DICTA. June 2021 - edit

Practice Tips: How to Draft a HIPAA-Compliant Subpoena for Medical Records . . . Page 7 Legal Update : Could A Regulatory “Sandbox” Work in Our Own Backyard? . . . Page 15

A Monthly Publication of the Knoxville Bar Association | June 2021

IMMIGRATION IN THE BIDEN ERA:

LEGISLATIVE PROPOSALS, EXECUTIVE ACTIONS, AND THE CHALLENGES OF ASYLUM AND REFUGEE POLICY

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DICTA

June 2021

In This Issue

Officers of the Knoxville Bar Association

June 2021

COVER STORY 16

Edicta Praetoris: Executive Orders and the Force of Law

CRITICAL FOCUS 5 President Cheryl G. Rice

President Elect Jason H. Long

Treasurer Loretta G. Cravens

Secretary Catherine E. Shuck

Immediate Past President Hanson R. Tipton

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

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

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

The Knoxville Bar Association Staff

President’s Message

The Power of Connection

How to Draft a HIPAA-Compliant Subpoena for Medical Records

The American Rescue Plan Act of 2021: Subsidized COBRA Coverage and Paid Leave Tax Credit Extension

Could A Regulatory “Sandbox” Work in Our Own Backyard?

In-House Counsel Not Licensed In Tennessee Must Register

7 13

15 19

Practice Tips

Management Counsel

Legal Update

Schooled in Ethics

WISDOM 6

Courteney Anderson-Barnes

Being Seen: How Daredevil and Otis Stephens Changed My Life

Profile: Chancellor Chris Heagerty

A Lifelong Lesson in Extending Grace

Spencer Fair – 2021 Barristers Law and Liberty Award Recipient

Leave it to Beaver! When Rodents Go Rogue

Story-Teller

Gorilla and the Bird: A Memoir of Madness and a Mother’s Love

Everything Is Fine…When You Have Cheese and Wine

Cameras and the Constitution

Another Thing I Don’t Understand

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Marsha S. Watson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Jonathan Guess Database Administrator

Elisabeth Martin Programs Administrator

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

Rebecca Eshbaugh LRIS Assistant

Dicta DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association.

All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment).

Exceptions to this policy must be cleared

by KBA Executive Director Marsha Watson (522-6522).

Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Sarah Booher Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho

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

Managing Editor Marsha Watson

KBA Executive Director

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

June 2021

9 10 11 18 21 24

Volume 49, Issue 6

DICTA

Hello My Name Is

25 27 29 31

What I Learned About Inclusion and Why It Matters Judicial News

Stories of COVID-19 & Beyond Attorney Profile

Of Local Lore & Lawyers

Boat Builders Well Read

Barrister Bites

Your Monthly Constitutional Long Winded

Tell Me A Story

E Pluribus Unum: One Immigrant’s

Journey to Citizenship and The Legal Profession

COMMON GROUND 4 20 22 22 28 30

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

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SECTION NOTICES & EVENT CALENDAR

Section Notices There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 522-6522.

Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Law Section for the upcoming CLE program “Best Practices for Successful Mediation of Employment Law Cases” on June 24. If you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777) or Daryl Fansler (546-8030).

Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. The next Pro Bono Debt Relief Clinic will be held virtually on June 12 and volunteer registration is available at www.knoxbar.org. If you have a program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000).

Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. Save the date for the “Annual Corporate Counsel Update” extended CLE on August 19. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Marcia Kilby (362-1391) or David Headrick (599-0148).

Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. Join the Criminal Law Section for the upcoming CLE program “Tennessee Expungement Law Update” on July 21. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (5248106) or Sarah Keith (215-2515).

Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123).

Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) or Jimmy Wright (637-3531).

Family Law Section The Family Law Section has speakers on family law topics and provides the opportunity to discuss issues relevant to family law practice. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040).

Government & Public Service Lawyers Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. Join the Government & Public Service Lawyers Section for the upcoming CLE program “An Ethics Update for Government Lawyers” on August 31. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Hon. Suzanne Bauknight (545-4284) or Ron Mills (215-2050).

Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440).

New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2019 will automatically be opted-in to the section. If you would like to get involved in planning Section activities, please contact Section Chairs Campbell Cox (330-2577) or Mary Newton (224-6591).

Senior Section The KBA Senior Section generally meets quarterly for lunch. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307).

Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963), Mary Miller (934-4000) or Tim Grandchamp (524-1873).

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June 3 8 9 9 9 10 16 16 22 23 24

New Lawyers Section CLE Professionalism Committee Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Meeting Judicial Committee Board of Governors Barristers Summer Fun CLE Diversity Comm. Book Club Event Zoom CLE with Judge Donald ADR Section CLE

July 8 8 13 13 14 14 14 27 30

Legislative Update CLE Judicial Committee Professionalism Committee Access to Justice Committee Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Meeting CLE Committee Barristers Summer Party

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

June 2021

PRESIDENT’S MESSAGE By: Cheryl G. Rice Egerton, McAfee, Armistead & Davis, P.C.

THE POWER OF CONNECTION May is past, June is here, and the summer stretches ahead of us.

While we didn’t get to hold that in-person Law Day event the KBA was optimistically planning back in December of 2020, things on the COVID-19 front have been improving fairly steadily since the first of this year. Many of us are vaccinated (or soon will be), limitations on gatherings have been reduced, and mask rules are significantly less restrictive. Just a few days ago I attended my first large gathering since early 2020 at World’s Fair Park—how exciting it was to be able to gather with friends, colleagues, and even strangers for the occasion! Whether we are introverts, extroverts or somewhere in between, relationships and connection are important to us all. After more than a year of few opportunities to gather in person, I find myself wondering, have our relationships suffered?

And, if so, what do we do about it?

Though it was a virtual event, the KBA did recognize Law Day last month. The celebration was highlighted by an engaging panel discussion facilitated by our own Penny White. I want to personally thank Professor White, as well as Judge Steve Sword, Andre Johnson, Esq., Judge Alberto Gonzales and Phyllis Nichols for the thoughtful preparation and candor they each brought to the program.

Actually, “Advancing the Rule of Law, Now” is a complex thing. Many viewpoints exist on what the Rule of Law is, what it does and how to advance it in our society today. Since January 6th, and even before, we’ve observed that our nation is deeply divided. Recent events at the national, state, and even local levels, including several tragic teen deaths in the Austin East community this year, have highlighted the great differences that exist in the “American experience” even here in Knoxville. With those differences come different perspectives on the rule of law and what it means. Our differences are not just political, philosophical, or social, they are individual. Even in our profession, we realize that we don’t always approach things the way our colleagues do. Where we come from, how we communicate with one another, what we prioritize, and our path in advancing the rule of law differs for each of us.

To me, the greatest thing about the KBA’s 2021 Law Day program was the chance it presented for us, as an association of lawyers, to connect and share in a discussion of this important principle around which our careers are built—the rule of law—and together to hear a sampling of the rich differences of perspective that exist in our community. In my mind, this is where advancing the rule of law in our community starts--with gathering together, being relational and discussing challenging subjects.

It requires respect for one another, respect for individual experiences and viewpoints, and willingness not only to hear, but to listen. Efforts like these are, hopefully, the points from which new and better relationships can grow and ultimately reduce the divisions between us.

Why? Because when we take time to listen to one another and get to know others on an individual level, even just a little bit, we recognize that we all have much more in common than we may think June 2021

at first glance. Being intentional about connecting with others and listening–really listening–is a critical part of understanding differences.

Making the effort to talk to those who think differently than ourselves and hear them can be a challenge. But as Judge Sword reminded us on Law Day, we lawyers are leaders. There are many ways to lead. Our routine roles as lawyers are as important in these efforts as the actions of our public figures. Vicki Clark stated in her 2019 Supreme Court Dinner remarks, “Most people go to law school because they value justice and fairness; those are the people who are natural candidates for servant leadership.”

She also cautioned that servant leaders must be empathetic—we cannot lead from our own reality--and we must listen to understand.

A mentor of mine often told me that practicing law had taught him one clear thing: People are crazy, all of them--including himself and me. By that, he meant we are all unique (some of us more so than others). He said it with a smile. My friend was a kind, empathetic person, and rather than singling out some clients, parties, witnesses, or even opposing counsel as “crazy,” he recognized that our uniqueness is part of what makes our work and, more importantly, life interesting.

Each spring, I watch with joy as trees sprout small buds, some red and others faintly green, and in a matter of weeks become lush and leafy, returning East Tennessee to the beautiful verdant landscape we are blessed to call home. This year as spring has become full, I’ve again enjoyed the yearly ritual of watching plants, trees, and bushes bloom with flowers and sprout leaves. I’ve relished in the variety of the forest and the gardens and the depth it adds to our landscape. In my own garden, I’ve been especially excited about a bank of azaleas my husband, Bill, and I planted last fall. The plants are small, but their blooms are full and vibrant. As the weather has warmed, I’ve delighted in seeing that particular slope of ground become more vibrant by the day. The beauty of the hillside is accented by a cluster of small white rosebushes at its center.

Equally full and vivid, they provide a strong contrast to the azaleas. As I leave my house each morning and return home in the evenings, this cheerful swath of flowers brightens my day. As I look at them, I can’t help thinking, would the azaleas be so pretty without the roses beside them? Would the roses alone provide such a dazzling view? And isn’t our community the same?

I hope as life continues to return to what we all consider more “normal”, we can begin to re-engage within the legal community and beyond and, as we do, that we will strengthen old relationships and build new ones. I hope we can use Law Day 2021 as a jumping-off point for connecting with and listening to those around us, building understanding, and leading in the ways lawyers best can to help build community and advance the rule of law. The KBA is here to be a part of that process— join us.

DICTA

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

COURTENEY ANDERSON-BARNES This month’s DICTA “Hello, My Name Is…” column features Courteney AndersonBarnes, Staff Attorney for the Office of General Counsel, Employment Group, at the Tennessee Valley Authority. Courteney graduated from the Lincoln Memorial University Duncan School of Law in May of 2020, and she holds two Bachelor’s of Arts degrees, the first in Political Science with a minor in Dance from the College of Charleston in Charleston, South Carolina, and the second in English from King University. Although she graduated from law school only one year ago, Courteney is already quite active in the KBA, as a member of the Law School Mentor Committee and as a member of the New Lawyers Section. I hope you enjoy this opportunity to get to know one of the KBA’s newest rising star lawyers.

What’s your binge-watching guilty pleasure?

I LOVE historical dramas (think: The Crown, Downton Abbey, Catherine the Great, Bridgerton, etc.). I enjoy watching them and then researching the truth about life during that time or the history behind the events in the show.

Why did you decide to go to law school?

I have wanted to go to law school for as long as I can remember. I never actually knew any attorneys growing up until I was well into my teens, but, for some reason, I was drawn to the law and found ways to learn more about it, such as through high school mock trial.

What was your work experience before your legal career?

I had two careers prior to attending law school. I worked as a TV news producer, with some reporting, for about five years. I also worked as a family law and personal injury paralegal for a couple years.

What do you like about Knoxville?

I like the size of the city and all it has to offer in terms of activities for me and my family. It feels like a city but there’s also a small-town feel.

Tell me about your family.

I have an amazing husband of eight years, Don, and we have a sevenyear-old son, Eli. They are my motivation and my inspiration. Because my family was in Bristol, Virginia, while I was in law school, I spent a lot of time away from them. My husband was amazing at holding down things at home and attending things with our son so he never felt my absence. My son is an inquisitive and kind little boy. Eli loves asking about the many duties of lawyers. He’s a gifted soccer player, and he loves all things dinosaur and Pokémon!

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DICTA

June 2021

PRACTICE TIPS By: Keevana Edwards 2021 Graduate of the UT College of Law

Cathy Shuck

VP for Legal Services & General Counsel, East Tennessee Children’s Hospital

HOW TO DRAFT A HIPAACOMPLIANT SUBPOENA FOR MEDICAL RECORDS I. Introduction

While drafting a subpoena for medical records, attorneys should be mindful of who their audience is. More than likely, these subpoenas will be addressed to an organization that qualifies as a covered entity under the Health Insurance Portability and Accountability Act (“HIPAA”).

HIPAA covered entities can be health plans, health care clearinghouses, and health care providers who maintain any health information in electronic form.1 HIPAA generally prevents covered entities from disclosing medical records unless certain conditions are met.2 When seeking medical records using a subpoena request, drafting attorneys should proactively comply with the HIPAA requirements that permit covered entities to make such disclosures.3 II. Subpoena for Medical Records Accompanied by A Court Order

Where possible, an attorney drafting a subpoena for medical records should obtain a court order requiring disclosure of the medical records signed by a judge or issued in a grand jury proceeding. When a covered entity receives a subpoena for medical records accompanied by a court order from a court or agency with jurisdiction over the covered entity, the covered entity is required by law to comply with the subpoena and make the disclosure without satisfying any additional conditions or processes.4 Drafting attorneys should keep in mind that obtaining a court order is the best way to ensure timely production of medical records.

III. Providing Satisfactory Assurances to the Covered Entity If the drafting attorney cannot obtain a court order signed by the judge to accompany the subpoena, then the drafting attorney should be prepared to provide a satisfactory assurance that the rights of individual whose medical record is the subject of the request have been protected through either notice or a qualified protective order.5 A. Notice to the Individual

First, the drafting attorney may consider assuring the covered entity that the drafting attorney used reasonable, good faith efforts to give the individual whose medical record has been requested notice of the request.6 The drafting attorney should ensure the notice provided contains adequate information to allow the individual to object to the subpoena.

The drafting attorney must wait to provide this assurance to the covered entity until the opportunity for the individual to raise objections has lapsed and either the patient raised no objections, or the court has already overruled the patient’s objections.7

B . Qualified Protective Order

Alternatively, the drafting attorney may consider assuring the covered entity that the drafting attorney has made reasonable efforts to secure a qualified protective order to guard the confidentiality of the protected health information.8 A qualified protective order is an order of a court or of an administrative tribunal or stipulation that: (1) Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which the records are requested; and (2) Requires the return to the covered entity or destruction of the protected health information at the end of the litigation or proceeding.9 June 2021

Satisfactory assurances that the drafting attorney made reasonable efforts to secure a qualified protective order can be demonstrated by a statement or documentation that indicates the parties to the dispute have agreed to a protective order and that it has been submitted to a court with jurisdiction. Alternatively, it can be demonstrated by simply showing the drafting attorney seeking the protected health information has requested a qualified protective order from the court or tribunal.10 IV. An Alternative Option

Where an attorney drafting the subpoena for medical records is unable to obtain a court order to accompany the subpoena and is unable to provide either of the two assurances described above, then the drafting attorney must provide an authorization from the patient to the covered entity for the release of the medical record.11 The authorization must comply with various requirements as described below.

A. Elements of a HIPAA Authorization

First, the authorization cannot be presented to the patient in combination with any other document and the authorization must be written in plain language. The authorization must also include descriptions of the information to be disclosed and each purpose of the requested use or disclosure. Additionally, the authorization must alert the patient to the name or class of persons requesting the disclosure and the potential for redisclosure. Moreover, the authorization must include a statement of the patient’s right to revoke the authorization in writing and a statement indicating the inability of the covered entity to condition treatment or payment on consent. Finally, the authorization must include an expiration date and the patient must sign the authorization.12 Generally, a covered entity can provide the drafting attorney with a compliant authorization form for the drafting attorney to complete and return.

Conclusion

In conclusion, whenever possible, an attorney drafting a subpoena for medical records should obtain a court order to guarantee that the covered entity can easily disclose the medical record in response to the subpoena request in compliance with HIPAA. If the drafting attorney cannot obtain a court order, the drafting attorney should begin proactively satisfying the conditions of at least one of the satisfactory assurances. As a last resort, the drafting attorney must rely on the individual’s willingness to complete a HIPAA compliant authorization for the disclosure of the medical record.

45 CFR 160.103.

45 C.F.R. § 164.512.

3

164.512(e).

4

164.512(f)(ii)(A).

5 See 164.512(e)(1)(ii)(A & B)).

6

164.512(e)(ii)(A).

7

164.512(e)(iii)(C) 8

164.512(e)(ii)(B).

9

164.512(e)(V).

10

164.512(e)(iv)(B).

11

164.508(c).

12 Id. 1 2

DICTA

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W H AT I L E A R N E D A B O U T I N C LU S I O N A N D W H Y I T M AT T E R S By: Luke Shipley Shipley & Swain PLLC

BEING SEEN: HOW DAREDEVIL AND OTIS STEPHENS CHANGED MY LIFE You might be wondering what a straight, white, Baptist man is doing writing about diversity in our profession. Well, you wouldn’t know it just by looking, but I’m legally blind. Oddly enough, being a blind lawyer has taught me just how important it is to be seen.

I grew up in the late ‘80’s in very rural, northeast Tennessee. There weren’t many role models for a little blind kid. In my community, being “successful” as a blind person meant that you’d find a menial job that would give you enough money so you wouldn’t be a burden on your family that you still lived with, if you didn’t go into assisted living. I didn’t want any part of that.

All my life, I’ve wanted to be a lawyer. I don’t know where I got the idea. There are no lawyers in my family and I never knew any personally while I was growing up. That didn’t matter, though. I told anyone who would listen that I was going to be a lawyer.

Some folks (like my family) told me I could do it, but the vast majority thought it was just “precious” that the little blind kid thought he could move away one day to be a lawyer. It didn’t take long before I stopped talking about what I wanted to do, because I couldn’t stand another person telling me that I needed to have realistic goals and shoot for something I could actually do.

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I stopped talking about it, but I didn’t stop thinking it. One day, I found a Daredevil comic, the story of a crime-fighting superhero who is a blind lawyer by day. I was hooked. I squirreled away money from odd jobs and had quite the stash of Daredevil comics.

It was fiction, but it also showed me that someone out there didn’t think a blind lawyer was so crazy.

In high school, a guidance counselor got me to ‘fess up that I wanted be a lawyer. She told me about “this professor in Knoxville who’s blind and does something at the law school.” Of course, she was talking about Professor Otis Stephens. I started digging for information, and I called him up and talked to him for a long time. He thought all the naysayers were ridiculous—not my aspirations.

For the first time, I found a living, breathing embodiment of what I wanted to be. My dream wasn’t just a pipe dream anymore.

Today, I own my own firm with my wife. We employ people. I go to court. I write briefs. My notes are in 48-point type. I carry my white cane with me wherever I go. I want to be seen. Because, for this little blind kid, it didn’t take any special program to ensure blind people are represented in the legal field to get me here. All I needed was someone to see me, and I hope one day another little blind kid sees me and keeps dreaming, too.

DICTA

June 2021

JUDICIAL NEWS By: Matthew T. McDonald Bernstein, Stair & McAdams, LLP

JUDICIAL PROFILE: CHRISTOPHER D. HEAGERTY KNOX COUNTY CHANCERY COURT, PART III On January 20, 2021, Christopher D. Heagerty was sworn in as Chancellor for Part III of the Chancery Court for Knox County, Tennessee, succeeding Chancellor Michael W. Moyers, who retired (to a busy private practice). I recently had the pleasure of sitting down with Chancellor Heagerty to discuss his background and experience thus far in his role as our newest Chancellor.

Chancellor Heagerty was born September 28, 1964 in Knoxville, Tennessee. He graduated from Bearden High School in 1982. With the exception of a brief residency at Memphis State, he has continuously lived and worked in his hometown of Knoxville. During college he was a proud member of Sigma Chi fraternity and served as the Chapter Advisor for ten years. He transferred from Memphis State to the University of Tennessee, Knoxville, where he attended the College of Law. His early professional career developed under the tutelage of Archie Carpenter at the firm of Carpenter & O’Connor. The Chancellor fondly recollected the time he spent developing trial skills alongside Mr. Carpenter. He readily acknowledged, “Archie taught me how to be a litigator, trying every kind of case you could try.” After his time at Carpenter & O’Connor, he took a position with Hodges, Doughty & Carson, where he also spent much of his time litigating a variety of cases.

One of the issues that jumped out at me as I reviewed the notes from my interview with the Chancellor was his public service. For three years during college, and as part of his service through the Sigma Chi fraternity, he volunteered as a cook in the kitchen of the Knox Area Rescue Ministry. His service to the people of our area continued after law school. From 2002 through January of this year, Chancellor Heagerty served Knox County as an active member of the Knox County Election Commission. From 2011 forward, he served as Chair of the Commission. His nearly nineteen years of service on the Election Commission earned him the honor of being the longest-serving member on the Election Commission in Knox County’s history.

In 2015, the Chancellor opened a solo practice, frequently appearing in the Knox County Chancery Court. It was at this time we became personally acquainted, as I was then serving as the law clerk for the Chancellors and as a Deputy Clerk and Master.

However, his experience in Chancery began more than twenty years prior when he tried his first Chancery case. He recalled that was a worker’s compensation matter before Chancellor Cate. He estimated that since starting a solo practice, the majority of his cases in Chancery have related to conservatorship and guardianship matters, an ever-growing caseload in Chancery.

June 2021

Since his appointment to the bench in January of this year, Chancellor Heagerty unsurprisingly has had little time to reflect on his first few months in this role, acknowledging the unforgiving pace at which judicial officers must prepare, consider and determine the matters before them.

Compounding this issue is the great variety of suits brought in the Chancery Court, where the broad spectrum of applicable law requires the judicial officer to give careful reading to often arcane statutes and case law. On any given morning, a Chancellor may encounter a routine domestic matter, followed by a suit to determine abandoned mineral interests, followed by a contested probate matter. Holding up a copy of Title 29, Chancellor Heagerty stated one of the most important preparations for his new role consists of “learning everything in here.”

The Chancellor also made special note of the importance of the Clerk and Master’s office in the transition from private practice to the bench. He emphasized the communication flowing between the Clerk and Master and the Chancellors, where each supports the other, has been of great help in this transition. He also reflected on the process of adjudication in the time of COVID-19. He stated, “I dislike Zoom. It is efficient and so forth, but I would rather hear the tone of the peoples’ voices rather than see them on a T.V. screen—and with things like adoptions, to be able to see the parents get excited.”

Through his dedication to public service over the years, the Chancellor has demonstrated a commitment to the people of East Tennessee. This dedication, coupled with his accomplishments as a civil litigator, have culminated in this latest opportunity to serve. Both the bench and the bar are fortunate to have Chancellor Heagerty in office.

DICTA

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STORIES OF COVID-19 AND BEYOND By: Emily Vowell Litigation Manager Cordell & Cordell

A LIFELONG LESSON IN EXTENDING GRACE Regardless of the type of law we practice, many of our clients come to us during what they consider to be one of the most difficult times in their lives. Clients going through major life changes are frequently stressed, angry, and vulnerable, and while these feelings and characteristic are not necessarily unique to family law clients, we often see these feelings amplified by the inherently emotional nature of their cases. As their counsel, we have to be the unemotional, tempered voice of reason, regardless of what is happening in our own lives. We represent people from all walks of life, and many of our clients lead lives that are so different from ours that we are certain we have nothing in common, no shared experiences, and cannot otherwise relate to them on any level. This changed with the onset of the COVID-19 pandemic.

As a result of the pandemic, for the first time in our careers, we, our colleagues, our Judges, and our clients now all have something in common. We have all experienced what the experts refer to as a “mass trauma” (otherwise known as a “collective trauma”), which takes place when the same event, or series of events, traumatizes a large number of people within some shared time span.1 In early March 2020 when the COVID-19 pandemic caught most of America off-guard, we all watched, together, as the pandemic spread across the globe, then arrived in our country, then in our towns, then in our hospitals, and then brought our lives to an abrupt halt. This was shocking, to say the least. I distinctly remember thinking how much smaller the world instantly felt, because the pandemic was everywhere. For the first time in my 13 years of practice, I suddenly had something in common with every single one of my clients. We were all living this surreal “quarantine life,” maybe not in the exact same way, but especially in the early months of the pandemic, we were all affected.

After local shutdowns went into effect and the TN Supreme Court issued their March 13, 2020 Order, many of us (including my husband and me) became attorneys who worked from home...without childcare.

Balancing our workloads with keeping our 5-year old twin sons out of the ER became a daily challenge (we ultimately prevailed, but it certainly wasn’t for their lack of trying). As a result, there were many days/nights that my main working hours were 9pm- 3am, as they were for many of my clients and colleagues. Almost immediately, professional communications amongst attorneys and to our clients took on a more congenial tone, and our emails opened with phrases like “I hope all is well” and closed with “stay safe out there,” because it seemed necessary to acknowledge that nothing was “normal” anymore. There was something comforting about feeling that we were “all in this together,” especially since none of us really knew anything about this illness, or what to expect from one day to the next.

Meanwhile, as we were making adjustments to work from home, or meet with clients remotely from our offices, or adopt policies to protect the health and safety of employees, we were also having to address to the effects of the Court closures and suspension of in-person proceedings on our clients’ lives and domestic cases. Previously-scheduled hearings and trials were delayed until further notice, which only intensified the anxiety and stress that they were already experiencing as a result of their divorce, custody modification, or other domestic issue. Because we couldn’t tell them exactly how or when the closure would end, we worked to find creative solutions to keep their cases moving as best we could. Many of us set up our Zoom accounts, and by March 18 I was (virtually) welcoming

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a client into my home office for the first time so we could attend a Zoom mediation. Judges and courts worked as fast as they could to figure out how to implement remote access through Zoom or telephonic hearings, but we all recognized that there were some matters that were too dependent on witness credibility for Zoom.

As expected, it didn’t take long for COVID-related family law issues to arise. Many parents had opposite opinions on the seriousness of the pandemic. Some parents insisted that their children shouldn’t spend time at the other parent’s home during quarantine for a plethora of reasons, which made an already-emotional situation even more so for some.

Stimulus checks were sent to the address on the last joint tax return or the last account in which a previous refund directly deposited, and we had to determine how to divide the payments for children. Parents could not agree whether their children would attend virtual or in-person school, of course, and needed a solution before the decision deadline. Unexpected job layoffs and furloughs immediately impacted child support situations.

Family law attorneys were litigating these novel issues “on the fly” and we worked diligently to find solutions as quickly as possible.

Throughout the year, despite the best efforts of all, access to courts was uncertain- they would open, hearings and trials would be scheduled and prepared for, only to be continued at the last minute due to someone’s illness, or mandatory quarantine, or another complete shutdown of the court due to rising case counts. There was no way to avoid breaking this bad new to clients, of course, but given the emotional, physical, and financial tolls their cases were already having on them, they understandably grew more impatient and frustrated, and often times didn’t hold back in expressing that to us. Although we had no control over many of these delays or other issues created by COVID, we often caught the brunt of their frustration and disappointment when they found out their lives would continue to be on hold. I empathized with them because I could truly relate to the stress of the pandemic- we were all living it, every day. But in those moments when COVID would cause things to happen beyond my control, I gave my clients the only things I could: patience, compassion, and grace. Because I knew that whatever stress I was feeling, it paled in comparison to that of our clients who were also living the emotional nightmare of a contentious family law case. They needed closure, but in those moments, they also needed grace, as we all do from time to time.

As we all move forward and hopefully put this bizarre period behind us, there are many things that I will not miss (masks, temperature checks, various supply shortages), but there are other things that I will continue to do, and would encourage others to do as well. We can (and should) continue to communicate with our colleagues in a congenial tone, while still zealously advocating for our clients. We can continue to mediate

by Zoom if we need to, because, well, why wouldn’t we?! And we can continue to show our clients empathy and compassion, and extend them much-needed grace, as the benefits to them far outweigh the costs to us.

Because if the “collective trauma” of the pandemic has shown us anything, it is that we are all living this life together, and we never know what 2022 may bring.

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Ed Prideaux, How to Heal the ‘Mass Trauma’ of Covid-19. BBC Future, BBC (Feb. 3, 2021) www.bbc.com/future/article/20210203-after-the-covid-19-pandemic-howwill-we-heal.

June 2021

AT TO R N E Y P R O F I L E By: Mikel A. Towe Lewis Thomason, P.C.

SPENCER FAIR – 2021 BARRISTERS LAW AND LIBERTY AWARD RECIPIENT The Law and Liberty Award is presented every year during the KBA Barristers Law Day Celebration. The Law and Liberty Award recipient is someone who strives to foster and maintain good relationships in the legal community and amongst the community at large, works to advance the understanding of the law and legal processes in the nonlegal community, sets an example of good citizenship, gives time for volunteer work within the legal profession and otherwise, evidences high professional standards in his or her occupation, and expresses concern for the safeguard of personal, political, civil, and religious liberties. This year’s recipient, Spencer Fair, is no doubt deserving of this award.

the Veterans Clinic but also for his dedication to his work and his family.

Through Spencer’s unrelenting efforts, he has made himself well-known as a fixture in the Knoxville legal community and someone who we are all grateful to know.

In 2016, after meeting with other leaders in the Tennessee Bar, Spencer spearheaded the development of a legal advice clinic for veterans as part of the Barristers Access to Justice Committee. After months of planning, the first Veterans Clinic was held here in Knoxville, and helped to match attorneys with service members and military families in need of legal assistance.

The Veterans Clinic has grown and gathered momentum over the past several years, and when faced with the pandemic, Spencer worked tirelessly with the KBA and Legal Aid of East Tennessee to develop a virtual option for the program. This virtual option allowed the clinic to continue despite the pandemic and allowed attorneys in our community to continue serving veterans in need of legal advice. The Veterans Clinic has reached veterans of all ages and all types of legal issues. Over the past five years more than 100 attorneys and law students have assisted close to 500 veterans and their families through these Veterans Clinics.

Participation in the Veterans Clinic has also helped people within the legal community, including first year attorneys and law students who have gained practical, hands-on experience addressing real-world issues that they simply don’t get to experience in law school. Without Spencer, the growth of the program could not have been achieved, and it was accomplished with the grace and humility that have characterized Spencer’s career.

June 2021

EDITORS’ NOTE:

DICTA is a monthly publication of the Knoxville Bar Association. DICTA is offered to all members of the Knoxville Bar Association as one of the many benefits of membership. This issue represents one of our “super circulation issues” and is sent not only to all members of the Knoxville Bar Association but to all lawyers licensed to practice law in Knox County and all of its contiguous counties, Blount, Loudon, Anderson, Union, and Sevier.

DICTA is an important publication to the Knoxville Bar Association and it provides news regarding members and events of the Knoxville Bar Association as well as information on upcoming CLE seminars. It also provides news and notices from the Knoxville Bar Association president, the Barristers, and the Knoxville Bar Association's nineteen different committees and eleven different sections. If you are interested in becoming a member of the Knoxville Bar Association, please contact KBA Executive Director Marsha Watson at 505 Main Avenue, Suite 50, P.O. Box 2027, Knoxville, Tennessee 37901-2027, (865) 522-6522 or access our award-winning website at www.knoxbar.org.

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

Spencer is known throughout the Knoxville Bar as someone who is extremely professional and sets a good example for others in his firm and the Knoxville Bar as a whole. Spencer is always pleasant but is a formidable legal opponent who zealously advocates for his clients.

Spencer is also well-known for his community service efforts through

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Even after developing the program, Spencer’s volunteer efforts never ceased. Over the past five years, Spencer has been the point person to recruit volunteer attorneys, law students, and paralegals, develop relationships with area veterans’ groups, and represent the KBA in media interviews to promote the clinic.

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June 2021

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Andrew M. Hale Kramer Rayson LLP

THE AMERICAN RESCUE PLAN ACT OF 2021: SUBSIDIZED COBRA COVERAGE AND PAID LEAVE TAX CREDIT EXTENSION

As part of the federal government’s ongoing response to the Coronavirus pandemic, on March 11, 2021, President Biden signed a $1.9 trillion stimulus package billed as the American Rescue Plan Act of 2021 (“ARPA”). This large piece of legislation will have an impact on employers and their employees in two principal respects. First, it requires employers’ health insurance plans to offer fully subsidized COBRA continuation coverage to “assistance eligible individuals” between April 1, 2021 through September 30, 2021. Second, the ARPA extends the availability of payroll tax credits to employers who voluntarily provide employees with paid leave due to COVID-19 related scenarios. Further, the ARPA adds three new qualifying scenarios for eligible paid leave and opens up the eligibility requirements for 12 weeks of paid family leave.

COBRA Subsidies

The ARPA requires employers’ health insurance plans to offer fully subsidized COBRA continuation coverage to “assistance eligible individuals,” or “AEIs,” between April 1, 2021 through September 30, 2021. An AEI is a qualifying plan participant who loses, or has lost, health insurance coverage due to an involuntary termination or a reduction in hours worked. Employees who are terminated for gross misconduct are not considered AEIs. Further, on its face, the ARPA does not provide a distinction between a voluntary or involuntary reduction in hours.

There are two groups of AEIs: (1) those who are entitled to COBRA benefits between April 1, 2021 and September 30, 2021, timely elected their COBRA coverage, and have been paying COBRA premiums; and (2) those who were entitled to COBRA but either failed to elect coverage or timely elected but then dropped coverage prior to April 1, 2021. The ARPA extends the COBRA election period for those in the second group. Further, as long as the former employee qualifies as an AEI and remains COBRA eligible for the six-month subsidy period, he or she may elect subsidized COBRA coverage beginning on April 1, 2021 if their COBRA election period expired prior to that date. Importantly, though, ARPA does not extend the maximum COBRA coverage period, which is generally 18 months from the date of termination or reduction in hours.

Keep in mind that the COBRA eligibility period (18 months) and the subsidy period for AEIs (6 months) are almost always going to vary.

So, for example, an employee terminated in June 2021 would only be eligible for three months of the subsidy ( July, August, and September).

The eligibility period would then continue to run for 18 months, with 15 out of the 18 months being unsubsidized.

Former employees whose 18-month COBRA eligibility window has already passed are not eligible for the ARPA subsidy. Additionally, if an AEI becomes eligible for other group health insurance coverage or Medicare, then they are required to notify the plan of this fact and will lose their COBRA subsidy eligibility.

The ARPA requires employers to provide notices to AEIs that inform them of their eligibility for the COBRA subsidy program. Notice is required for both groups of AEI’s – those who become eligible during the six-month subsidy period, and those still within their COBRA coverage period who previously elected, but discontinued, their COBRA

coverage prior to April 1, 2021 or who declined COBRA previously.

For the later group of AEIs, notice must be provided by no later than May 31, 2021. They will then have 60 days from receipt of the Special Election Notice to elect subsidized COBRA coverage. Additionally, employers are required to issue a notice to AEIs when their subsidy is expiring. This notice informs the AEI of the specific date their subsidy is expiring, and it must be sent at least 15 days before expiration, but no earlier than 45 days before expiration. In April, the Department of Labor released model notices available on their website that should be used by employers.

The COBRA subsidies will come in the form of a tax credit against an employer’s quarterly payroll taxes for the costs of the subsidized coverage during the six-month subsidy period. If the credit is greater than the tax owed, than the employer will be refunded as if there was an overpayment.

Extended Availability for Paid Leave Tax Credit Although the ARPA does not extend the paid leave mandated in the Family First Coronavirus Response Act (“FFCRA”), it does extend the availability for tax credits through September 30, 2021 when paid leave is provided in accordance with the FFCRA and the new ARPA provisions.

The FFCRA provided six scenarios that triggered tax-creditqualifying paid leave. With the advent and proliferation of the COVID-19 vaccine and the lingering effects the virus continues to have on the workplace, the ARPA has expanded this list to add three new qualifying scenarios: (1) getting tested or awaiting test results from a COVID-19 test when the employee was actually exposed to COVID-19 or the test was requested by the employers; (2) the employee is getting the vaccine; or (3) the employee is recovering from illness or side effects associated with getting the vaccine.

The ARPA further expands the availability of family medical leave originally provided under the FFCRA. Previously, the FFCRA provided 12 weeks of Emergency Family Medical Leave (“EFML”) to care for a child whose school or day care was closed because of COVID-19. The ARPA now gives employees 12 weeks of EFML leave for any of the nine qualifying reasons discussed above. Additionally, the ARPA amends the FFCRA so that the entire 12 weeks of EFML is paid, rather than only 10 out of 12 weeks being paid. Finally, the limit on the tax credit for family leave wages has been increased to up to $12,000 per employee, or $200 per day.

The Department of Labor has released FAQs1 and other guidance in an effort to assist employers in complying with the nuances of the ARPA. Employers should consult this guidance in an effort to comply with the COBRA subsidy requirements and determine whether they will elect to provide paid leave in order to receive the tax credits. Further, employers should make a determination of which former employees may be considered an AEI, and send notices using the provided forms accordingly.

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For FAQs regarding the COBRA subsidies, see https://www.dol.gov/sites/dolgov/ files/EBSA/about-ebsa/our-activities/resource-center/faqs/cobra-premiumassistance-under-arp.pdf; For FAQs regarding the COBRA model notices, see https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resourcecenter/faqs/cobra-model-notices.pdf.

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.

June 2021

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The Holistic Legal Incubator of The Justice Initiative is a wraparound program that teaches new lawyers and social workers a holistic, client-centered, interdisciplinary representation model. The Holistic Legal Incubator is now accepting applications on a rolling basis for 2021/2022, with an official start date being late August/early September.

Learn more at https://justiceinc.org/how-to-apply or by contacting Greyson Dulaney at gdulaney@justiceinc.org.

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June 2021

L E G A L U P DAT E By: Ian P. Hennessey London Amburn

COULD A REGULATORY “SANDBOX” WORK IN OUR OWN BACKYARD?

You would be forgiven if the following headline, from a recent article posted on Forbes.com, left you a little confused: “Utah’s Effort To Expand Regulatory Sandboxes Is Smart Move.”1 While at first glance it might sound like the State of Utah is overseeing some rather bland playground equipment, the “regulatory sandbox” is something truly groundbreaking, and its implications for the future of the practice of law may run even deeper.

A Different Kind of ‘Sandbox’

A regulatory sandbox is “a policy tool through which a government or regulatory body permits limited relaxation of applicable rules to facilitate the development and testing of innovative business models, products, or services by sandbox participants.”2 As one report3 described it, “[a]n invitation to ‘play in the sandbox’ is ultimately an invitation to collaborate, build something new, test it out, and get a little sandy in the process. The framework of the sandbox keeps the ‘mess’ of creation mostly contained.”4

In the context of the legal profession, it means the temporary or selective relaxation of rules limiting the practice of law, and the ownership of law firms, exclusively to lawyers. The explicit goal of the sandbox is to increase innovation in the delivery of legal services, lower prices and costs, and thus close the access gap.5 What’s All The “Buzz” From The Beehive State?

In August 2020, the Utah Supreme Court unanimously approved a pilot sandbox program “to assess changes to the governance of the practice of law” in the state.6 The announcement came two years following a letter from the then-president of the Utah State Bar requesting the Utah Supreme Court establish a “small working group” to study possible reforms and make recommendations “to substantially reform the regulatory setting in which lawyers operate.”7 But why? The reason behind the letter probably sounds familiar: Access to justice in Utah remains a significant and growing problem.

It can be readily seen in the data regarding self-represented parties in the Utah court system. However, it is a much broader and complex issue of which not only involves all sort of legal needs but overlaps with a host of other challenges confronted by low and middle-income people living in Utah.8

In response to the letter, the Utah Supreme Court established The Utah Work Group on Regulatory Reform, which issued a report in August 2019.9 In addition to citing the “access to justice gap,” the group noted that we “live in an age where disruptive innovation is occurring non-stop.”10 More specifically:

The potential benefits for access to justice from legal disruptions are significant. If legal services can be provided to litigants and those with potential legal problems in a much more cost effective [sic] way, then true access to justice becomes possible for millions of people who currently get no help and do nothing. Technology, especially online legal services, exponentially increases the potential to improve access to justice. But it also simultaneously increases the risk of legal and practical harm to users if those services are not of sufficient quality. However, the potential benefits are too large to pass up, so changing how legal services are regulated to both open the door to innovation and protect litigants and other users in responsible ways is critical.12 Based on the recommendations set forth in the report, the Utah Supreme Court issued its Standing Order No. 15,13 which initially established the Office of Legal Services Innovation to administer a pilot legal regulatory sandbox for two years.14 In its 2021 Annual Report,15 the Utah Judicial Council noted that the court, through its Office of Legal Services Innovation, had “to date, authorized over a dozen entities to offer services in the sandbox.”16 A review of the Office of Legal Services Innovation’s website shows that these authorized entities appear to be a mixture of software companies with some degree of lawyer ownership and/or oversight, law firms with 50% or more nonlawyer ownership, and companies offering some form of legal subscription or benefits plan.17 On April 30, 2021, the Utah Supreme Court issued an amended Standing Order No. 15 extending the regulatory sandbox to seven years through the end of 2027.18 Will Tennessee “Volunteer” To Be Next?

Utah is by no means the only state with an access to justice gap.

In 2009, the Tennessee Supreme Court issued Rule 50 establishing the Tennessee Access to Justice Commission (“Commission”).19 The Court cited “the urgent and tremendous legal needs gap in Tennessee, a gap that is only growing in the current economic situation as Tennessee’s indigent and working poor families face more legal problems caused by unemployment, predatory loans, uninsured medical bills, domestic violence, evictions, and foreclosures.”20 The Commission’s work has been successful on many, many fronts over the past twelve years. Despite this tremendous work, however, unfortunately a significant access to justice gap remains.

As we emerge from the pandemic, what’s next for our profession and for the challenge of addressing the unmet legal needs of our neighbors?

While we certainly have no crystal ball, there are several factors worth noting:

Technology has been the leading force in disrupting the way we acquire and consume goods, sleep, work, and play. And it has certainly already altered the practice of law as we have heretofore known it. It has enabled litigants to reduce the costs of litigation, from providing them with access to information about the legal system they did not previously have to pressuring lawyers to use tools that make the litigation process less costly.11

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The working group concluded, however, that our “age of disruption” has also created an opportunity to advance the cause of access to justice:

Tennessee has a population of 6.8 million, which is more than twice the size of Utah. It is reasonable to suspect that the number of Tennesseans with unmet legal needs is at least double that of Utahns.

We were already living in an “age of disruption” before the pandemic. In 2016-17, my law partner Jason Long made educating and empowering Tennessee lawyers to adapt to and thrive in today’s evolving legal marketplace a focus of his year as president of the Tennessee Bar Association. It cannot be disputed that the pandemic has dramatically increased the evolutionary forces within the legal marketplace, particularly Continued on page 20

June 2021

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IMMIGRATION IN THE BIDEN ERA: LEGISLATIVE PROPOSALS, EXECUTIVE ACTIONS, AND THE CHALLENGES OF ASYLUM AND REFUGEE POLICY

With the Biden presidency moving beyond its first 100 days, the implementation of the President’s immigration agenda has proved to be a complex exercise in multi-tasking. As the new administration has grappled with the humanitarian and logistical challenges at the southern border, it has simultaneously sought to advance legislation in a gridlocked Congress and has already issued nearly 100 executive actions on immigration. In this article, we will survey the new administration’s legislative proposals and some of its more prominent executive actions.

In addition, we will examine the administration’s efforts to address the ongoing challenges involving asylum and refugee policy.

Proposed Legislation On his first day in office, President Biden proposed the U.S. Citizenship Act of 2021,1 a bill that would overhaul the U.S. immigration system. Among other significant changes, the bill would create a path to lawful permanent residency and eventual citizenship for many of the 10-million-plus unauthorized migrants residing in the U.S. Like every other attempt at comprehensive immigration reform in recent history, there is no realistic chance that Congress will enact this legislation.

Even the bill’s lead proponent in the Senate, New Jersey Senator Bob Menendez, said that he was “under no illusions” about the “Herculean task” of “passing immigration reform through the Senate.”2 As a result, advocates of immigration reform in Congress have shifted their focus to more targeted measures. One such initiative is the American Dream and Promise Act of 2021.3 This is the latest effort to provide relief for Dreamers, a group that encompasses over a million individuals, most from Mexico and Central American countries, who have resided in the U.S. for years after arriving as children. Many Dreamers have received limited protections under Deferred Action for Childhood Arrivals (DACA), which the Biden administration formally revived after the Trump administration unsuccessfully attempted to rescind the program.4 The American Dream and Promise Act would provide more permanent and meaningful relief in the form of expedited permanent residence for existing DACA beneficiaries and conditional permanent residence for new qualifying applicants. On March 3, 2021, the House passed the American Dream and Promise Act by a vote of 228-197. Its fate in the Senate is uncertain, especially if it cannot be enacted through reconciliation and would require at least 10 Republican votes to overcome a filibuster. In consequence, Dreamers remain caught in the state of uncertainty that has characterized their status since the original DREAM Act was proposed more than twenty years ago.

Another more targeted legislative effort is the Farm Workforce Modernization Act of 2021.5 This bill would create a new immigration status known as a “certified agricultural worker,” which would be available to qualifying non-citizens who have performed at least 1,035 hours of agricultural labor during the two-year period preceding the enactment of the bill. Beneficiaries would be permitted to renew their status for up to five and a half years, and long-term certified agricultural workers would be eligible to apply for lawful permanent resident status and, eventually, citizenship. The bill would also modify the H-2A visa program for temporary agricultural workers by streamlining the application system, clarifying the requirements for employers, and expanding protections

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for H-2A workers as to housing and other labor conditions. The Farm Workforce Modernization Act passed in the House and, of these three bills, it arguably has the best odds in the Senate because of the benefits it would provide to both employers and migrant workers in the agricultural sector.

Executive Actions Given the longstanding inability of Congress to enact immigration reform, the Biden administration has continued the trend of relying on executive actions as its primary means of effectuating immigration policy. At the time of this writing, President Biden and others in his administration have taken 94 executive actions on immigration, over half of which reverse policies implemented during the Trump administration.6 In one such executive action, the Biden administration redefined the immigration enforcement priorities for the Department of Homeland Security.7 Under the Trump administration, these priorities were so expansive that they arguably covered every unauthorized migrant in the U.S., meaning that they did not function as priorities in the traditional sense. Under the new regime, immigration enforcement is presumptively limited to unauthorized migrants who pose a threat in the areas of national security, border security, or public safety. The new priority system has reportedly resulted in 60% decrease in arrests by Immigration and Customs Enforcement (ICE) and an 82% decrease in detentions of noncitizens.8 The new enforcement priorities have especially significant implications for jurisdictions like Knox County that maintain a 287(g) agreement with ICE. Only noncitizens who meet the new priorities are subject to prolonged detention and immigration enforcement. This marks a departure from the implementation of the 287(g) agreement under the Trump administration, during which enforcement efforts focused on noncitizens suspected of committing low-level offenses such as driving without a license.9 Another reversal of prior policy is President Biden’s resumption of immigrant visa processing at U.S. embassies and consulates, as well as his termination of the travel ban on nationals from 13 predominantly Muslim and African countries.10 The elimination of the travel ban resulted in potential eligibility for over 40,000 previously denied applicants, as well as many others who withheld applications based on perceived futility. A client of one of the authors, a U.S. citizen from rural East Tennessee, described his reaction to the end of the travel ban as follows: “When we began the immigration process for my Nigerian wife and our five-year-old daughter in 2019, we were confident and optimistic because we met all the requirements. However, we became apprehensive when Trump’s travel ban went into effect, feeling a sense of helplessness and hopelessness. When the travel ban ended, we felt incredible relief and have a reason to hope again, especially now that my wife’s visa interview is being scheduled.”

President Biden has used executive actions to effect numerous other changes in immigration policy, including the elimination of the former administration’s public charge rule requiring extensive financial documentation for many immigration benefits; a halt on the construction of fencing at the southern border; an initiative to reunify families

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June 2021

COVER STORY By: William Gill

Associate Dean for Academic Affairs and Associate Professor of Law, LMU Duncan School of Law

Arléne Amarente

Assistant Professor of Law, LMU Duncan School of Law

separated under the prior administration; and multiple changes to employment-based visas, especially as to the wage regulations pertaining to H-1B visas for noncitizen workers in specialty occupations. Each of these measures will have a significant impact on discrete segments of the immigrant population.

Asylum & Refugee Policy From January of 2019 to February of 2021, more than seventy thousand asylum-seekers who sought protection at the southern border were forced to wait for their asylum proceedings in Mexico under the Migrant Protection Protocols (MPP).11 Prior to MPP, Customs and Border Patrol agents would either detain or release asylum-seekers to family members or sponsors in the United States while they continued to process their cases. But under MPP, asylum-seekers were expelled to Mexico.12 As a result, the number of asylum-seekers living in and around Mexican border towns swelled, forcing many of the expelled migrants to wait in what can only be described as refugee camps. Apart from squalid living conditions, these camps also force migrants to contend with being targeted by cartels for extortion, robbery, rape, and kidnapping.

As a candidate, President Biden sharply criticized MPP. During one of the presidential debates, he offered the following rebuke of his predecessor’s asylum policy: “This is the first president in the history of the United States of America that anybody seeking asylum has to do it in another country…. They’re sitting in squalor on the other side of the river.”13 According to the Trump administration, MPP was necessary to curb the filing of non-meritorious asylum claims and to prevent asylumseekers from vanishing into the interior of the United States while their claims were pending. This is contrary to consistent findings that most asylum-seekers do in fact present themselves in court and that failure to be granted asylum does not necessarily mean that the underlying claim was non-meritorious.14 Currently, the legality of MPP remains under review by the Supreme Court.15 However, because the Biden administration began to wind down MPP immediately after he took office, the Supreme Court granted an abeyance in the case, leaving unanswered questions about statutory interpretation, notice-and-comment, the country’s international nonrefoulment obligations, and the appropriateness of a nationwide injunction.

Notably, only one year into the program, in March of 2020, all pending MPP cases were suspended temporarily, and then indefinitely, in response to the COVID-19 pandemic under the guise of Title 42.16 Under Title 42, hundreds of thousands of immigrants were summarily expelled in the last six months alone, purportedly because they posed a public health risk. As of January of 2021, the Biden administration ended new enrollments, allowing only those who were expelled and have “active” MPP cases to enter the United States. The practical result of ending MPP while leaving the provisions of Title 42 intact is that the border remains closed. To their credit, the Biden administration created a narrow exception to allow unaccompanied children to enter the country despite Title 42.17 The Biden administration has encountered similar turmoil regarding refugee policy. After intense backlash for initially setting the 2021 refugee cap at 15,000—the same level maintained during the Trump era— President Biden increased the cap to 62,5000.18 Remarking on the matter, President Biden conceded the “sad truth” that his administration “will not June 2021

achieve 62,500 admissions this year,” although he pledged to redouble efforts to reach the goal of 125,000 refugee admissions per year that he promised when running for office.

Conclusion President Biden has blamed former President Trump for many of the difficulties with immigration he has faced so far, from the conditions at the border to his halting attempts at revitalizing the nation’s refugee policy. Having dismantled many of the immigration policies of his predecessor, the test during the next phase of his presidency will be whether he can solidify and advance his own immigration agenda, either by getting Congress to act on his legislative proposals or, more likely, through additional executive actions. As the 2022 midterm elections draw nearer and political pressure mounts, President Biden’s ability to meet the challenges of immigration policy will play a key role in defining his presidency.

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H.R. 1177, 117th Cong. (2021).

Office of Bob Menendez, U.S. Senator for New Jersey, Menendez Holds Virtual Briefing on U.S. Citizenship Act of 2021 (Jan. 21, 2021), https://www.menendez. senate.gov/newsroom/press/menendez-holds-virtual-briefing-on-us-citizenshipact-of-2021-and-his-role-as-the-lead-sponsor-in-the-senate.

H.R. 6, 117th Cong. (2021).

DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1901 (2020).

H.R. 1537, 117th Cong. (2021).

See Muzaffar Chishti and Jessica Bolter, Border Challenges Dominate, but Biden’s First 100 Days Mark Notable Under-the-Radar Immigration Accomplishments, Migrant Policy Institute (Apr. 26, 2021), https://www.migrationpolicy.org/article/ biden-100-days-immigration.

Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities, DHS Acting Secretary David Pekoske (Jan. 20, 2021), available at https://www.dhs.gov/sites/default/files/publications/21_0120_ enforcement-memo_signed.pdf.

Chishti and Bolter, supra note 6.

See Meghan Conley and Nathan Hilbert, Knox County’s 287(g) Program and Detention Bed Contract, Compass (Sept. 2020), https://compassknox.com/ wp-content/uploads/2020/09/Report-on-Knox-County-287g-and-Detention-BedContract.pdf.

Proclamation 10141, Ending Discriminatory Bans on Entry to The United States (Jan. 20, 2021), available at https://www.whitehouse.gov/briefing-room/ presidential-actions/2021/01/20/proclamation-ending-discriminatory-bans-onentry-to-the-united-states/.

TRAC Immigration, Details on MPP, https://trac.syr.edu/phptools/immigration/mpp/ (last visited May 10, 2021).

Secretary Kirstjen M. Nielsen Announces Historic Action to Confront Illegal Immigration (Dec. 20, 2018), https://www.dhs.gov/news/2018/12/20/secretarynielsen-announces-historic-action-confront-illegal-immigration.

Caitlin Dickerson, Inside the Refugee Camp on America’s Doorstep, N.Y. Times (Oct. 23, 2020), https://www.nytimes.com/2020/10/23/us/mexico-migrant-campasylum.html.

See Salvador Rizzo, How Many Migrants Show Up for Immigration Court Hearings?, Washington Post (June 26, 2019), https://www.washingtonpost.com/ politics/2019/06/26/how-many-migrants-show-up-immigration-court-hearings/.

Innovation Law Lab v. Wolf, 951 F.3d 1073 (9th Cir. 2020), cert. granted sub nom Wolf v. Innovation Law Lab, 141 S. Ct. 617 (Oct. 19, 2020).

See Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions, U.S. Customs and Border Protection, https://www.cbp.gov/newsroom/ stats/cbp-enforcement-statistics/title-8-and-title-42-statistics (last visited May 10, 2021).

Notice of Temporary Exception from Expulsion of Unaccompanied Noncitizen Children Pending Forthcoming Public Health Determination, Centers for Disease Control and Prevention (Feb. 17, 2021), https://www.federalregister.gov/ documents/2021/02/17/2021-03227/notice-of-temporary-exception-fromexpulsion-of-unaccompanied-noncitizen-children-pending.

Statement by President Joe Biden on Refugee Admissions (May 2, 2021), https:// www.whitehouse.gov/briefing-room/statements-releases/2021/05/03/statementby-president-joe-biden-on-refugee-admissions/.

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OF LOCAL LORE & LAWYERS By: Joe Jarret Attorney, University of Tennessee

LEAVE IT TO BEAVER! WHEN RODENTS GO ROGUE As a teacher of law and public administration, I feel it is my duty to explore with my students the most pressing issues facing our society today. It is not unusual for us to discuss systemic racism, or police deadly use of force, school violence, or social unrest. As such, it was nice to know that somewhere, there’s a place where beavers are the greatest threat to the peace and stability of a local popuIous. I recently learned that, while they might be a beloved Canadian symbol, beavers are being anything but patriotic in Grenville-sur-la-Rouge, Quebec Province. There are roughly 800 beavers and 200 dams in the small western municipality, located about 60 miles east of downtown Ottawa. And, according to Mayor Tom Arnold, those 200 dams are causing major damage. “We’re talking about approximately 35 square kilometers of our municipality, right now, that’s under water because of the beaver,” he said. “The damages are extensive.

They have to be stopped!”1 Beaver Background So, just what are these marauding varmints? Well, according to my old high school biology textbook,2 beavers are large, semiaquatic rodents in the genus Castor (Castor canadensis), native to the temperate Northern Hemisphere. Beavers are America’s largest native species of rodent, and the second-largest living rodents after the capybaras.3 They have stout bodies with large heads, long chisel-like incisors, brown or gray fur, hand-like front feet, webbed back feet and flat, scaly tails. According to the National Park Service, beavers eat the bark, buds, stems, and twigs of trees: aspen, maple, willow, birch, black alder, and black cherry trees. They also like soft plant foods such as grasses, mushrooms, leaves, ferns and the roots of water plants. And, they like to build dams, especially, it seems, in Grenville-sur-la-Rouge.

A Dam Problem Grenville-sur-la-Rouge Mayor Tom Arnold noted that, while the municipality already allocates an annual budget of $10,000 for installing water level control devices, he wants more flexibility from the province to manage the beavers. The problem has been growing over several decades, Arnold said, and fixing washed-out roads because of beaver dams can cost upwards of half a million dollars. Where the rodents really went rogue, is when they chewed through a fiber cable (using the material to build one of their dams), disrupting web and cell phone service for 900 residents. A spokesperson for Quebec’s Ministry of Forests, Wildlife and Parks told Radio-Canada that there is no data on current beaver populations in the province, only that they are abundant.4 And, as you can imagine, one force on the side of the

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beavers is the perennial bureaucracy. Because property owners plagued with beaver dams have to first go through the municipality to apply for licensure to eradicate the busy beavers, time moves slowly. Add to that animal rights groups who side with the beavers, and who are opposed to eradicating the dams and the beavers who build them, further complicates the matter.

Tennessee Law: The Tennessee Legislature has seen fit to make mention of our friend the beaver.

For instance, Tennessee residents and nonresidents alike may stalk, attract, search for, or lie in wait for beavers and other wildlife, provided such persons are unarmed, and they do so solely for the purpose of watching beavers and other wildlife or taking pictures of same.5 Further, military and law enforcement personnel are permitted to use explosives to rid an area of beaver dams and lodges.6 The West Tennessee River Basin Authority is likewise authorized to remove beaver dams or lodges, although the law is unclear whether it may avail itself of the use of explosives to do so.7 And, finally, one need not obtain a license to trap beaver8, or be in possession of a beaver carcass.9 Buttressing Beavers Although I spent most of my time poking fun (good naturedly, I hope), at our neighbor to the North, beavers, it seems, are also on the radar of East Tennesseans. According to Danny Belvins with the Elizabethton Star newspaper, “The East Tennessee beaver is back and they are here to stay this time. It wasn’t too long ago that seeing a beaver or beaver dam was a rare occurrence in this area, but today they populate almost every body of water large enough to support them.”

Interestingly, the problems with beavers in Tennessee (dam building and associated flooding), mimic those frustrating Mayor Tom Arnold.

But Belvins expresses an attitude you’d expect from someone who loves East Tennessee and its flora and fauna: “Beavers play an important role in our East Tennessee ecosystem. Sure, they can cause a few problems, but I’m glad they’re here. After all, they’re just being beavers!”10

Canadian Broadcasting Corporation(CBC),www.CBC.com.

Biology, a High School Primer, Harper & Rowe, 1972.

3

The capybara is a giant rodent native to South America.

4 www.CBC.com.

5

Tenn. Code Ann. § 70-1-101.

6

Tenn. Code Ann. § 68-105-120.

7

Tenn. Code Ann. § 64-1-1103.

8

Tenn. Code Ann. § 70-4-201.

9

Tenn. Code Ann. § 70-2-202.

10 Elizabethton Star, “The East Tennessee Beaver” Belvins, D., 2021.

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June 2021

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

IN-HOUSE COUNSEL NOT LICENSED IN TENNESSEE MUST REGISTER

Tennessee Rule of Professional Conduct 5.5 permits certain categories of lawyers not licensed in Tennessee to practice law in Tennessee. One of those categories is in-house counsel: (d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that: (1) are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission[.]1 However, lawyers wishing to take advantage of this provision must do more – they must comply with Tenn. Sup. Ct. R. 7, section 10.01, which requires registration with the Tennessee Supreme Court. Since the registration requirement was added to Rule 7 effective March 29, 2019, two in-house counsel have been publicly censured for failing to comply with the requirement.2

Registration is a multi-step process, which is described on the Board of Law Examiners’ website here: https://www.tnble.org/?page_id=330.3

The process begins with completion of an online application with the Board of Law Examiners. The application requires that lawyers complete the Character and Fitness Application of the National Conference of Bar Examiners, available here: www.ncbex.org. However, the background investigation is not required. Once the NCBE application is completed, the Board of Law Examiners application can be completed here: synergy.tnble.com.

Next, lawyers must upload the following documents: (1) a copy of the NCBE Character and Fitness application; (2) “certification dated within the last 6 months from the highest court of each state” in which the lawyer is licensed that the lawyer is admitted to practice before the highest court of the state, and indicating the status of the lawyer’s license4; and (3)” [a]n affidavit from an officer, director, or general counsel of the employing entity attesting to the lawyer’s employment by the entity and the capacity in which the lawyer is so employed, and stating that the employment conforms to the requirements of this Rule.”5

Finally, a fee of $600 must be paid to the Board of Law Examiners.

Once the application is submitted, the lawyer will receive an email from the Board of Professional Responsibility delineating further steps that must be taken, including providing current contact information to the Board and paying a prorated annual registration fee. This process must be complete within 30 days.6

Importantly, the application must be submitted within 180 days of the “commencement of employment.”7 The consequences for failing to apply within 180 days are severe: (h) A lawyer under this Rule who fails to register within 180 days of commencement of employment shall be: (1) Permitted to register under this section as provided in paragraph (a), above but will be required to pay a late registration fee . . .

(2) Subject to professional discipline in this jurisdiction; (3) Ineligible for admission pursuant to section 5.01 of this Rule [Admission to Practice Without Examination]; (4) Referred by the Board to the Board of Professional Responsibility; and (5) Referred by the Board to the disciplinary authority of the jurisdiction(s) of licensure.8

A lawyer who moves from one employer to another must notify the Board of Bar Examiners within 30 days9 and must reinstate his or her registration by completing the Application for Reinstatement of Registration available at https://bwp.tnble.org/wp-content/ uploads/2019/09/reinstatement_form_mjp_11.17.pdf. The lawyer must also submit “an affidavit from an officer, director, or general counsel of my employer attesting to my employment, the capacity in which I am employed and stating that the employment conforms to the requirements of Tennessee Supreme Court Rule 7, Sections 10.01.” Finally, a fee of $375 must be paid to the Board. The Application for Reinstatement of Registration must be submitted in hard copy.

Lawyers who are registered are subject to the Tennessee Rules of Professional Conduct and “all other laws and rules governing lawyers admitted to the active practice of law in this State.”10 They must also fulfill all CLE requirements and “pay all annual fees” required of active members of the bar.11

Registered in-house counsel are authorized to provide legal services to the entity client or its organizational affiliates, including entities that control, are controlled by, or are under common control with the employer, and for employees, officers and directors of such entities, but only on matters directly related to the registered lawyer’s work for the entity and only to the extent consistent with [Tennessee Rule of Professional Conduct 1.7].12

They are also “authorized to provide pro bono legal services through an established not-for-profit bar association, pro bono program or legal services program or through such organization(s) specifically authorized in this jurisdiction.”13 However, they may not “appear before a court or any other tribunal” except as otherwise authorized by law,14 nor may they may represent anyone other than the employer and others described above.15 Nor may they hold themselves out as authorized to practice law in Tennessee other than as described above.16

Rule 5.5 is a progressive rule permitting lawyers not licensed in Tennessee to serve as in-house counsel, but to take advantage of this Rule, lawyers must be sure to follow the elaborate registration process within 180 days of beginning employment.

1 Rule 5.5 (a) also permits lawyers licensed in foreign jurisdictions to serve as

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in-house counsel. Foreign lawyers must also register with the Tennessee Supreme Court.

In re Michael Edward Casas, BPR #019806 (Oct. 23, 2020); In re Eric Trygve Olson, BPR #035432 (July 8, 2020).

The description of the registration process is based upon Eileen Burkhalter-Smith, In-House Counsel Registration, Board Notes 25 (Fall 2020).

Tenn. Bd of Bar Examiners, “Registration for In-House Counsel and Foreign Legal Consultants,” https://www.tnble.org/?page_id=330.

Tenn. Sup. Ct. R. 7, section 10.01(a)(4).

Id. section 10.01(d)(1); see Burkhalter-Smith, supra note 3, at 26.

Id. section 10.01(a).

Id. section 10.01(h).

Id. section 10.01(c)(4)(A).

Id. section 10.01(e).

Id. section 10.01(d)(2)-(3).

Id. section 10.01(b)(1).

Id. section 10.01(c).

Id. section 10.01(b)(2)(A).

Id. section 10.01(b)(2)(B).

Id.

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

June 2021

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with respect to “virtual” hearings and conferences. These new technologies are now more commonplace, and likely more expected by clients of every demographic.

Nothing happens in a vacuum. If regulatory sandboxes for legal services succeed, you can expect the model to spread to other states sooner or later.

“The only constant is change,” as the old saying goes. Whether the reason is to address the access to justice gap, the demands of existing clients, or a combination of both forces, you can expect the continued evolution of the legal marketplace. It is far too early to assess whether Utah’s regulatory sandbox for legal services will be a success. But if it does achieve some measure of success, this pilot program may prove to be a watershed moment for our profession.

There’s now little doubt that we are not simply going back to “the way things were” before the pandemic, but rather we are searching for a “new normal.” Could that “new normal” for the legal marketplace include greater participation of non-lawyers? Only time will tell.

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Adam A. Millsap, Utah’s Effort to Expand Regulatory Sandboxes Is Smart Move, Forbes, Feb. 1, 2021, https://www.forbes.com/sites/adammillsap/2021/02/01/ utahs-effort-to-expand-regulatory-sandboxes-is-smart-move (last visited May 10, 2021).

Utah Supreme Court Standing Order No. 15, http://www.utcourts.gov/utc/rulesapproved/wp-content/uploads/sites/4/2020/08/FINAL-Utah-Supreme-CourtStanding-Order-No.-15.pdf) (last visited May 10, 2021).

Fostering Innovation in Legal Services: Testing Legal Regulatory Changes in a Protected Sandbox, Joint Technology Committee of the Conference of State Court Administrators, the National Association for Court Management, and the National Center for State Courts, May 8, 2020, https://www.ncsc.org/__data/assets/pdf_ file/0018/42813/2020-07-27-QR-sandbox_final.pdf (last visited May 10, 2021).

Id. Fostering Innovation in Legal Services: Testing Legal Regulatory Changes in a Protected Sandbox, Joint Technology Committee of the Conference of State Court Administrators, the National Association for Court Management, and the National Center for State Courts, May 8, 2020, https://www.ncsc.org/__data/assets/pdf_ file/0018/42813/2020-07-27-QR-sandbox_final.pdf (last visited May 10, 2021).

Press Release, Utah Supreme Court, To Tackle The Unmet Legal Needs Crisis, Utah Supreme Court Unanimously Endorses A Pilot Program To Assess Changes to the Governance of the Practice of Law, Aug. 13, 2020, https://www.utcourts.gov/utc/ news/2020/08/13/to-tackle-the-unmet-legal-needs-crisis-utah-supreme-courtunanimously-endorses-a-pilot-program-to-assess-changes-to-the-governance-ofthe-practice-of-law/ (last visited May 10, 2021).

Narrowing the Access-to-Justice Gap by Reimagining Regulation: Report and Recommendations from The Utah Work Group on Regulatory Reform, Aug. 2019, at Appendix B, https://www.utahbar.org/wp-content/uploads/2019/08/FINAL-TaskForce-Report.pdf (last visited May 10, 2021).

Id. Narrowing the Access-to-Justice Gap by Reimagining Regulation: Report and Recommendations from The Utah Work Group on Regulatory Reform, Aug. 2019, https://www.utahbar.org/wp-content/uploads/2019/08/FINAL-Task-Force-Report. pdf (last visited May 10, 2021).

Id. at 8.

Id. Id. at 9.

Utah Supreme Court Standing Order No. 15, http://www.utcourts.gov/utc/rulesapproved/wp-content/uploads/sites/4/2020/08/FINAL-Utah-Supreme-CourtStanding-Order-No.-15.pdf (last visited May 10, 2021).

Id. at 3.

2021 Annual Report, Utah Judicial Council (https://www.utcourts.gov/ annualreport/2021-CourtsAnnual.pdf) (last visited May 10, 2021).

Id. at 16.

See Utah Office of Legal Services Innovation, https://utahinnovationoffice.org/ authorized-entities/ (last visited May 10, 2021).

Press Release, Utah Office of Legal Services Innovation, Utah Supreme Court To Extend Regulatory Sandbox to Seven Years, Apr. 30, 2021, https:// utahinnovationoffice.org/2021/04/30/utah-supreme-court-to-extend-regulatorysandbox-to-seven-years/ (last visited May 10, 2021).

Tenn. R. Sup. Ct. 50 (2021) See Tennessee Access to Justice Commission website, https://justiceforalltn.com/ content/about (last visited May 10, 2021).

barrister bullets BARRISTERS COLLECTING TABLETS FOR LEGAL CLINICS On behalf of the Barristers Access to Justice Committee, the KBA is collecting donations of lightly used tablets to expedite the Legal Aid of East Tennessee’s intake process and to assist attorneys in providing legal advice to clients at legal clinics. The tablets will be sanitized and repurposed

by InfoSys Partners prior to their use. This effort was made possible by a grant from the ABA Young Lawyers Division awarded to the Knoxville Barristers. Donations are being collected at the KBA Office until June 16.

MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month. Networking will begin at 5:00 p.m., and committee reports will begin at 5:15 p.m. To attend, register for the meeting at www.knoxbar.org. The meeting on June 9 will be held at The Firefly, the outdoor space at the Knoxville Hilton.

PROFESSIONAL CLOTHING DRIVE DONATES TO KARM, YWCA, AND LMU CAREER CLOSET Thanks to the generous donations of professional clothing by the Knoxville legal community, the Barristers were able to donate several bags of clothing to KARM, YWCA and the LMU DSOL Career Closet.

Thank you to all of the Barrister volunteers who collected clothing from donation locations and helped to sort it!

SUMMER FUN CLE The Barristers CLE Committee is pleased to announce two CLE programs scheduled for this summer. On June 16 from 4-5 pm, Deno Cole of McGehee, Cole, Guindi & Walling, will present “What to Do When You Receive Your First Ethics Complaint” on Zoom. On Monday, July 19, Alex Long, UT College of Law and Luke Ihnen, London Amburn PC, will present “Legal Ethics on the Big (and the Small) Screen” from 5-6 pm at Printshop Beer Company. Click on the dates in the events calendar at www.knoxbar.org for more details.

SUMMER PARTY FIESTA ON CENTRAL PLANNED FOR JULY The Barristers Membership Committee will host a summer party at The Central Collective on Friday, July 30 from 6-9 pm. Check out the promotion on page 22 for more details.

VOLUNTEER BREAKFAST COMMITTEE SEEKS 2021 SPONSORS The Volunteer Breakfast Committee will continue to prepare and deliver breakfast to the Volunteer Ministry Center on the fourth Thursday of the month. We offer our heartfelt thanks to our generous sponsor for June: Egerton, McAfee, Armistead & Davis PC. The Barristers Volunteer Breakfast Committee continues to accept sponsors for breakfasts for September and October 2021. Please contact Matt Knable (knablelaw@ gmail.com) or Mitchell Panter (mpanter@lewisthomason.com) with questions or to sign up.

VOLUNTEER FOR THE VETERANS LEGAL ADVICE CLINIC The Veterans Legal Advice Clinic is a general advice and referral clinic which will serve veterans in the community each month with a wide variety of legal issues. Volunteers are needed between 12:00pm and 2:00pm on the 2nd Wednesday of every month. The next phone-in clinic will be held on June 9. Sign up to help at www.knoxbar.org/volunteer, and contact Access to Justice Committee Co-Chairs Spencer Fair (sfair@londonamburn.com) or Luke Ihnen ( ihnen@londonamburn.com) with questions.

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June 2021

B O AT B U I L D E R S By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.

STORY-TELLER

History remembers James Stephen as a brilliant lawyer and a curmudgeon. He was described as “rough and bad tempered,” and he had to leave town because of a scandal with two women—and the one who was having his baby was his best friend’s fiancé.1 But, in his defense, his early years weren’t great.

His father’s debt sent James to debtor’s prison as a child, and his mother died when he was seventeen.2 He tried to go to law school but had to drop out because he ran out of money.3 It would be another four years before he could finish his legal education and then pass the bar.4 A year later, he was in the West Indies looking for a job.5

However, if James’s early years could be called difficult, Olaudah Equiano’s were horrific. He and his sister were kidnapped as children and placed on a ship bound for the West Indies.6 In his autobiography, he described the journey:

the most eloquent speeches ever delivered in the Commons.”20 Nothing happened. Every resolution was postponed to the next legislative session.21 The enslaved people didn’t need eloquent speeches and resolutions.

They didn’t have time for politicians to debate. They could not wait until the next legislative session. They were dying, and they needed someone to tell their story. They needed Olaudah Equiano to tell his story.

That is exactly what he did. In 1789—the year Wilberforce introduced his 12 resolutions and incidentally the year the United States ratified its Constitution—Olaudah Equiano published his autobiography: The Interesting Narrative of the Life of Olaudah Equiano.22 The forward was a letter to Parliament: My Lords and Gentlemen:

The closeness of the place, and the heat of the climate, added to the number in the ship, which was so crowded that each had scarcely room to turn himself, almost suffocated us. The air soon became unfit for breathing, from a variety of loathsome smells, and brought on a sickness among the slaves, of which many died.

This wretched situation was made worse by the chains. The shrieks of women, and the groaning of the dying, created a scene of horror almost unbelievable.7 Olaudah was one of the millions of enslaved people transported from African to the Caribbean in the late 1700’s. In fact, by the time James was born in 1758, Olaudah had been sold twice and had his name changed to “Gustavas Vassa.”8 That was the year he was brought to England. He was only 12 years old.9 Over the next 6 years, he was sold two more times and spent most of his days at sea serving various ships’ captains in naval campaigns and on merchant ships.10 But, during this time, he also learned to read and write.

Three years later, in 1766, he had saved enough money to buy his freedom for £40. He was 21 years old, and eleven years later—in 1775, he returned to the Caribbean for the sole purpose of helping the hundreds of thousands of enslaved people.11 It wasn’t easy. After all, just about everyone in the Caribbean who looked like Olaudah was enslaved. Olaudah was beaten and strung up with ropes, among other things. Others tried to enslave him, but he evaded them.12 A few years later, curmudgeonly attorney Stephen arrived in the West Indies and set up his law practice.13 Not too long after he arrived, he attended a trial—two enslaved individuals were found guilty of murder and were burned alive even though most believed they were innocent.14 He had seen enough. He got a job as counsel for the Sierra Leone Company and drafted an order to halt the slave trade in Guiana.15 He began writing letters to William Wilberforce, a British politician and member of Parliament, detailing the plight of the enslaved people in the Caribbean.16 For years, Wilberforce had been an outspoken abolitionist.17 In 1780, he entered the House of Commons and later formed the Society for Effecting the Abolition of the Slave Trade, which was joined by none other than attorney James Stephen.18 For a decade, he introduced at least one bill each year calling for the abolition of the slave trade.19 In fact, in 1789 alone, he introduced 12 resolutions against the slave trade and “gave what many newspapers at the time considered one of June 2021

Permit me, with the greatest deference and respect, to lay at your feet the following genuine Narrative; the chief design of which is to excite in your august assemblies a sense of compassion for the miseries which the SlaveTrade has entailed on my unfortunate countrymen. . . . I am sensible I ought to entreat your pardon for addressing to you a work so wholly devoid of literary merit; but, as the production of an unlettered African, who is actuated by the hope of becoming an instrument toward the relief of his suffering countrymen, I trust that such a man, pleading in such a cause, will be acquitted of boldness and presumption.

May the God of heaven inspire your hearts with peculiar benevolence on that important day when the question of abolition is to be discussed, when thousands, in consequence of your Determination, are to look for Happiness or Misery!23 Olaudah’s story went as viral as a story could in 1789. The book went through 10 publications in England and the U.S. It was translated into Dutch, German, and Russian.24 It also breathed new life into the efforts of Wilberforce and James Stephen, who had returned to England and re-married, this time to Wilberforce’s sister.25 Together, the politician and the lawyer were incessant.

Olaudah died in 1797, but his story lived on. It took another 10 years, but in 1807, Parliament passed the Abolition of the Slave Trade Act, effectively abolishing the transatlantic slave trade.26 Stephen drafted the bill; Wilberforce campaigned for it; but Olaudah gave people a reason to vote for it—because boat builders build boats, lawyers speak up, and story tellers tell the best stories—their own.

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The Abolition Project, James Stephen (1758-1832), http://abolition.e2bn.org/ people_29.html, last visited May 9, 2021.

2 Id.; see also John Simkin, James Stephen, Spartacus Educational (Sept. 1997), https://spartacus-educational.com/REstephenJ.htm, last visited May 9, 2021.

3 Spartacus Educational, supra n.2.

4 Id. 5 Id. 6 The Abolition Project, Olaudah Equiano (c. 1745-1797), http://abolition.e2bn.org/ people_25.html, last visited May 9, 2021.

7 Olaudah Equiano, The Interesting Narrative of the Life of Olaudah Equiano or Gustavus Vassa, the African, in Olaudah Equiano, Writer Seaman and Former Slave, available at https://www.gutenberg.org/files/15399/15399-h/15399-h.htm, 8 Olaudah Equiano, supra n.6.

9 Id. 10 Id.

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June 2021

GRAMMAR GRINCH By: Allison Cyrus-Walker LMU Duncan School of Law Juris Doctor Candidate ’22

CLEANED UP: THE CITATION REVOLUTION

If your “unprecedented times” 2020/2021 edition bingo card didn’t have a space for “Justice Thomas joins a citation revolution,” perhaps you should adjust accordingly. Indeed, in the Brownback v. King1 opinion, Supreme Court Justice Clarence Thomas utilized the novel (cleaned up) citation in place of a quoting parenthetical citation.2 While several appellate judges have championed (cleaned up) since its introduction in 2017, Justice Thomas’s utilization of (cleaned up) signaled the Supreme Court’s endorsement of the novel citation implement.3

Appellate lawyer Jack Metzler proposed the (cleaned up) parenthetical signal in 2017 on Twitter, and from there the (cleaned up) movement began.4 Metzler’s innovation reflects one of the dilemmas in modern legal practice: the competing values of adherence to tradition and advancing accessibility. The doctrine of stare decisis is a core tenet of our judicial system.5 Understandably, standards governing legal writing ensuring referenced authorities are accorded proper precedential weight are critical. However, these same rules often lead to impaired clarity and readability.6 The judicial opinion that served as the impetus for Metzler’s proposal was one “in which the court quoted an earlier decision which quoted an earlier-still decision, resulting in a distracting mess of brackets, ellipses, and parenthetical indications that obscured the point that the court intended to make by quoting the earlier authority.”7

Subsequently, Metzler authored an essay on (cleaned up) citations.8 Metzler aptly noted that “[t]he Bluebook has rules for ‘quotations within quotations’…but it does not address how to deal with the successive layers of source indication that result from the rules when a quotation is slightly altered and requoted by court after court. That extra baggage is the problem.”9 Often, legal writers utilize varying strategies to work around the Bluebook’s citation formatting rules at such a juncture, while still getting the intended point across.10 Yet, this time and effort to work around the Bluebook embodies the very heart of the issue. After demonstrating an efficient legal writing maneuver by Chief Justice Roberts dealing with brackets and altered successive quotations,11 Metzler observed: Chief Justice Roberts is an adept legal writer, and his substitution of one bracketed change for another is elegant.

But should the Chief Justice (or any judge) really spend extra time working out how to construct a sentence simply because another judge used brackets a little too generously?

Should clients pay for their lawyers to write around or fiddle with brackets, ellipses, quotation marks, and parentheticals to solve similar problems? And does all that clutter even contain any meaningful information? Often it does not…

Given the ubiquity of quotations, altered quotations, and further altered quotations in legal writing, problems like the one Chief Justice Roberts encountered…needlessly consume judges’ time and effort, lawyers’ time and effort, and clients’ money.12

The proposed (cleaned up) rule would allow quotations from court decisions quoting prior decisions to “be stripped of internal quotation marks, brackets, ellipses, internal citations, and footnote reference numbers; the original sources of quotations within the quotation need not be cited parenthetically; and capitalization may be changed without brackets.”13 Instead, Metzler’s suggested Rule 5.4 would indicate these June 2021

changes “parenthetically with (cleaned up).”14 The illustrations below from a passage quoted in Buchanan v. Maine15 were utilized by Metzler to demonstrate how the proposed rule would work in practice.

Plaintiffs claiming an equal protection violation must first ‘identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently, instances which have the capacity to demonstrate that [plaintiffs] were singled…out for unlawful oppression.’

Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir. 1995) (alteration and omission in original) (emphasis added) (quoting Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989), overruled on other grounds by Educadores Puertorriqueos en Accion v. Hernandez, 367 F.3d 61 (1st Cir. 2004)).16 “Plaintiffs claiming an equal protection violation must first identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently, instances which have the capacity to demonstrate that [plaintiffs] were singled out for unlawful oppression.”

Buchanan v. Maine, 469 F.3d 158, 178 (1st Cir. 2006) (cleaned up).17 The Bluebook rules for quotation parentheticals and omissions18 have been both praised and criticized.19 Judge Richard Posner of the Seventh Circuit has created his own succinct citation format guide and refers to the Bluebook as “560 pages of rubbish.”20 Conversely, some hold sentiments regarding the Bluebook similar to your author’s sentiment regarding the Oxford comma—you can have my Oxford comma when you pry it from my cold, dead, and lifeless hands.21 Citation partisanship aside, (cleaned up) is a legal writing revolution worth noting.

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Brownback v. King, No. 19-546, slip op. at 6 (U.S. Feb. 25, 2021).

Carrie Garrison, Rogue High Court Citation May Spark Legal Writing Changes, LAW 360 (Mar. 11, 2021, 4:03 PM), https://www.law360.com/articles/1362962/roguehigh-court-citation-may-spark-legal-writing-changes.

Id. Id. Jack Metzler, Cleaning Up Quotations. 18 JOURNAL OF APPELLATE PRACTICE AND PROCESS, 143, 143-144 (2017), https://ssrn.com/abstract=2935374.

Id. at 144.

Id. at 143 (editorial note).

Id. (as delineated in Metzler’s essay, (cleaned up) is used when referring to the citation signal; in use, it would not be italicized).

Id. at 146.

Id. at 146-147.

Id. Id. at 147.

Id. at 154.

Id. Buchanan v. Maine, 469 F.3d 158 (1st Cir. 2006).

Jack Metzler, Cleaning Up Quotations. 18 JOURNAL OF APPELLATE PRACTICE AND PROCESS, 143, 155 (2017), https://ssrn.com/abstract=2935374.

Id. at 156.

THE BLUEBOOK, A UNIFORM SYSTEM OF CITATION, 83-86, 107-108 (Columbia Law Review Association et al. eds., 20th ed. 2015).

Carrie Garrison, Rogue High Court Citation May Spark Legal Writing Changes, LAW 360 (Mar. 11, 2021, 4:03 PM), https://www.law360.com/articles/1362962/roguehigh-court-citation-may-spark-legal-writing-changes.

Id. The author’s opinion, true story.

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WELL READ By: Grant Thomas Williamson Realty Trust Group, LLC

GORILLA AND THE BIRD: A MEMOIR OF MADNESS AND A MOTHER’S LOVE Every year at Christmas, I give my mom a book. She is an avid reader, as am I, and so the gift is one that I am always sure will be received graciously, making Christmas gift giving that much less stressful.

But the best part, at least for me, is that I can be assured that once my mom has read the book, we will get to have meaningful conversations about it – what she thought about the author’s tone and style of writing, which characters in the book she enjoyed or related to, and whether she thinks I would like the book.

I almost never give my mom a book that I have read before, instead choosing to look through “Best Of ” lists and try to pick a book that, based on its synopsis, seems like something my mom would enjoy. (Choosing not to read the book beforehand has led to some awkward discussions, most recently about Sally Rooney’s Normal People, a book that I would recommend, just not as a gift to your mom). Out of all the books that I have given to my mom over the years, however, there is one that stands out and that I consistently recommend to anyone who asks for a book to read, especially other attorneys: Gorilla and the Bird: A Memoir of Madness and a Mother’s Love by Zack McDermott.1 Gorilla and the Bird was a book that I gifted my mom while I was still in law school and not long after I had told her how much I had been struggling with anxiety. This book, more so than any other I had given her, allowed us to talk about mental health in a way that we had never been able to before. In an effective, albeit unorthodox, manner, Zack McDermott uses his dry wit and humor to walk the reader through a difficult and unexpected mental breakdown. After graduating from the University of Virginia School of Law, McDermott went to work in New York City as a public defender. At the same time, McDermott began starring in a reality television show about his life – or so he thought.

What McDermott perceived as “The Producer” telling him to engage in increasingly bizarre and manic behaviors for the show was in fact the first signs of McDermott’s bipolar disorder creeping into his everyday life. After being arrested and admitted to Bellevue Hospital, McDermott began writing down and documenting his struggles with bipolar disorder and, in the process, put together a beautiful memoir that sheds light into the systems and institutions that are supposed to help the mentally ill.

The story is fundamentally one about the power of family, particularly McDermott’s mother, whom he calls the “Bird” (McDermott’s mother calls him the “Gorilla,” hence the memoir’s title), to help one another deal with the difficult and unexplainable aspects of life. But McDermott’s story delves into other important areas with equal passion and eloquence. McDermott writes about feeling as though his

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peers were looking down on him when he tried to return to the public defender’s office after his first mental breakdown and how he had deep feelings of anxiety that one mistake on his end could put a client in prison for years. Comparing his work with clients dealing with mental illnesses with his own experiences as a patient in psychiatric hospitals, McDermott is able to provide a unique perspective on how these institutions both help and, unfortunately, fail the very people they are meant to support.

Finally, McDermott is frank and open about the behaviors that negatively exacerbated his bipolar disorders and those behaviors, with the support and encouragement of his mother, that helped provide some level of mental clarity and peace.

The story of McDermott’s relationship with the Bird is enough on its own to make this memoir a must-read. What sets it apart, and what gives it lasting importance, is McDermott’s decision to not only tell his own story, but to tell his own story in a way that discusses the stigma that mental illness carries in the legal field, how the justice system often fails the mentally ill and creates a pipeline of patients to prisoners, and the importance of actively working to maintain one’s mental health.

I am a firm believer that nobody can explain any work of writing better than the person who wrote it, so I will wrap this up by sharing McDermott’s own words about his hopes for the book: I hope we can spark/contribute to a badly needed conversation about mental health in this country. I hope the book can further the dialogue about badly needed criminal justice reform in the U.S. I hope the book can be a voice and advocate for the 1 in 4 black males who are or will be incarcerated in this country at some point in their lives. I hope the book can help some people rethink their views of the necessity of draconian sentences and rehabilitating those that run afoul of the law.

I hope the book can push a few people to understand that gangbangers have mothers too. And that they live and breathe, and bleed and die, just like the rest of us. Most importantly, I hope the book can contribute to a conversation that argues that there is no “rest of us” with respect to the “normal” and the “mentally ill.”2

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If you are interested in purchasing the book, I’d ask that you consider purchasing a copy from your local bookstore. I particularly love Union Ave Books in Knoxville.

Madison Fisher, Psychosis Fuels First Book by Zack McDermott ’08: Young Alum’s Candid Memoir About Mental Illness Released to Strong Early Reviews, University of Virginia College of Law (Oct. 13, 2017), https://www.law.virginia.edu/news/201710/ psychosis-fuels-first-book-zack-mcdermott-08.

June 2021

BARRISTER BITES By: Angelia Morie Nystrom The University of Tennessee

EVERYTHING IS FINE... WHEN YOU HAVE CHEESE AND WINE

Growing up, I lived on cheese: Kraft American singles, Velveeta and the shredded mozzarella that came in a bag from the White Store in Dandridge. As I got older, I discovered an entirely different world of cheeses: feta, bleu, stilton. You name it—I tried it. And, except for a couple of varieties, I loved it all. I didn’t know what to do with it, but I loved it.

During a trip to a fromagerie in Paris in 2009, I learned how to make a “proper” cheese board. The proprietor said that we needed five cheeses (arranged from mildest to most intense): a soft cheese (like brie, camembert, or reblochon), a hard cheese (like Gruyere), a goat cheese, a bleu cheese, and another cheese of your choosing. He also suggested adding a baguette, some grapes, fig jam, almonds, and a glass of wine. To me, it was perfection. And when we came home from France, it was often dinner.

I love a good cheese board, but the pandemic stifled my ability to get a lot of the cheeses that I normally kept on hand. I went almost an entire year without going to a grocery store. While they did a great job, I found that the Instacart shoppers couldn’t always find the cheese varieties that I liked.

At the UT Institute of Agriculture, though, we pride ourselves on Real. Life. Solutions. And I found my own.

During the pandemic, I made a concerted effort to shop local.

Fortunately, UTIA made it easy to indulge my need for both wine and cheese. I am insanely proud of the work that we do at the Institute of Agriculture, and we produce cheese and partner with producers of wine – the key ingredients to make the perfect cheese board for summer entertaining (or just summer eating).

All Vol Cheese has been in production for over five years. It is made by UT Food Science students in partnership with Sweetwater Valley Farm. Through the partnership, students get real-life experiences in dairy operations and cheese production from start to finish. They see first-hand what it takes-- all the way from raising cows, to generating milk, to how milk is turned into cheese, and then packaged and sent to market. Throughout this process they learn about manufacturing, safety, and regulatory issues, all of which better prepare them to become valuable owners and employees in the industry.

They also make some really good cheese. Students produce four varieties of cheese: Checkerboard Mild Cheddar (a mild white cheddar with a silky texture and flavor), Game Day Sharp Cheddar (a crisp, yellow cheddar with a sharp flavor), Smokey’s Smoked Gouda (my personal favorite… a rich gouda with a heavy smoky flavor… great for both eating and cooking), and Torchbearer Jalapeno (also a favorite… hot and spicy).

They have also collaborated with the Department of Industrial & Systems Engineering and Sweetwater Valley Farm to create Power T cheese. This product is hand-cut by students and is a combination of orange and white cheddars. It comes either as orange with a white Power June 2021

T or white with an orange Power T. It is the perfect gift for the Tennessee fan on your shopping list, and it tastes as good as it looks.

These cheeses make the perfect cheese board for entertaining on a hot summer day and are a must for this Fall’s tailgates. I like to pair them with toasted sourdough bread, Benton’s prosciutto, Benton’s smoked hickory bacon (coated with brown sugar and baked in the oven), or Simpson’s Farm summer sausage.

No cheese board is complete without a good wine, and UTIA has again supplied me with a Real. Life. Solution. Earlier this year, we introduced the Vino Volunteer project and UT Wines.

UTIA has partnered with the Tennessee Farm Winegrowers Alliance to release three limited edition wines: Smokey’s Red, Volunteer Orange and White, and UT Tailgate Sangria.

Bottled by Mountain Valley Winery, each blend features Tennessee-grown grapes. These wines were produced to raise awareness of the Tennessee wine industry and to support viticulture research at UTIA. A portion of the proceeds from every bottle of UT Wine purchased goes toward the Peter Howard Endowment for Wine and Ag Tourism, directly supporting the viticulture industry in the State of Tennessee through student internships at Tennessee vineyards, wineries and other agritourism locations.

My personal favorite is the Volunteer Orange and White. It is made from Blount County grown Villard Blanc (a French hybrid grape). It is similar to a pinot grigio or a smooth sauvignon blanc and goes well with most anything. The aromas and flavors are suggestive of green apple and fresh melon, with a simple, clean and refreshing finish. I like to serve it very cold, and it is quite refreshing on a hot afternoon. I like to pair it with Smoky’s Smoked Gouda or the Power T cheese.

I am not necessarily a red wine drinker, but Smokey’s Red is great with the Game Day Sharp Cheddar. Smokey’s Red is made from East Tennessee grown chambourdin and Middle Tennessee grown syrah. It is a robust red with aromas of cherry and plum.

If I’m feeling festive (like on a Taco Tuesday), I love to drink the Tailgate Sangria. It is a lively blend of fruits like strawberry and mango.

Made from red muscadine grapes sourced from Monroe and McMinn Counties, it has a deep garnet color that is rich in flavor with notes of strawberry and tropical fruit, followed by hints of spicy elderberry. It is slightly sweet, with a smooth finish. I like to freeze berries and grapes and add it to it. It is the perfect refreshment on a hot summer day, and it goes great with spicy foods.

If you are interested in supporting UT Ag students and if you enjoy local products, please give All Vol Cheese and UT Wines a try. All Vol Cheese will be back in stock soon and can be purchased at https:// AllVolCheese.Tennessee.edu. UT Wines are available now at www.

UTWines.com. You won’t be disappointed.

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B O A T B U I L D E R S , continued from page 21

Address Changes

11 Id. 12 Id. 13 James Stephen, supra n. 1.

14 Id. 15 Tomb of James Stephen, https://historicengland.org.uk/listing/the-list/listentry/1392347, last visited May 10, 2021.

16 James Stephen, supra n.1; see also The Abolition Project, William Wilberforce (1759-1833), http://abolition.e2bn.org/people_24.html, last visited May 10, 2021.

17 Britannica, William Wilberforce, https://www.britannica.com/biography/WilliamWilberforce, last visited May 10, 2021. John Newton was a former slave trader who later converted to Christianity and became an outspoken opponent of the Transatlantic Slave Trade. He also wrote the hymn Amazing Grace. David Sheward, The Real Story Behind “Amazing Grace” (June 15, 2020), available at https://www. biography.com/news/amazing-grace-story-john-newton.

18 Britannica, supra n. 18.

19 Adam Hochschild, William Wilberforce: the Real Abolitionist?, BBC History (Feb. 17, 2011), http://www.bbc.co.uk/history/british/abolition/william_wilberforce_ article_01.shtml, last visited May 10, 2021.

20 Britannica, supra n.18.

21 Id. 22 Olaudah Equiano, supra n.7.

23 Equiano, supra n.7.

24 Britannica, Olaudah Equiano (Mar. 27, 2021), https://www.britannica.com/ biography/Olaudah-Equiano#ref239392, last visited May 10, 2021.

25 Id. 26 Simkin, supra n.2.

Please note the following changes in your KBA Attorneys’ Directory and other office records: Stephanie B. Daniel BPR #: 023121 Fifth Third Bank 38 Fountain Square Plaza, MD 10909F Cincinnati, OH 45263-0001 Ph: (865) 851-1477 stephanie.daniel@53.com

Steffanie M. Speck BPR #: 023030 Brock Shipe Klenk PLC 265 Brookview Centre Way, Suite 604 Knoxville, TN 37919-4066 Ph: (865) 338-9700 sspeck@bskplc.com

J. Matt Drake BPR #: 030479 Relyant Global, LLC 335 High St. Maryville, TN 37804-5831 Ph: (865) 984-1330 mdrake@relyantglobal.com

Brian J. Wanamaker BPR #: 028983 Hitachi Zosen INOVA U.S.A., LLC 10100 Global Way, Suite 210 Knoxville, TN 37932-1890 Ph: (865) 314-3090 brian.wanamaker@hz-inova.com

Lyndsey M. Phillips BPR #: 037048 Lyndsey M. Phillips, Attorney at Law P.O. Box 51222 Knoxville, TN 37950-1222 Ph: (865) 297-3026 lyndsey@lawyerlyndsey.com

WELCOME NEW MEMBERS

THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS: NEW ATTORNEYS Jordan N. Brinkman Law Offices of A. Philip Lomonaco Carin Brio General Knox Law, P.C. Mitchell T. Harper Harper Law Office Rachel L. Karlin Law Office of Rachel Bonano Terri L. Lacey FOG Enterprise, LLC

NEW LAW STUDENT MEMBERS Allison R. Cyrus-Walker Matthew C. Duggan Zachary J. Redden Jacob P. Refner David S. Zhou

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June 2021

YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris Lincoln Memorial University Duncan School of Law

CAMERAS AND THE CONSTITUTION

Modern video cameras, from phone cameras to miniaturized security cameras to body cams, have significantly affected our society, especially when it comes to law enforcement.

Without the brave and persistent people who captured George Floyd’s final minutes on their phones, the country would not have seen the callousness and brutality that caused his death. Without body cams, we would not have seen the untimely end of Anthony Thompson, Jr. Without the security cameras in the United States Capitol—well, in that case, we’d still have plenty of video of the January 6th Insurrection, courtesy of the QAnon crusaders who recorded their own crimes and then posted them on social media. Thanks, guys.

My favorite video from the Insurrection is the one featuring “Elizabeth from Knoxville,” who indignantly complained of being maced by the police—the nerve of those guys!—and who succinctly explained her treasonous motivation to a reporter: “We’re storming the Capitol!

It’s a revolution!”1 Thanks, Elizabeth. You did Knoxville proud. Apparently, I’m not Elizabeth’s only fan. Parody videos abound. Check out “I Got Maced (Gospel Remix).2

But I digress. Perhaps the most frequent question I get about cameras is whether the government can prohibit the recording of interactions between the police and the public. In general, the answer is no.3 The First Amendment protects our right to gather information, including through photos or videos, as well as our right to disseminate it—for example, by posting a video online. It also protects the right to view such videos, online or elsewhere.

Of course, no constitutional right is absolute. One common-sense limitation on your right to record a public police interaction is that you cannot interfere with police business by, say, getting too close to a police officer while she is making an arrest. There is no hard-and-fast rule about what constitutes interference with the police, but you are probably within your rights if you keep ten feet away from the officer(s) you are filming.4 Ten feet is not within arm’s reach, but it’s still close enough to capture a great deal of detail.

Does this mean that the First Amendment protects your right to photograph and disseminate anything you encounter in public? Well, again, yes—in general. Think about it. The people you encounter in public have no reasonable expectation of privacy when they voluntarily expose themselves to public view.5

There are, of course, exceptions. You really shouldn’t climb a tree outside someone’s house and photograph them in their second-floor bathroom—you’ll likely find yourself on the wrong end of a lawsuit for invasion of privacy. And, while you can record people in public, including celebrities,6 you can’t use their photos for commercial gain without their permission. Think Derek Jeter on a Wheaties box. Doing so would constitute another tort called misappropriation of likeness.

But what about those pesky body cams? Are they constitutional?

Well, yes, they are. Police departments can require their officers to wear them, despite objections from some cops that the cameras violate their

personal privacy. Such objections are understandable, especially when they come from older law enforcement officers who are accustomed to thinking of the inside of a patrol car as their private space. To my knowledge, however, no such challenges have prevailed in court. And, again, there are common-sense exceptions—for example, when a cop uses the bathroom. But, in general, for better and worse, when a cop is on the job, they have no reasonable expectation of privacy.

Many of us deal with similar issues at work.

I know I do. At LMU, all classes are recorded and made available to students online.7 When I started teaching there in 2016, I found it a bit nerve-racking. I’d been teaching for close to twenty years at other law schools, where students needed special permission to record a class. I was concerned that preserving everything for posterity would stifle discussion. I was also concerned that I would say something stupid, and that my gaffe would live on forever. But the students were accustomed to it, and eventually, so was I. (Practice tip: If you teach a recorded CLE class, remove your lapel mic before you take a bathroom break; trust me on this one).

Back to cops: Must they share their body cam videos with the public? Yes, they must, but this is a requirement that is more statutory than constitutional. Tennessee’s Open Records Act8 requires all public records, including police videos, to be provided upon request. But, again, there are exceptions, notably for ongoing investigations, where confidentiality might be essential, and where the due process rights of defendants may be at stake. There is also the privacy of innocent bystanders to consider. That’s why Knox County District Attorney General Charme Allen needed some time to review the videos of the Anthony Thompson shooting before releasing them, and why the faces of most of the students in the videos are obscured.

In sum, modern cameras are a mixed bag, constitutionally speaking.

On the one hand, anything we say or do outside our homes may end up on YouTube—think about that the next time you blow your nose or adjust your underwear in a supposedly empty elevator. On the other hand, cameras have enabled us to hold bad cops accountable while protecting good cops from false accusations. And they’ve kept crusty old law professors on their toes.

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4

5

2 3

6

7

8

Available at: https://www.wbir.com/article/news/twitter-reacts-to-elizabeth-fromknoxville-who-says-she-got-inside-capitol-in-viral-video/51-cda4bc47-66a24559-8caf-0dd872fb1c27.

Available at: https://www.youtube.com/watch?v=Jva583LgSOo. Turner v. Lieutenant Driver, 848 F.3d 678, 690 (5th Cir. 2017).

Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011).

And I do mean “expose.” Search for “naked in public” on YouTube if you don’t believe me. But—please—not while you’re at work.

Regardless of the strongly held opinions of, e.g., Kanye West, Britney Spears, and Sean Penn.

LMU is a private university, but some public universities have similar policies. See, e.g., Michigan State University’s recording policy, available at www.law.msu.edu/ teaching-online/MSU_Classroom_Use_of_Recording_Technologies.pdf.

TN Code § 10-7-503 (2015).

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

June 2021

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BENCH AND BAR IN THE NEWS How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to Marsha Watson at mwatson@knoxbar.org.

NEW SCHEDULE FOR FEES AND COURT COSTS IN KNOX COUNTY COURTS On July 1, 2021 the Knox County Circuit, Chancery, Probate, Juvenile and General Civil Sessions Court Clerk’s offices will be using the schedule of fees included in T.C.A. 8-21-401 for all fees and court costs. Those courts’ fees had previously been controlled by T.C.A. 8-21-409. The Tennessee General Assembly passed a bill deleting that code - effective July 1, 2021 - during the current legislative session.

The change brings the fees charged by all Knox County courts into alignment with the other 94 counties in the State of Tennessee. One significant difference is that under T.C.A. 8-21-401 costs are charged and collected at the time the services are requested, except as otherwise provided in the code. The new fee schedules will be posted at:www. knoxcounty.org/chancery/ and www.knoxcounty.org/circuit/ FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates? Click on Public Resources and select “Career Classifieds” from the dropdown navigation.

The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource.

OFFICE SPACE AVAILABLE: • Office Space for Lease at the Northgate Professional Building, near Downtown Knoxville at 3806-3814 Powers Street, Knoxville, TN 37917. Up to 6 office units available for lease. Office space includes, shared lobby and reception area, library/conference room, restrooms and kitchenette. $400 per office. Free Parking. Email angelaloweatty@gmail.com for inquiries.

•

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

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Downtown Office Space - Downtown attorney has office space available for rent at The First Horizon Building, 800 S. Gay St., 22nd floor. The rent includes phone and internet. Westlaw available.

Email jfanduzz@gmail.com for inquiries.

•

Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 900 sq ft. Office Space includes a reception area, conference room and work area for additional employees. Very Affordable Rate with a two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.

•

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.

CAN YOU DONATE AN HOUR TO HELP A NONPROFIT? The KBA and its participating attorneys recognize that many small to mid-sized nonprofit organization have legal questions, but not the resources to retain legal counsel. Participating attorney agrees to provide up to one hour of pro bono legal assistance to 501(c)(3) tax-exempt organizations with a budget of $1,000,000 or less. Through this partnership, nonprofit staff and boards are assured timely and accurate answers while providing attorneys with a satisfying but not overwhelming way to perform pro bono service. If you are willing to help, contact Marsha Watson at the KBA Office at 522-6522.

NETWORKING OPPORTUNITIES - PROFESSIONALS The mission of the KBA’s Interprofessional Relations Committee is to encourage mutually beneficial interaction among lawyers and other professionals in the community, such as physicians, accountants, financial planners, and the like. In addition, where existing relationships may be somewhat strained, the committee aims to find ways to promote a spirit of cooperation and better understanding. The committee welcomes member participation and ideas for networking and/or events or programs to be held in conjunction with other. Committee Chairs Sherri DeCosta Alley and Paul Wehmeier would like to know if you have any ideas for networking with other professionals. If you would be interested in serving on the committee or have contacts with other organizations, please contact KBA Executive Director Marsha Watson at mwatson@knoxbar.org.

LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons.

It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources.

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June 2021

LONG WINDED By: Jason H. Long London Amburn

ANOTHER THING I DON’T UNDERSTAND I am neither an economist, nor a historian. Justifiably, I thought it appropriate to use this month’s column to provide a brief history of economics. Take this for what it is worth. Roughly 13.8 billion years ago there was a big bang (I like to start at the beginning) expelling subatomic particles out into space. These particles eventually cooled and coalesced into stars and galaxies. Our own planet was formed during that time, approximately 4.5 billion years ago. Half a billion years later, life formed on earth. Through evolution, man first appeared around 6 million years ago. Early humans were hunter-gatherers with no need of an economic system. One simply survived upon what he or she could kill or find in the wilderness. That all changed somewhere around 10,000 BC when humans began to domesticate and raise animals and began farming crops. Humans developed the ability to produce in abundance and began settling into communities that eventually grew into cities.

A system of exchanging goods developed and the first basic form of an economy was born. Trading goats and pigs for wheat and berries was inefficient and I’m sure the exchange rates fluctuated rapidly (think Bitcoin on steroids). Then, about 2600 years ago, Croesus, King of ancient Lydia, developed the first metal coinage and a full-on semi modern economy was born. The Lydians were wiped out by the Assyrians, who were wiped out by the Persians, who were wiped out by the Greeks, who were wiped out by the Romans (of course I am giving only a history of European economy because I am culturally biased.

Equally impressive economies were developing around the same time in Asia, Africa and the Americas). A feudal system/economy developed in Europe which worked well for the top 1 % but not so great for everyone else. Then the plague hit and killed off most of the work force.

According to traditional laws of supply and demand, the peasants who survived should have been able to demand more in the workplace, but the feudal lords were having none of that. Since they were the only ones with weapons and armor, they passed laws restricting the work and movement of peasants which led to rebellions. These rebellions disrupted the social fabric of society across the board and led to massive changes in all areas of life (politics, religion, economics).

The Renaissance came and went, as did the Roman empire. The age of exploration began and the first corporation was founded (the Dutch East India Trading Company). Economics and politics became inextricably linked (if they had not already become so). A first world war was fought, bringing to an end most of the remaining monarchies in the world and introducing communism. In the U.S., we passed through the Gilded Age and exploded onto the world scene through the Industrial Revolution. However, it was our monetary practices (loaning money to both sides) in World War I that made the United States a true global behemoth. The Stock Market crashed and we went into the Great Depression, leading to a Keynesian economic policy of government regulation and restriction on the previously unfettered power of capitalism. Milton Friedman pushed back (along with some help from Ronald Reagan, George Bush and Bill Clinton).

The Internet gave way to a whole new economy as dot com June 2021

millionaires and billionaires were born. Suddenly wealth was not simply in the goods and services that could be performed, but rather existed in a virtual world as well. Although the dot com bubble burst around the turn of the century, people continued to make fortunes in the virtual world of the internet. Technology continued to advance to the point that we now have blockchain and an entire economy is developing online.

From the Big Bang and Croesus to dot com and blockchain, this abbreviated history (likely inaccurate and missing significant moments – sue me. I’m a lawyer who only had 1000 words to work with here) brings me to my question of the day. What the hell is an NFT? Oh, I know what the acronym stands for – Non-fungible token. I am also aware that, at least according to Wikipedia, an NFT is a “unit of data stored on a digital ledger, called a blockchain, that certifies a digital asset to be unique and therefore not interchangeable,” but that definition is greek to me. I have no idea why an entire market has developed around NFTs, nor do I understand why they are selling for several millions of dollars.

Let me back up and give my basic understanding of an NFT and perhaps a reader will educate me (like so many did by reminding me that “dweeb” is a word that starts with “dw” – thanks for pointing out my flaws). NFTs are nothing more than digital art or images stored online which have been designated as original works. For example, if I videoed my kids playing at a band concert, I could theoretically designate that video as an NFT. Someone could then purchase that video and know they owned the original. However, owning an NFT is not a copyright. I don’t believe they could prohibit me from subsequently posting that video to my Facebook page or emailing it to friends to see. As far as I can tell, they could only rest assured that they “owned” the original by virtue of having the NFT. I think it would be the difference between owning the original Mona Lisa, versus owning a print reproduction of the Mona Lisa. One is worth millions of dollars, while the other may wind up in a garish Italian restaurant.

If that is all an NFT is, I am dumbfounded by the money collectors are paying for these digital images: a piece of digital art titled “Everydays – The First 5000 Days” recently sold as an NFT for $69.3 million; the first Tweet sent by Twitter CEO Jack Dorsey sold for $2.9 million; and a video collection of dunks by LeBron James sold for over $200,000.

Again, no one is buying anything tangible here. They are buying online images, generally available on the internet for all to see, and only (as far as I can tell) paying for the right to say they own the official version.

There are so many questions I have in this new economy. How do you designate something as an NFT? Can anything online be an NFT? Who settles disputes if two people claim to have created the NFT? Is there an NFT regulatory board? Is it criminal to claim you have an NFT when you don’t? If someone can explain these intricacies in detail, in terms that a third grader can understand, I’ll gladly buy them lunch. In the meantime, I worry about where our economy is heading and what is undergirding it if NFTs are the new hot commodity.

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

PRO BONO SPOTLIGHT By: Clint Wren Pro Bono Law Clerk Legal Aid of East Tennessee

THE TRAGIC NETWORK OF GOOD I have enjoyed the great fortune of seeing the good work attorneys do for Knoxville and its neighbors. With the secrecy required of the field, I am one of a few to be able to do so. That same secrecy prevents me and many others from exposing the well-kept secret of all you attorneys.

You are good and caring people. If you are anything like me, you will shrug off the compliment. You may say “oh, he’s referring to the guy that worked 70 hours of pro bono this month.” But no, I am talking to you.

Even if you have done nothing more than read this article, you are at least exposing yourself to the idea of pro bono work.

Speaking of exposure to pro bono work, I encourage past and future volunteers to reflect on theirs. During my years at Legal Aid of East Tennessee, I have seen hundreds and hundreds of clients get needed help they otherwise would not receive. The flipside is that it seems there are always hundreds and hundreds of clients with new needs each day. At times, I felt that there was no way to ever make a difference. We place one case with a volunteer, but two more have come in. We find a new volunteer, but three others have retired. The cycle of small victories and defeats is dizzying if you are not grounded in reality.

Generally, my generation does not seem to be a fan of reality. To be exact, it seems we, Millennials, often adopt a nihilistic and hopeless stance. Sure, we helped one adoption. How does that help the soonevicted tenant remain off the streets? Yes, we got a name change done.

How does that help a mourning family navigate probate? I am one person among 8 billion or so people. What difference can I make? This mindset is wrong and fruitless. I would say each volunteer helps four or five clients each year. Whatever that help is, you help those clients set themselves right. That client is now put on a better path towards success.

Not easy or perfect, but better.

whether it is our fault or not. The work remains worthy of our time and attention.

Imagine the neural network of the brain. Neurons connect in intricate and varied ways to form a massive web of potential. What difference can one neuron, connected to a limited set of others, make towards the entire mind? This is the concept I am floundering about trying to convey. Our neighbors, for one reason or another, have a neuron misfire in their lives. Whatever it is, it is stopping them from being all they can be for their families and our community. I am thankful that sometimes my neuron connects to theirs. If I, by matching them with you, can help set them right again, I have expanded my influence.

Now all their neighboring neurons suffer the wonderful effects of your work. A client’s friend realizes they could get help as well, and they reach out. A client’s sibling sees that there is a worthy cause in legal pro bono work and volunteers. The responses to your work are as varied as the clients you see, and they matter.

All this to say, your work matters in a big way. The hour or two you donate to a neighbor could mean a difference in their family for generations. The hour or two you donate could amount to nothing more than some CLE credit. The whole cycle of small wins and losses amount to something that matters. I have the honor of making a difference, and so can you. Do the usually hard, often tragic, and always rewarding work of pro bono service.

Upcoming Clinic Opportunities:

Each client you put on a better path is a client putting their family on a better path. Parents set up better futures for their kids because they are on a better path. Those kids have kids of their own, and they have a now-better path. Say you help five clients with pro bono work, and they set themselves and their families more right. Five families, breaking a cycle of tragedy and misfortune, is an entire community. That community, set more right because you used your skills and talents, impacts neighboring communities.

The cases volunteers take are not always easy. They are not always successful. They are not always joyful or exciting or rigorous mental exercise. All five of those hypothetical families will not likely be set right,

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Veteran’s Phone Clinic:

Wed. June 9 (12:00noon – 2:00pm) Wed. July 7 (12:00noon – 2:00pm)

Virtual Debt Relief Clinic:

Sat. June 12 (9:00am – 12:00noon)

Saturday Bar Phone Advice Clinic: Sat. June 12 (9:00am – 12:00noon)

Sign-up to volunteer through the KBA website

June 2021

TELL ME A STORY By: Carlos A. Yunsan Judicial Law Clerk Tennessee Court of Appeals

E PLURIBUS UNUM: ONE IMMIGRANT’S JOURNEY TO CITIZENSHIP AND THE LEGAL PROFESSION “So, what about learning English in Tennessee?,” the Maryville College alum asked. The journey to call this country home would unfold over the next quarter of a century.

“Where is that?,” I thought to myself. The United States I knew at the time consisted primarily of Miami and New York. Panamanians were familiar with the Calle Ocho festival and, of course, the Yankees.

But Tennessee, let alone Maryville, was not part of our vocabulary. I would later arrive at Maryville College fresh out of high school in January 1994 after first obtaining an F-1 student visa.

It was cold and the roads were covered with snow that morning. A group of students— from Argentina to Yemen and from Iceland to Japan, among others—set out for the Foothills Mall by foot. Locals were still talking about “the blizzard” of the previous winter. The seasons (there are none in Panama, other than wet and less wet!), the mountains, the people—I loved it all. I decided to stay at Maryville to start college that fall. I later realized that living in East Tennessee with friends from, literally, “all over the world” greatly shaped my view about what our nation can be.

An overwhelming, yet inviting, sea of orange. That sums up the field trip to my first game at Neyland. I transferred to UT in the fall of 1995, resulting in my first hands-on experience with immigration law. With assistance from UT’s Center for International Education, my student visa was moved from Maryville College, which allowed me to study at UT and work part-time (up to 20 hours a week on campus if enrolled fulltime) until I completed my bachelor’s degree four years later. But what then? I was not ready to return home, at least not yet.

UT assisted me in obtaining a student visa for graduate school. I received an assistantship for completing my master’s degree and became a double Vol in 2002. The student visa also allowed me to remain in the country legally for an additional year after graduation to work in my field of study (this is known as Optional Practical Training or “OPT”). Armed with a master’s degree in public health, I accepted a position working in community development in rural East Tennessee. I also married my best friend and went on a honeymoon just before my first day at work in May 2002.

Almost immediately, my employer and I began developing my June 2021

application for an H-1B work visa so I could remain the country past the one-year OPT. This type of visa required my employer to apply on my behalf and to certify through the federal Department of Labor that I would be paid the “going rate” for a qualified professional in the same job position. In short, this is not something you can do on your own. I provided the leg work; my employer provided the sponsorship. The thing is, under this visa you can only work for your sponsoring employer and your status lasts only for three years, which can be renewed once for a total of six years. I think you can see a pattern emerging.

The work visa was approved, extending my legal stay in the country until 2006. Soon thereafter, my employer and I successfully worked to extend the work visa for an additional three years to the summer of 2009. My wife and I purchased our first home and our circle of friends and ties to the community had significantly deepened. Life was good.

Nonetheless, we lived with the knowledge that, to remain in the country legally beyond the end of the work visa status in 2009, we had to obtain legal permanent residence (“LPR”) through one of three paths: investing $1 million (hello? public health professional here), marry an American (nix that one, my wife is from India), or find a sponsoring employer. The grace period to leave the country once your visa status expires is short.

The road became bumpy in mid-2007. My employer determined that it could not to sponsor me for LPR and cover the associated application and legal fees (which employers must do themselves). Job applications went out to almost every state with the hope that the journey in the country I had come to love and identify with would not end abruptly after 15 years. We prepared to pack up and leave those who had become our only family in this country and the area where we went to college and graduate school, got married, bought our first car, and bought our first home.

A dear friend and former boss called me in late December 2007.

Her organization was willing to sponsor me for LPR. Although we began the process in haste, we were not able to complete it before my work visa expired. My wife and I were able to remain in the country because the LPR processed had begun, but we could not legally work, which resulted in no income from July 2009 until March 2010 when we became permanent residents after our application was approved. (What a bittersweet time that was—incredibly challenging to want to work and pay your bills and not be able to do so and incredibly humbling to see our family and friends carry us through it all.)

Becoming legal permanent residents changed everything. We resumed work, my wife completed her graduate degree, and I began law school. (I had ample time to study for the LSAT at Barnes & Noble when I was not legally allowed to work.) Most importantly, we no longer had to worry about the next immigration deadline.

After five years as permanent residents—without hesitation and with great anticipation—we applied for naturalization. We took the Oath of Allegiance at the federal courthouse in Chattanooga in July 2016 (just in time to vote for the presidential election that year).

After arriving in Maryville more than 27 years ago, next month I will proudly celebrate five years as an American citizen.

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Prsrt Std US POSTAGE

PAID

P.O. Box 2027 Knoxville, TN 37901

KNOXVILLE, TN PERMIT NO. 3 0 9