. It is the lifeblood of our community and culture. And it is beautiful.
Neal and I have stayed in touch. We’ve texted throughout the season and even made plans to potentially meet up for the bowl game. Go Vols! Happy New Year!
While there are millions and millions of songs, popular music has the tendency to repeat. This includes song titles. In the English language, words with the same spelling or pronunciation but different meanings are called homonyms. We decided to call songs with entirely different music and lyrics that share the same title “songonyms” (copyright pending).
You probably know several of these. Shout. Jump. Lady. Fire. One. Photograph.1 The most successful instance of a songonym may be “Best of My Love” by both the Eagles and The Emotions. Both rose to #1 on the charts within a few years of each other in the 1970s.2 Depending upon your age, musical taste, or interests, when you hear the name of a songonym, your first thought will naturally relate to your preferred decade or genre of music. For example, “The Power of Love” will prompt a foottapping recall of Huey Lewis and the News or a slower, softer musical styling of Celine Dion, depending upon your own tastes.
In the legal world, there are homonyms that have entirely different legal meanings. Oftentimes, these differing meanings depend upon the area of law in which you practice. And, like a songonym, your area of practice may determine where your mind wanders.
Take “malice” for instance. In the criminal context, you may think of “malice aforethought.” Malice aforethought is the requisite mental state necessary to prove common law murder.3 Malice, of course, might be evidenced by an intent to kill, an intent to inflict grievous bodily harm, or reckless indifference.4 And don’t forget the intent to commit a felony leading to culpability for felony-murder.5
However, for a civil lawyer, “malice” has one application in regard to exemplary damages. Tennessee’s punitive damage standard for years has required clear and convincing evidence that the defendant acted maliciously, intentionally, fraudulently, or recklessly.6 The Tennessee Civil Justice Act has codified this into statute at Tenn. Code Ann. § 29-39104. Malice, in civil practice, is not limited to an intent to kill or inflict grievous bodily injury. Indeed, a person acts maliciously when motivated by ill will, hatred, or personal spite.7 Another Tennessee case stated that, “‘malice’ is defined as “an act [that is] hurtful to another, intentional, and without legal justification.””8
Standing is another term that has a different meaning, depending on the context. Constitutional law nerds of all types will quickly identify the term, but the definition may differ depending upon your practice. Civil attorneys will recognize “Article III standing” as a party’s right to make a legal claim or seek judicial enforcement of a duty or right.9 Plaintiffs must initially show injury in fact, causation, and redressability to have Article III standing.
If your tastes and practice leans more toward constitutional criminal procedure, then “standing” takes on a whole new meaning when it comes to government searches. In Rakas v. Illinois, the Supreme Court clarified that a defendant has standing to object to a government search only if the action violated his or her personal privacy rights, not the rights of others.10 Standing, in the Fourth Amendment context, is not a preliminary inquiry like that of Article III standing, but a substantive question. Recognizing
the confusion that might flow from using the same legal term of art to describe two entirely distinct functions, then-Associate Justice Rehnquist, in announcing the opinion of the Court, was careful to distinguish the two clearly.11
Most of us remember the parol evidence rule from law school. Essentially, the parol evidence rule provides that “contracting parties cannot use extraneous evidence to alter, vary, or qualify the plain meaning of an unambiguous written contract.”12 The parol evidence rule is a substantive rule meant to protect the integrity of written contracts.13 The parol evidence rule assumes that parties deliberately chose the language of the agreement to avoid the uncertainties of oral or, parol, evidence including the possibility of false testimony as to oral conversations.14
However, just add an “e” to the word, and the criminal bar references “parole.” Spelled slightly differently, sounds exactly the same. The stated purpose of parole is to protect society by supervising and investigating the conduct of offenders who have been released from confinement while also helping establish the offender in a community to prevent situations in which they might commit a new offense.15 Parole allows a defendant to continue serving his or her sentence outside the walls of the prison but does not reduce a defendant’s sentence.16 Indeed, while the parol evidence rule forbids anything “outside”, parole embraces “outside,” albeit in an entirely different context.
Some may wonder: how can two songs have the same title and not constitute a copyright violation? The legal standard is that the subsequent work has been copied and is substantially similar. The referenced songs share nothing similar, other than the title. Likewise, the legal terms referenced herein share nothing similar, particularly when used in their unique contexts relating to their particular area of the law.
Wishing everyone a happy and healthy 2023! May your troubles last only as long as your New Year’s resolutions.
1
“Shout”, The Isley Brothers, Tears for Fears; “Jump (For My Love)”, The Pointer Sisters, “Jump”, Van Halen, Kriss Kross; “Lady”, Styx, Little River Band, Lionel Richie/Kenny Rogers; “Fire”, The Ohio Players, Bruce Springsteen/The Pointer Sisters; “One”, Three Dog Night, Metallica, U2; “Photograph”, Ringo Starr, Def Leppard, and yes…even Nickelback.
2 According to BillBoArd Com, the Eagles 1975 “Best of My Love” was the band’s first ever Billboard Hot 100 single (https://www.billboard.com/artist/eagles/), while The Emotions’ “The Best of My Love” spent five weeks at number 1 in 1977 (https:// www.billboard.com/artist/the-emotions/).
3 Malice aforethought, BlACk’s lAw diCTioNArY (11th ed. 2019).
4 Id.
5 Id.
6 Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992).
7 Id.
8 Hutton v. Watters, 179 S.W. 134, 135 (1915).
9 Standing, BlACk’s lAw d CTioNArY (11th ed. 2019).
10 Rakas v. Illinois, 439 U.S. 128 (1978).
11 Id. at 133.
12 Hillard v. Franklin, 41 S.W.3d 106, 112 (Tenn. Ct. App. 2000).
13 Individual Health Care Specialists, Inc. v. BlueCross BlueShield of Tennessee, Inc., S.W. 3d 671, 696 (Tenn. 2019) citing GRW Enters., Inc. v. Davis, 797 S.W.2d 606, 610 (Tenn. Ct. App. 1990).
14 Farmers & Merchs. Bank v. Petty, 664 S.W.2d 77, 82 (Tenn. Ct. App. 1983).
15 Department of Justice’s U.S. Parole Commission, Frequently Asked Questions: What is Parole?, JUsTiCe gov, available at https://www.tiny-url.site/Y0CRXv, (last accessed December 8, 2022).
16 Davis v. State, 313 S.W. 3d 751, 758 (Tenn. 2010).
According to one journalist, Edward Bates was “a small white-haired man, not noticeable in appearance, with a good head, sharp features, and pleasant face well-fringed with gray whiskers. He is not meddlesome in public affairs, lives retired, and next to Montgomery Blair, is the least influential man in the cabinet.”1 If that description strikes you as odd, it should, given everything Bates had accomplished by that point in time.
Bates was twenty-three years old when he was admitted to practice law in the Territory of Missouri—before law school and bar examinations were mandatory.2 By the time he was twenty-seven, he was elected the Missouri Attorney General, and helped to draft the constitution of the new state.3 Then, he was elected to the House of Representatives as Missouri’s first U.S. Congressman.4 But, Bates lost his bid for reelection—mainly because he refused to join the Republican party.5 So, he went back to practicing law, raising his seventeen children, and even serving a few years as the judge of the St. Louis land court.6
He was also rather outspoken against slavery, but he stopped short of advocating for full citizenship of African-Americans. He was considered a “moderate” at the time who (people thought) could stop the expansion of slavery without driving a wedge with the South.7 By 1859, he was on the list of the Twenty-one Prominent Candidates for the Presidency of 1860 published by D.W. Barlett.8 He also made it to John Savage’s Our Living Representative Men Prepared for Presidential Purpose published in early 1860.9 In case it matters to anyone Abraham Lincoln did not actually make either list. But, a few months later, there they both were in Chicago at the Republican Convention vying for the Presidential nomination.10
If you want a dissection of the 1860 Republican Convention, you will have to look elsewhere (although it was a pretty fascinating event). We all know Bates didn’t get the nomination and Lincoln did. After Lincoln was elected President, he appointed Edward Bates to serve as his attorney general, and Mr. Bates went to Washington.11 It was 1861. Within a month, the Southern states had seceded, Confederate troops would fire upon Fort Sumter, and the nation was at war.
In those days, the office of the Attorney General was rather small. Bates only had six staff members to assist him in his duties, and that included messengers (our modern day runners).12 If Bates was the “least influential man in the cabinet” it was on purpose. “Bates restrained himself to advising the President and the department heads when they had a course of action before them; he would not give general advice or express general legal views on other problems.”13
It must have been difficult for him to be so restrained. After all, one of his sons was serving in the Union army. Another son was serving with the Confederates. A third son was training at West Point to join the army.14 The ongoing conflict was very personal for Bates, but he never lost sight of the importance of his role—to answer the legal question in front of him.
In 1862, a very important legal question was sent to him. Secretary of the Treasury S.P. Chase asked for a formal opinion as to whether an African Americans was illegally captaining a U.S. commercial vessel.15 At the time, only U.S. citizens could command an American vessel; therefore, the real question was whether a person was legally incapable of being a citizen solely because he was African American.16 Keep in mind that the U.S. Supreme Court had already answered that question in the negative five years earlier in Dred Scott v. Sandford (a case that started in Bates’ home state of Missouri),17 and the 14th Amendment wasn’t even on the horizon.
It was a really tough question, and Bates’ analysis was painstaking, starting with the U.S. Constitution, analyzing the constitutions of various states and prior Attorney-General opinions, reaching back to the ancient
Roman and Grecian concepts of citizenship, and dismantling what everyone believed about the Dred Scott opinion.
Finally, the celebrated case of Scott v. Sandford, is sometimes cited as a direct authority against the capacity of free persons of color to be citizens of the United States. That is an entire mistake. The case, as it stands of record, does not determine, nor purport to determine, that question.18
Instead, Bates opined that Dred Scott was about the jurisdiction of the trial court, not the merits of its decision.19 Bates interpreted Dred Scott to mean that because the lower court had no jurisdiction over the case, any judgement was void. The rest was just dicta. If you can make it through the 200+ pages of the Court’s opinion, you will find Bates was right.
In contrast, Bates’ opinion to answer Secretary Chase’s question is only 27 pages long. It is definitely worth the read. In the end, Bates concluded:
I give it as my opinion that the free man of color, mentioned in your letter, if born in the United States, is a citizen of the United States, and, if otherwise qualified, is competent, according to the acts of Congress, to be master of a vessel engaged in the coasting trade.20
The United States’ top attorney and the “least influential man in the cabinet” provided the analysis for determining that being born in the United States made you a citizen regardless of color or race.
On January 1, 1863, President Lincoln issued the Emancipation Proclamation. Bates contributed to that document as well—providing a few edits to clarify the President’s legal authority to issue the Proclamation.21 Others may have thought he was the least influential man in Lincoln’s cabinet (next to Montgomery Blair), but Attorney General Bates was influential when he needed to be. He was influential not by doing anything grandiose, but by doing the simple things that we do every day: identify the issue, conduct thorough legal research, analyze the problem, and reach a conclusion.
1 Mr. Lincoln’s White House, Cabinet and Vice Presidents: Edward Bates (793-1869), http://www.mrlincolnswhitehouse.org/residents-visitors/cabinet-vice-presidents/ cabinet-and-vice-presidents-edward-bates-1793-1869/, last visited Dec. 10, 2022.
2 House Divided, Bates, Edward, available at https://hd.housedivided.dickinson.edu/ node/5051.
3 University of Virginia Miller Center, Edward Bates (1861-1864), available at https:// millercenter.org/president/lincoln/essays/bates-1861-attorney-general.
4 U.S. Dept. of Justice, Office of the Attorney General, Edward Bates, https://www. justice.gov/ag/bio/bates-edward, last visited Dec. 10, 2022.
5 House Divided, supra n. 2.
6 University of Virginia Miller Center, supra n. 3.
7 Encyclopedia Britannica, Edward Bates, available at https://www.britannica.com/ biography/Edward-Bates.
8 National Park Service, Lincoln Home, The Cooper Union Address: The Making of a Candidate, available at https://www.nps.gov/liho/learn/historyculture/aboutcooper. htm, last visited Dec. 10, 2022.
9 Id.
10 Thomas W. Marshall, Edward Bates, DAB vol 2, 48-49, available at https://www2. tulane.edu/~sumter/Bates.html, last visited Dec. 10, 2022.
11 Id.
12 Mr. Lincoln’s White House, supra n. 1.
13 Id.
14 Id.
15
Opinion, Attorney General’s Office, Nov. 29, 1862, available at https://archive.org/ details/opinionattorney01bategoog/page/n8/mode/2up?view=theater.
16 Id.
17 Dred Scott v. John F. A. Sandford, 60 U.S. 393 (1857).
18 Opinion, Attorney General’s Office, supra n. 15, p. 24.
19 Id. p. 25.
20 Id. at pp 26-27.
21 See Edward Bates, Memorandum on the Emancipation Proclamation (Dec. 31, 1862), available at https://www.loc.gov/resource/mal.2081800/?sp=1.
Writing live, from the center of the Earth, Well Read is diving into Regina N. Bradley’s critical discussion of what it means to be a Black Southerner through the lens of culture and music, using Atlanta, Georgia’s own hip-hop group OutKast as an exemplar of what a modern, Black Southern identity might entail. It can be difficult to welcome change – don’t everybody like the taste of apple pie? – or to think of a region and the identity that someone associates with that region, especially in the South where a sense of identity as a Southerner is engrained into its people (oftentimes for the worse), as mutable or needing of reexamination and change. It ain’t cool, it’s cool; if it ain’t broke, don’t fix it – or so the saying goes. But given that Southern identity oftentimes encompasses a negative view of and a negative history regarding Black Southerners, how is an outcast supposed to find their identity in the region?
Academic writing can often be dry and tedious to read, but Bradley is able to make what is essentially an academic investigation into Southern identity extremely fun and easy to read, and I know my lawyers stay down with that (especially fellow transactional lawyers who get bogged down with less than exciting documents to read every day). Bradley begins by detailing her personal experience being the new girl in Albany, Georgia, where she quickly realized that her move to the South will need to involve figuring out how to deal with her own experience of southernness as it relates to, and sometimes comes in conflict with, the experience of southernness that her ancestors had. Southern rappers like OutKast and Goodie Mob readily rappin’ and snappin’, snappin’ and trappin’ spoke to Bradley as a child and helped her begin the lifelong process of constructing her own narrative of southernness and Black Southern identity. Dungeon Family 1st Generation, the group of artists consisting of OutKast and other Atlanta artists in their orbit, became a soundtrack for Bradley in understanding her own southernness, and also for helping Bradley understand the endless possibilities for Black Southern identities that could be constructed. For Bradley, it was OutKast who helped introduce her to and ground her experience in a post-Civil Rights South when she felt that most of the people around her were struggling with figuring out how to separate the South from one of three eras: the antebellum era, Jim Crow, and the Civil Rights Movement. But don’t you dare ever get lost or get caught up in that sauce – there is more, as Bradley contends, to Black Southern
Government’s appeal is pending before the Fifth Circuit.
For now, the Plan’s implementation is stayed until the Supreme Court issues its ruling in Nebraska. In the meantime, the Biden Administration has extended the loan repayment freeze until summer 2023.11
1 Cory Turner, Biden pledged to forgive $10,000 in student loan debt. Here’s what he’s done so far, NPr, https://www.npr.org/2021/12/07/1062070001/student-loanforgiveness-debt-president-biden-campaign-promise (last accessed Dec. 9, 2022).
2 Fact Sheet: President Biden Announces Student Loan Relief for Borrowers Who Need it Most, The whiTe hoUse, https://www.whitehouse.gov/briefing-room/ statements-releases/2022/08/24/fact-sheet-president-biden-announces-studentloan-relief-for-borrowers-who-need-it-most/ (last accessed Dec. 9, 2022).
3 Annie Nova, Pelosi says Biden doesn’t have power to cancel student debt, CNBC, https://www.cnbc.com/2021/07/28/pelosi-says-biden-doesnt-have-authority-tocancel-student-debt-.html (last accessed Dec. 9, 2022).
4 Caroline Downey, Biden’s Student-Loan ‘Cancellation’ Order Costs $400 Billion, CBO Calculates, NATioNAl review, https://www.nationalreview.com/news/bidens-student-
identity than these three eras alone, despite the enormous roles they played and continue to play in the lives of any Black Southerner.
For Bradley, hip-hop became a way for young Black Southerners growing up in the 1980s and 1990s to express themselves and chronicle their own experiences in the world. As an art form, hip-hop also became a key medium through which Black Southerners could contribute to the era of scholarship on postCivil Rights black culture considering that most “mainstream” scholarship on the topic focused, as Bradley notes, on areas outside of the South. Perhaps most importantly, hip-hop provided an outlet where Black Southerners could situate their own narratives as outside of the dominant White Southerner narrative and acknowledge that being in a post-Civil Rights Movement era brought blessings but also significant challenges for Black Southerners. Bradley contends throughout the book, continuing to weave in her own experiences, that OutKast and similar Southern hip-hop artists speak truth to power and speak truth to the Black Southern experience (recognizing both its struggles and its triumphs), and as such has helped usher in a new era of Southern Blackness that allows for complexity of identity.
And play the sweetest melody the street ever heard – perhaps music is so sweet because it has an overwhelming capacity for change. Understanding how to conceive of her identity as a Black Southerner was almost too much for her little mind to bear, but it was the music of OutKast and other Southern hip-hop artists that first allowed Bradley to begin to figure out who she was. Look at you, unbelievably, brilliant beautiful you
Chronicling Stankonia is a wonderful reminder that identity is complex and multifaceted, and, that while identity is hardly ever found easily, each person’s identity is uniquely beautiful because of all the histories and experiences that compose it. As always, I would recommend that you buy the book from a local bookstore if you are interested in reading it – Union Ave Books and The Bottom are my favorites. Well, I got one question to ask you: how do you define your Southern identity? Stank love
loan-cancelation-order-costs-400-billion-cbo-calculates/ (last accessed Dec. 9, 2022).
5 20 U.S.C. § 1098aa et seq.
6 Memorandum from Lisa Brown, General Counsel, to Miguel A. Cardona, Secretary of Education (Aug. 23, 2022), https://www2.ed.gov/policy/gen/leg/foia/secretaryslegal-authority-for-debt-cancellation.pdf (last accessed Dec. 9, 2022).
7 Memorandum from Reed D. Rubinstein, Principal Deputy General Counsel, to Betsy DeVos, Secretary of Education (Jan. 12, 2021), https://static.politico.com/d6/ ce/3edf6a3946afa98eb13c210afd7d/ogcmemohealoans.pdf (last accessed Dec. 9, 2022).
8 Natalie Schwartz, A running list of lawsuits against Biden’s student loan forgiveness plan, higher drive, https://www.highereddive.com/news/a-running-list-of-lawsuitsagainst-bidens-student-loan-forgiveness-plan/634707/ (last accessed Dec. 9, 2022).
9 Nebraska v. Biden, No. 4:22cv1040HEA (E.D. Mo. 2022); Brown v. U.S. Dep’t of Educ., No. 4:22-cv-0908-P (N.D. Tex. 2022).
10 Supreme Court docket for Nebraska v. Biden, sUPreme CoUrT of The UNiTed sTATes, https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/ public/22a444.html (last accessed Dec. 9, 2022).
11 Biden-Harris Administration Continues Fight for Student Debt Relief for Millions of Borrowers, Extends Student Loan Repayment Pause, U.s dePArTmeNT of edUCATioN, https://www.ed.gov/news/press-releases/biden-harris-administration-continuesfight-student-debt-relief-millions-borrowers-extends-student-loan-repaymentpause (last accessed Dec. 9, 2022).
There was fierce competition for the Ethics Bowl trophy this year! “Ethics Bowl XVI: Til Ethics Do Us Part” was presented on Friday, December 2, 2022 from 1:00 p.m. - 4:15 p.m. This year’s Husband & Wife Teams were: Carol Anne Long, U.T. College of Law & Jason Long, Lewis Thomason, P.C.; Avery Lovingfoss, Brock Shipe Klenk & Elijah Lovingfoss, Brock Shipe Klenk; Summer McMillian, Tennessee Supreme Court & Hon. Greg McMillian, Circuit Court, Division IV; Kacie McRee, Bradley Arant Boult Cummings LLP & Andrew Mcree, LMU, Duncan School of Law; Katie Ogle, Tennessee Valley Authority & Nate Ogle, Justice, Noel, Burks & Ogle; and Joy Robinson, Attorney-at-Law & Richy Robinson, Richard H. Robinson, Attorney-at-Law.
In the end, the
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.
As part of this year’s focus on celebrating our bar association’s diverse membership and exploring creative ways for members to connect, network, and experience fulfillment in the practice of law, we would like to highlight the accomplishments and contributions of KBA members who are making a difference in the legal arena and beyond. Send links to news to posts or articles, pictures, or just a blurb about what’s going on to membership@ knoxbar.org.
The KBA’s Law Practice Today Expo is the premier opportunity for you to get exposed to dynamic CLE courses from local and national speakers so that you can fast-forward your law office management skills and make new connections. If you are interested in helping plan the Expo, join the Law Office Technology Committee. Contact Marsha Watson, KBA Executive Director, at mwatson@knoxbar.org.
Each year since 2016, the ABA YLD has honored 40 young lawyers who exemplify leadership, have brought innovation to the profession, or are just broadly ahead of the pack in their contribution to the practice. Nominations are now open as we seek the On the Rise – Top 40 Young Lawyers, Class of 2023! Nominations for another person must be received no later than Feb. 20, 2023, at 11:59 p.m. ET. Self-nominations are extended through Feb. 27 at 11:59 p.m. ET. Both must be submitted via the https:// americanbar.qualtrics.com/jfe/form/SV_b9nhx2ZsRFZFoB8. On the Rise – Top 40 Young Lawyers Honorees will receive national recognition in ABA print publications, online, and via social media.
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.
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. Interviews of Howard Vogel, Judge Curtis Collier, David Black and Hon. Mary Beth Leibowitz have been recently added. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources.
• Downtown Office Space for Rent - Large corner office with a view of downtown. Located in the First Horizon Building. $1,100 monthly. Includes Westlaw subscription. Inquiries can be sent to jfanduzz@ gmail.com.
• Great opportunity for fledgling lawyer to share office space with experienced attorney. Available for use is conference room, Internet, reception area, phone system and parking area. Office location within 5 minutes of the Sevier County Courthouse. Call (865) 566-1886 or email ccostnerlaw@gmail.com.
• Existing association of attorneys have available 1-2 office spaces in historical building 1816 Clinch Ave., across from Ft. Sanders Reg. Hospital to include parking spaces, conference room, reception area, receptionist, phone system, internet and Lexis access. Email cburks@ jnblawfirm.com or call (865) 522-4964 for inquires.
• 1520 Highland Avenue in Fort Sanders Available - The offices are $1,000/month and includes a private office and access to a common area that includes a full kitchen, reception area, conference room and separate client meeting room, plus 1 free parking space in addition to free on street parking. The office is “Class A” space (there’s even a fireplace in the meeting room!) and it would be a great office sharing arrangement for up to 4 people who are starting out. Rent includes utilities, alarm, and internet. Contact Perry Childress at (865) 8032545.
Please note the following changes in your KBA Attorneys’ Directory and other office records:
Daniel Taejoo Chung
BPR #: 040351
TriAmicus Law, PLLC 217 S. Peters Rd. Knoxville, TN 37923-5210 Ph: (865) 217-1154 daniel@triamicuslaw.com
Landon M. Hickey
BPR #: 018643 Law Offices of G. Turner Howard III & Associates P.O. Box 51904 Knoxville, TN 37950-1904 Ph: (865) 558-8030 lmh@g3helpme.com
Sanjay Raman
BPR #: 038603
Butler, Vines and Babb, P.L.L.C. 2701 Kingston Pike Knoxville, TN 37919-4619 Ph: (865) 637-3531 SRaman@bvblaw.com
Keith D. Stewart
BPR #: 017574
Dunn, MacDonald & Reynolds, P.C. 606 W. Main St., Suite 225 Knoxville, TN 37902-2617 Ph: (865) 525-0505 keithdstewart@gmail.com
Edward H. Trent
BPR #: 030045
Schaerr-Jaffe, LLP 1717 K Street NW, Suite 900 Washington, DC 20006-5349 Ph: (202) 787-1060 etrent@schaerr-jaffe.com
Michael D. Watson
BPR #: 040346
Watson Law Firm, P.C. 800 S. Gay Street, Suite 700 Knoxville, TN 37929-9703 Ph: (865) 259-0948 mwatson836@yahoo.com
Isaac Westling
BPR #: 039416
Spicer Rudstrom, PLLC
800 S. Gay Street, Suite 1400 Knoxville, TN 37929-9737
Ph: (865) 673-8516 iwestling@spicerfirm.com
Well, we made it to another year. Before I was a lawyer, and when dinosaurs roamed the earth, this was a time for celebration and gratitude. Each year represented a new beginning with new opportunities. The slate from last year was wiped clean, and I was reborn and could confidently start over, chart a new path, make a difference, and embrace what new and exciting things were on the horizon. Now, as a lawyer, it’s Groundhog Day, and I’m Bill Murray: desperately in search for new ways out.
I rest comfortably with the assumption that many of you are in the same boat. When the clock strikes midnight on December 31, there is no cause for celebration and no amount of champagne or number of spirited renditions of Auld Lang Syne can distract me from the overwhelming grief I feel at the thought of my billable hours rolling back to zero. Everything I put off in December now needs immediate attention. Opposing counsel who was so magnanimous over the holidays is suddenly possessed, bloodthirsty, and insistent that we “get this case moving.” Never mind the fact that he’s overdue on discovery and hasn’t done anything he said he would do for the life of the case.
Juxtapose January Mitchell with December Mitchell. December Mitchell, like his opposing counsel, is happy, care-free, and fun. Beers at 3:00 p.m. on a Tuesday? Sure! Want to duck out for a three-hour lunch “off campus”? Why not?! Then, as the clock strikes on New Years Eve, I am Cinderella, and all the magic is gone.
Unlike me, some lawyers (the psychopaths) enjoy the grind and can overlook the pain of resetting. The rest of us see it for what it is: an endless ride on the rat wheel of life as a lawyer. If you struggle with the reset yourself, I wish I could say that this column will provide you with a secret to overcoming the angst, but it won’t. No, at this point, I’m still wallowing. What I can tell you, however, is that instead of being proactive and getting a head start on this year’s billable hours or developing a plan of attack to wade through the mound of crap that’s piled up over the holidays, I usually choose the maladaptive path, which for me typically means a solemn retreat into the mindless world of reality television.
It’s no secret that I have a deep love and appreciation for trash television. This love, like most of my maladaptive behaviors, can be traced back to my childhood. In fact, I have specific memories of sitting in the living room with my parents and all four of my siblings, watching the king of trash: Jerry Springer.1 I was too young to understand some of the storylines (it doesn’t hurt that half of the dialogue was censored), but it never mattered. I wasn’t there for the story. I was there for the action. For example, I didn’t care why this lovely woman from Indiana was so
upset when her boyfriend disclosed that he had eloped with a horse (that’s a real episode, by the way). I just wanted to see the smackdown that would inevitably ensue when one of the producers walked that horse onto the stage.
Even as a child, I knew that those stories weren’t real. Just like professional wrestling, I saw it for what it was: mindless, salacious back and forth between actors whose talents rival the lowest budget community theater in my hometown.
While I’ll never “forget my raising,” my tastes in television have evolved through the years. [Although I’m still prone to watch Maury on days when I’m at home sick. You can lie to yourself all you want, but those paternity episodes are cinematic masterpieces.] Rather than the likes of Jenny Jones or Jerry Springer, I tend now toward the bourgeoisie: Bravo. In particular, I favor two of the Real Housewives franchises—Atlanta and Potomac— but we regularly watch the other slop Bravo doles out too, including several of the Housewives spinoffs. Yes, I have watched every episode of Kandi and the Gang. Am I proud of that? No, but we all do what we must to survive.
I really can’t explain what I get out watching these stupid shows. Having never run more than the length of a Golden Corral Buffet, I’m not exactly authoritative on the topic, but I understand that marathoners run 26.2 miles for the endorphins. Binging Real Housewives Ultimate Girls Trip generates the same autonomic response for me. There’s something comforting about turning on the TV and watching ridiculous people say ridiculous things. I don’t have to think, and while it’s playing, I’m briefly whisked away from the stress of starting over.
Are there any life lessons to be had from Real Housewives? No. All of the women (and men) on those shows are train wrecks. They spend money indiscriminately. They treat one another horribly, and they care for nothing and no one but themselves. Ironically, there are multiple seasons across the various Housewives franchises where all or mostly all of the cast are unmarried or in the throes of a bitter divorce.
I don’t watch these shows to help myself become a better person, and I have no expectation that I’ll “learn” anything when watching. It’s just a nice break from reality. So, as we embrace the new year, don’t be overwhelmed: get Peacock. And more specifically, start with The Real Housewives of Atlanta, Season 2. You won’t (mostly) regret it.
1 God help me if my mother figures out how to access this article. Her reaction would be akin to that of comedian Fortune Feimster’s mother, who refuses to acknowledge that when Fortune was a child, she hired one of Fortune’s babysitters while at a family dinner at Hooters. When confronted about their trips to Hooters in her childhood, Fortune’s mother said emphatically: “I . . . have NEVER . . . been . . . to Hooters!”
It has been a pleasure and a privilege to work with such an incredibly supportive and responsive Bar Association as the Knoxville Bar Association. I am excited to share all the amazing work you have done this past year, and I hope this will inspire you to continue to build on this year’s accomplishments in 2023.
2022 has been a wonderful year for the Pro Bono Project in Knoxville! We have launched new initiatives with community partners, local firms, and companies, and we have continued to match cases with the private bar for full representation. We are working with new local firms to provide opportunities for pro bono service and are excited to connect with in-house counsel programs such as the TVA and Clayton Homes. The need for help with civil legal issues like conservatorships, adoption, and probate matters continues to grow, and we are proud to provide training and resources to help attorneys from all backgrounds contribute to the effort to meet these needs. In 2022, we matched over 80 cases for full representation outside clinics, and with your continued support, I’m confident that we can match even more in 2023.
2022 has also been a banner year for clinics. This year we continued to offer many of our established clinics like the Faith and Justice Clinic, the Debt Relief Clinic, the monthly Veteran’s Clinic, and the 2022 ABA Louis M Brown Award Winning Virtual Debt Relief Clinic. At last Spring’s Faith and Justice Clinic at Cokesbury Methodist Church, 11 volunteer attorneys provided quality legal advice to over 60 clients! We are eager to resume more regular Faith and Justice Clinics in 2023 and hope to see you all at our next clinic in the spring. Please keep an eye out for the date and location on our social media or at the KBA’s Upcoming Legal Clinic page to sign up!
The Veteran’s Clinic continued to be one of our most popular clinics; attorney volunteers helped 68 service members and their families take the first legal step towards resolving their legal issues at 11 legal clinics. Join us the second Wednesday of every month at the Public Defender’s Community Law Office from Noon to 2:00 PM to give back to those who have given so much to us. We will take a break from this clinic for the month of January 2023 and jump right back in where we left off in February.
In 2022, we also debuted new clinic models, such as a Family Law and Housing Law Clinic in partnership with the YWCA of Knoxville
as-moore-v-harper-takes-shape-a-broad-coalition-takes-aim-at-the-independentstate-legislature-theory/ (last visited Dec.7, 2022).
34 Amy Howe, Court Seems Unwilling to Embrace Broad Version of “Independent State Legislature” Theory, 7 Dec. 2022, 5:22 PM. SCOTUSblog , https://www.scotusblog. com/2022/12/court-seems-unwilling-to-embrace-broad-version-of-independentstate-legislature-theory; See also Moore v. Harper, Oral argument Audio, https:// www.supremecourt.gov/oral_arguments/audio/2022/21-1271. MP3 download.
35 Supra note 33.
36 See id. (Justice Sotomayor referred to one of the ISL proponents’ distinction between procedural and substantive limits as a “logical morass”).
37 Id.
38 Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U.S. 787 (2015); Rucho v. Common Cause, 204 L. Ed. 2d 931, 139 S. Ct. 2484 (2019).
and the Tennessee Valley and Centro Hispano in July. We plan to host another clinic at their Phyllis Wheatley Center next summer. Our most popular new clinic was, by far, the Virtual Pro Se Name Change Clinic that we held in August in partnership with Legal Aid Society of Middle Tennessee and The Cumberlands and the Tennessee Bar Association’s Young Lawyers Division. The clinic filled up completely in around 2 weeks with 30 clients, and we had an amazing response from attorney volunteers. We are going to offer this clinic again in June and October so please watch for dates and sign-up links if you’re interested in participating!
In 2022, we began holding document preparation clinics. We partnered with LMU Duncan School of Law to hold a Power of Attorney Clinic in Loudon County and again to hold a Simple Wills Clinic in November at LMU’s Knoxville Campus. These clinics are a great avenue for attorney volunteers to help meet community needs and mentor law students all at the same time. We are excited to partner with UT Law Students and the Knoxville Community Action Committee to hold another Power of Attorney Clinic in Knoxville at the Western Heights Community Center in the early spring of 2023.
Overall, we offered 22 clinics in 2022 serving fellow East Tennesseans in our Knoxville service area. That is over 260 clients who received legal advice or documents thanks to the incredible support of local attorney and law student volunteers. As of December 9, 2022, attorneys in our service area have reported 569.5 total hours of Pro Bono Service to our program—and that’s JUST the hours that attorneys have reported. This translates to a total value of over $150,000 worth of valuable time donated by the amazing members of the bar this year!
I want to close by reiterating just how amazingly engaged and supportive the Knoxville area bar is. Working with Marsha Watson, Tracy Chain, Tammy Sharpe, Bridgette Fly, Jonathan Guess, and Jason Galvas at the Knoxville Bar Association is such an incredible opportunity and both myself and LAET are so grateful to be a party to such a unique and valuable partnership. I am so thankful for your dedication and commitment to pro bono service and wish you all a very happy New Year.
39 Arizona State Legislature, 576 U.S. at 817–18 (“Nothing in [The Elections] Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.”).
40 Rucho, 139 S. Ct. at 2506–07.
41 Id. at 2507.
42 Transcript of Oral Argument at 41-42, Moore v. Harper, 142 S. Ct. 2901 (2022) (No. 21-1271) (Justice Kavanaugh expressed concern that ISL proponents argued a version of the ISL that went “further than Chief Justice Rehnquist’s position in Bush v. Gore” because that opinion “acknowledge[d] that state courts would have a role interpreting state law. . . .”).
43 See generally id.; supra note 33.
44 See supra note 16.
My dream has always been to become a lawyer. When I was a child, I would create a courtroom in the living room, with my sister as the defendant, our stuffed animals as the jury, and my mother as the judge. Although the dream was always in me, it was the lessons that shaped me. It is impossible for me to tell my story without sharing the experiences that shaped my success.
There is no one who is exempt from faux pas, but learning from others’ mistakes is a wise thing to do. The key to navigating the proverbial road of life is to listen to those who have fallen in a hole and care enough to share their experiences. You will be able to achieve your goals faster and more efficiently if you avoid unnecessary mistakes and blunders. It was common for me as a child to watch my older brother or cousin get into trouble and make a mental note not to do the same. The same guideline applies to me as an adult. Mentors share wisdom with me, which I internalize, recall, and apply as necessary. Avoiding pitfalls has prevented me from experiencing unnecessary heartache or stress.
As humans, we have the freedom to decide who we want to be. As lawyers, we are held to a code of ethics. There is, however, nothing preventing a more rigorous internal code of ethics. Several years ago, my mentor told me to create boundaries regarding the things I would do or not do. In the moments where decisions must be made your limits must be solidly intact. It is easy to push limits when concrete boundaries do not exist. No exceptions should ever be made for anyone or any situation. Violating your personal code of ethics opens the door for others to misuse you or could lead to future regret.
I was tested on my ethical boundaries very early in my career. I refused to do a task for my boss that violated my code of ethics. I knew that my job was potentially at jeopardy because of my decision. I stood up for myself and was terrified of the financial and social consequences of doing so. I was a recent graduate and did not have many connections or influence. Unbeknownst to me, an experienced attorney was silently observing me; this attorney was so impressed by my ethics and morals, he recommended me to apply for a new position. I was offered and soon accepted this position for the State of Florida where I trained all new attorneys on the tenets of professionalism, ethics, and civility. Because I did not waver, I was eventually rewarded. My commitment to doing the right thing was recognized and valued in the end. Some decisions are not easy, and none are without consequence. I am solidified in my commitment to always be true to myself because of my experience. My license to practice is worth more than any unethical temporary gain.
Everything in life worth having will take hard work and sacrifice.
Tasks can appear so monumental that they overwhelm us. In the moments I could become paralyzed by the enormity of specific duties, I take a step back, recall all the other challenges I have overcome, and then I get to work! I break down tasks into small and achievable goals. Honestly, the projects that I have struggled with usually turn into my proudest moments. Taking on challenging tasks demonstrates the capability of doing more than is required. Everyone loves a person who goes above the call of duty. Also, your confidence is strengthened as you stretch your potential.
The legal profession reports some of the highest numbers of substance abuse among its’ members and is deemed one of the loneliest professions in the world. Many times, opportunities are accepted without considering the expense that saying “yes” will take on our lives. As your career develops, opportunities for leadership and projects are inevitable. However, all opportunities come at a cost. For example, a few years ago, I committed to accept any good opportunity that was offered without consideration of how it would affect other areas of my life. While that year was great for my career, I paid the price in my personal life. I experienced many challenges, I had to miss family gatherings, birthday parties, and other monumental celebrations.
This is not to discourage others from taking opportunities, but to encourage cognizance regarding the personal and professional sacrifices being made because of decisions. Enter each opportunity fully knowing the costs and benefits.
Make a commitment to yourself to live a good life. The meaning of a “good life” is defined by you. I have made a commitment to self-care; to peace of mind; and to living a fruitful life. For me, self-care extends to consistent counseling and coaching sessions, physical upkeep, and resting. I try not to overextend myself. I often say “no” to things that do not fit my goals. I have learned that “no” is a full sentence requiring no further explanation. This is especially important to women because some of us feel the need to explain our decisions to others.
I have met some of the most amazing people by committing myself to living a life of peace and productivity. These people have become my tribe and support system. I am now surrounded by caring and supportive friends living meaningful and authentic lives, who value and support me. Having my tribe has created a beautifully symbiotic relationship resulting in a very high satisfaction of life for me.
Learning from the lessons of my life has afforded for me to live a life I love abundantly while empowering others to do the same.
P.O. Box 2027 Knoxville, TN 37901
The Knoxville Bar Association (KBA) held its Annual Meeting on Friday, December 9, 2022. The President’s gavel was passed from Jason H. Long, a member of Lewis Thomason, P.C., to Loretta G. Cravens of Cravens Legal.
President Long thanked his fellow board members for their support and recognized the KBA staff for their dedication to East Tennessee attorneys. Incoming President Loretta Cravens thanked Mr. Long for his service to the Association, which included conducting judicial candidate member surveys and releasing a DEI Strategic Inclusion Plan.
In her remarks, Ms. Cravens thanked the members for their continued committed service to the KBA and the people of our community in need of legal services. She announced that during 2023, the KBA would place an emphasis on servant leadership, civility in public discourse, and equipping members with the tools, resources, and professional development needed to serve their clients.
During the meeting, the following KBA members were elected as officers for 2023:
President-Elect - Carlos A. Yunsan, Tennessee Appellate Courts
Treasurer – Jonathan D. Cooper, Knox Defense Secretary – Rachel Park Hurt, Arnett, Draper & Hagood
The membership elected the following KBA members to the four open positions on the Board of Governors: T. Mitchell Panter, Lewis Thomason, P.C. Samantha Parris, Law Office of Samantha Parris Courtney Epps Read, Watson Roach Batson & Lauderback Hon. E. Jerome Melson, Knox Co. Circuit Court, Division I
Elizabeth B. Ford was presented the KBA’s highest award, the prestigious Governors’ Award, which is given annually to a lawyer whose peers believe has brought distinction and honor to the legal profession. Ms. Ford has distinguished herself with a long and tremendous career of service to the bar and the community, including serving as the Federal Defender for the Eastern District of Tennessee.
Hon. Steven W. Sword was presented with the Judicial Excellence Award. The award was created in 2022 to recognize a judge felt by the Association to represent the very best in a judicial officer.
The President’s Award for 2022 was presented to Brooklyn Sawyers Belk for her work as Chair of the Strategic Inclusion Plan subcommittee of the KBA’s Diversity in the Profession Committee. The award for outstanding writing was presented to John E. Eldridge for his series of articles “Lesson Learned: Reflections from a Retiring Lawyer,” which appeared in the January through October issues of the KBA monthly magazine DICTA.
