DICTA.May 2017

Legal Update: United States Supreme Court Limits EEOC Subpoena Power . . . Page 11 Schooled in Ethics – Criticism of Judges: The Ethical Boundaries . . . Page 21

A Monthly Publication of the Knoxville Bar Association | May 2017

DAMN THE TORPEDOES! PRESIDENT TRUMP GOES FULL SPEED AHEAD WITH HIS IMMIGRATION AGENDA

On April 6 and 7, 2017, 305 folks participated in the 12th Anniversary Law Practice Today Expo. This year’s Expo included local and national speakers, panel discussions, and idea exchanges that provided education and networking to lawyers and law firm staff from large, midsize, and small firms. There were 19 CLE sessions, 36 sponsors, 27 judges, and UT Chancellor, Dr. Beverly Davenport, as our featured speaker for our Judicial Roundtable Luncheon.

Thank you to our sponsors!

Diamond Sponsor The Trust Company Platinum Sponsors LBMC Lexis Nexis Prestige Cleaners/ Prestige Tuxedo Sword & Shield Enterprise Security Gold Sponsor Computer Systems Plus Wells Fargo Advisors Appalachia Business Communications - Mail FP Silver Sponsors Appalachia Business Communications Bradford Health Services Brown Professional Insurers Cornerstone of Recovery Creative Business Systems Eaton Tax & Business Services Focus Treatment Centers Geosyntec Consultants Keystone Solutions LLC Knoxville Chamber Knoxville Executive Suites LogicForce Consulting LLC Mercedes Benz of Knoxville Mike Baker Insurance Consulting NetGain Mobile Diagnostics Pileum Corporation Pinnacle Financial Partner Powell Auction & Realty Pugh CPAs Renewal by Andersen of Knoxville Smith & Hammaker SunTrust Bank Legal Specialty Group TekLinks Teleconnect Services TIS Insurance UrLocalAgent.com

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DICTA

May 2017

In This Issue

Officers of the Knoxville Bar Association

May 2017

Cover Story

President President Elect Amanda M. Busby Keith H. Burroughs

Treasurer Wynne du Mariau Caffey-Knight

Immediate Past President Wayne R. Kramer

Secretary Hanson Tipton

KBA Board of Governors Dwight Aarons E. Michael Brezina III Kathryn Ellis Stephen Ross Johnson Lisa J. Hall

Dana C. Holloway Rachel P. Hurt Mary D. Miller Carrie S. O’Rear Mitchell Panter

M. Samantha Parris Cheryl G. Rice John E. Winters

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Damn the Torpedoes!

President Trump Goes Full Speed Ahead with His Immigration Agenda

5

President’s Message

Overwhelmed? Me Too at Times…It’s Normal. It’s Called Life.

The Public Safety Act of 2016: Points of Litigation

7

9

11

The Knoxville Bar Association Staff

Jonathan Guess Database Administrator

Lacey Dillon Programs Administrator

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

Tracy Chain LRIS Administrator

Adelyn Bryson LRIS Assistant

Volume 44, Issue 5

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

May 2017

Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Executive Editor Executive Editor Editor Heidi A. Barcus Casey S. Carrigan Elizabeth B. Ford Joseph G. Jarret F. Regina Koho David E. Long

Cathy Shuck Chris W. McCarty Melissa B. Carrasco Lee Nutini Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Melissa C. Reinders Ann C. Short

Managing Editor Marsha Watson

KBA Executive Director

DICTA

Practice Tips

Major Changes to Appellate Rules

Legal Update

Healthcare Reform: Where are we now?

21

Tammy Sharpe CLE & Sections Coordinator

Judicial News

United States Supreme Court Limits EEOC Subpoena Power

13

Marsha S. Watson Executive Director

Critical Focus

Management Counsel: Law Practice 101 Schooled in Ethics

Criticism of Judges: The Ethical Boundaries

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10

12

14

15

19

23

24

25

26

Conventional Wisdom Hello My Name Is

Todd Bekaert

Lawyer’s Almanac

Home From Afar

Outside My Office Window

The Judge’s Closing Argument

Evolving Legal Marketplace

ONLINE DISPUTE RESOLUTION: Access to Justice or Access to Convenience (select one)

Thankworthy

Better Together

Well Read

Legal Writing Refresher

Long Winded

Kingsport, A Gathering Place

Life Hacks

Making the Most of Meal-time

Life & Law in Harmony

Finding a Way to Say No

Around the Community

Faith & Justice Volunteers Hear The Call To Serve

George T. Andrews: Judge, Lawyer, Mentor

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4 20 20 22 29 30 31

Of Local Lore and Lawyers

Common Ground

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

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event

EVENT CALENDAR & SECTION NOTICES

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

Alternative Dispute Resolution Section The ADR Section has monthly CLE programs planned through the end of the year. If you have program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Dana Holloway (643-8720).

Bankruptcy Law Section The Bankruptcy Section will meet quarterly. To have your name added to the section list, please contact the KBA office at 522-6522. If you have program topic or speaker suggestions, please contact the Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000).

Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to get involved, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148).

Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Headrick (524-8106) and Sarah Keith (215-2515).

Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. 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. For more information about the section, please contact Section Chairs LeAnn Mynatt (549-7000) or Jimmy Wright (637-3531).

Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040).

Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Ron Mills (215-2050).

Juvenile Court & Child Justice Section Members of the KBA are invited to join the KBA’s Juvenile Court & Child Justice Section, formerly the Unmet Legal Needs of Children Committee. For information about the Section, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440).

May

calendar

n 1 ADR Section CLE n 3 Law Day Luncheon n 3 Open Service Project n 4 Barristers Corn Hole Tournament n 9 Professionalism Committee n 10 Barristers Veterans Legal Advice Clinic n 10 Barristers Access to Justice Committee n 10 Barristers Executive Committee n 11 Judicial Committee n 11 Knoxville Bar Foundation Dinner n 12 Juvenile Court CLE n 13 Spring Memorial Service n 15 Diversity in the Profession Committee n 16 Criminal Justice Section CLE n 17 Board of Governors Meeting n 17 Past Presidents Dinner n 19 Chancery Court Bench Bar CLE n 23 CLE Committee Meeting

June n 8 Lunch & Learn n 8 Judicial Committee n 12 Barristers Access to Justice Committee n 12 Barristers Executive Committee n 13 Professionalism Committee n 14 Senior Section n 14 Barristers Veterans Legal Advice Clinic n 16 Interprofessional Relations Committee n 19 Diversity in the Profession Committee n 19 Board of Governors Meeting n 29 Bankruptcy Section CLE

Senior Section The next Senior Section luncheon will be held at 11:30 a.m. on June 14, 2017 at Calhoun’s on the River. Anne McKinney will be the featured speaker. If you have suggestions for speakers, please contact Chair Wayne Kline at 292-2307.

Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and CLE. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Heather Anderson (934-4000) or Tripp White (712-0963).

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DICTA

Annual Supreme Court Dinner September 6 May 2017

PRESIDENT’S MESSAGE By: Amanda M. Busby Anderson Busby PLLC

OVERWHELMED? ME TOO AT TIMES… IT’S NORMAL. IT’S CALLED LIFE.

The last few weeks have been a little rough for me. I’ve been sick.

One of my four children, Joseph, who had previously received a flu shot still managed to get the flu, leading to several days out of school. How did I know he was sick? A flu test? Yes, eventually, but events leading up to his flu diagnosis had to be a little more dramatic than a simple medical test. A few Sundays ago, I was ushering at my church and Joseph was acolyting. I knew he was not feeling very well, but I had no idea how sick he really was until it happened – Joseph fainted in the center aisle of my church in his acolyte robe while the Deacon was reading the Gospel in front of the entire congregation, thereby bringing the entire church service to an abrupt halt. The clergy who watched this unfold from behind the altar called for the ushers to come help (that included me). As I approached the group encircled around the poor soul who had fallen, I saw that it was my child lying on the floor. Luckily, he did not hurt himself very badly when he fell and he was quickly and well cared for by a team of medical provider parishioners who I thank immensely.

Looking back on it, you have to laugh. You really can’t make this stuff up.

In addition to Joseph and I being sick, my dog of almost thirteen years, Caroline, has been extremely ill. A few weeks ago, we had to take her to the pet ER in the wee hours of the morning, returning home about 1:00 a.m. And, we have had to take her to my vet’s office so many times over the last several weeks that our veterinarian has joked that she needs her own trust fund. I am confident I could have taken a Caribbean sailing excursion vacation instead of my Spring Break staycation I had a few weeks ago for what I have spent on Caroline over the past few months.

And, saddest of all, my son’s pet hedgehog, Moe, who was not even two years old got so sick a few weeks ago that I had to have him put to sleep.

Telling my children about what had happened was hard. I loved Moe dearly. He was adorable (see picture). Moe and I would hang out early on Saturday mornings before anyone else in my house got up; nocturnal pets have some advantages. I will miss him very much.

Absolutely none of these events have anything at all to do with the practice of law. I mention these to highlight the fact that I like most of you have a life outside of the practice of law. A hectic, crazy life. A life that has many aspects that you simply cannot control no matter how much you wish that you could and it is easy to get overwhelmed.

I hear business professionals, including attorneys, talk about their “Work-Life Balance.” I don’t know about you, but I feel myself getting a little angry when I hear the term “Work-Life Balance.” Wikipedia (a most trusted academic source) defines “Work-Life Balance” as “a concept including proper prioritizing between “work” (career and ambition) and “lifestyle” (health, pleasure, leisure, family and spiritual development/ meditation).”

Work-Life Balance in my opinion is a misnomer. What it really should be labeled is “Life.” Work-Life Balance seems to imply that you have some control over most, if not all, of the various things going on around you. You just have to prioritize differently and everything will be just fine. While you might have some control over your legal case load, how many seminars you attend or teach, or how many community events you frequent, there is only so much you can do to control your own health, the health of those around you, and many other unanticipated events. It’s not as simple as allocating part of your 100% to unanticipated events and hoping they do not exceed what you have allocated.

I carry work home with me almost every day. I have been doing that for years. I have had people in the elevator in my building remark, “Looks May 2017

like you have a little light reading tonight.” I do work at home some evenings, but what I usually don’t tell them is that my taking work home is more about what might or might not happen the next morning—sick kid, sick pet, sick parent, storm damage, major appliance failure, you name it. My children are all older now, 15, 16, 17 and 20, and at least the “sick kid” category has gotten a little easier. But, when they were in elementary and middle school in particular, you really never knew what you might wake up to that could require you to completely rearrange your schedule.

If you are currently going through something similar to my last few weeks or something far worse, just know that you are not alone. It may be easy to look at some of your colleagues and assume they have none of these issues facing them, but chances are if “life” has not happened yet, it will. It is almost inevitable. I believe that the more we as attorneys can support each other through the variety of things that life throws at us, the better. It might be the young attorney in your firm that you have compassion for and support when his or her child is sick that ends up being there for you in the future when you or your parent becomes ill. Think about it. Based on the words of Henri Frederic Amiel (18211881) and as often quoted by fellow KBA member and Episcopal priest, Rev. Charles W.B. Fels, at the now bi-annual KBA Memorial Services honoring our recently deceased attorneys: Life is short, And we do not have much time To gladden the hearts of those who Make the journey with us.

So…be swift to love, And make haste to be kind.

It’s easy to get overwhelmed by everything life throws at you, but it’s comforting for me at least to know that I am probably not the only person going through a rough patch. You really may not know what a fellow attorney is dealing with in his or her personal life. So, remember…

Life is short…Make haste to be kind.

DICTA

5

HELLO MY NAME IS

. . .

TODD BEKAERT

By: Katheryn M. Ogle McDonald, Levy & Taylor

There are attorneys with whom we all work who seem to have a gift for their particular niche within the law. Given the opportunity, we are all able to pause and consider the individuals whose character traits seem to give them a certain ease and defined prowess in their chosen field. When I began practicing as a Guardian ad litem, there were several attorneys who seemed to have this skill in working with and advocating for the best interests of minor children. Among this group of lawyers was another young attorney representing the best interests of a teenage boy who had significant behavioral issues. In observing the interaction between this attorney and his client, it became immediately evident that this child had very few people in his corner. It was also evident that this child trusted his attorney more than anyone in his world. After that initial observation, I had several opportunities to work on cases with that attorney, and learned that he had a great ability to relate to both his juvenile clients, as well as adults who he represented.

Working with those who need help the most isn’t something that is new to attorney Todd Bekaert. During his time in law school at Loyola School of Law in New Orleans, Louisiana, he was active in both the Katrina and Immigration Law clinics. The Katrina clinic was formed to assist those displaced by Hurricane Katrina. Through this project, Todd was able to work with low-income clients who had been denied grant benefits and given insufficient amounts to rebuild after the storm. In the Immigration Law clinic, Todd represented non-citizens in a variety of issues and notes that his first court appearances were before the Board of Immigration Appeals, as well as the Department of Homeland Security.

In getting to know Todd outside of his role as a legal advocate, one quickly realizes that the Coffee County native brings a variety of interests to the conversation. Todd is one of four children and was born in Tacoma, Washington. Prior to his retirement, Todd’s father was a veterinarian in the Air Force, which required frequent moves for Todd and his family. When he was in 10th grade, the family moved to Beechgrove, Tennessee, and the Knoxville attorney still considers this his hometown.

Throughout the moves of his childhood, there were some constants for the would-be attorney. One of those constants was Todd’s involvement in hockey. “Hockey is still my favorite sport, even after playing for twenty-eight years,” he notes. “I’m definitely a fan of the Nashville Predators and go to as many games as I can during the season.”

Todd has also played in different men’s recreational hockey leagues during his time in college at both Middle Tennessee State University and then later at the University of Tennessee at Knoxville. Even with his busy work schedule, he still finds time to get out on the ice with some of his longtime friends.

In addition to being a self-described huge fan of sports, Todd also enjoys spending time outdoors. “It’s amazing how a nice walk, or just a step or two outside can help reduce stress.” Spending time with family and traveling are also some of his favorite hobbies. He and his wife enjoy weekend trips to Asheville, Chattanooga, Hot Springs, and other relatively close cities just to spend some time relaxing and recharging.

Todd now has a new buddy to train in the ways of the law, hockey, and spending time outdoors, as he and his wife, Christy, welcomed their son Cruze at the end of March.

As a solo practitioner, it can be difficult to navigate legal waters independently. “Since I don’t work with anyone who is more experienced on a daily basis, it seems as though I encounter ‘firsts’ all the time,” says Todd. “Thankfully, members of the bar with whom I’ve come in contact

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have been more than willing to help me with these issues. Specifically, I appreciate the guidance from Sherif Guindi, who is just a genuinely nice person and a very intelligent attorney.”

Todd also has many talents that he brings to the Knoxville legal community. He’s probably the only KBA member who could advocate for a child in the morning at court and then play a competitive hockey game that same evening. We at DICTA appreciate him sharing his story with us.

DICTA

May 2017

JUDICIAL NEWS By: Kyle Hixson Deputy District Attorney General, Sixth Judicial District

THE PUBLIC SAFETY ACT OF 2016: POINTS OF LITIGATION

A year has passed since Governor Bill Haslam signed the Public Safety Act of 2016 into law on April 27, 2016.1 A product of the Governor’s Task Force on Sentencing and Recidivism, the Act created sweeping changes to public safety laws in Tennessee that took effect on January 1, 2017. For instance, the Act creates a new procedure for issuing orders of protection,2 enhances sentences for repeat drug, domestic, and aggravated burglary offenders,3 and introduces the “validated risk and needs assessment” for all state probation applicants as well as those under the custody or supervision of the Tennessee Department of Correction (“TDOC”).4

Two facets of the Act, however, have created continued litigation since their implementation on January 1: 1) the imposition of graduated sanctions for probationers and parolees under TDOC supervision;5 and 2) the valuation regrading of theft offenses.

Graduated Sanctions

Prior to January 1, 2017, a TDOC probation officer’s decision to ask a judge for a violation of probation warrant was a matter of discretion, subject only to the internal regulations of the Department. The Act now requires TDOC officers to impose a series of graduated sanctions for probation violations before seeking a violation of probation warrant from the Criminal Court. Probation officers may deviate from the sanction grid and request an arrest warrant only when the probationer’s act of violation “constitutes a significant risk to prior victims of the supervised individual or the community at large and cannot be appropriately managed in the community,”6 or when the probationer has committed a new felony or Class A misdemeanor offense.7 Thus, TDOC officers must resort to the graduated sanctions system before requesting a warrant when confronted with a probationer who has committed a “technical” probation violation – e.g., failing a drug screen or failing to report – or has committed a Class B or C misdemeanor.

One trial judge in Tennessee believes the Act violates the rights of the probationer and impermissibly offends the trial court’s inherent authority to supervise probationers. In two recent cases, Judge Donald E. Parish of the Twenty-Fourth Judicial District ruled that the graduated sanctions portion of the Act facially violated constitutional principles of separation of powers, due process, and equal protection.8 As to the separation of powers issue, Judge Parish writes that the Act “allow[s] the removal of an important adjudicative power regarding criminal sentences from the courts and the placement of that power in the executive department.”9

The linchpin of Judge Parish’s conclusion on this point is that the Act repeals all statutes contrary to it, including those in title 40 setting forth the procedure for probation revocations.10 A counterargument is that the Act may be read in harmony with those statutes empowering a trial judge to revoke probation,11 and that the Act simply limits the circumstances under which a probation officer – but not a prosecutor – may seek a revocation warrant.

Judge Parish’s ruling is now before the Tennessee Court of Criminal Appeals.12 Theft Regrading

The Act also raises the threshold for Class E felony property offenses from $500.01 to $1,000.01 and regrades Class D felony offenses as those involving property valued at $2,500 or more but less than $10,000.13 The issue created by this amendment is whether the regrading applies prospectively from January 1, 2017, or whether defendants who committed offenses pre-2017 should be given the benefit of the amendment retrospectively.

The answer to this question lies in the interpretation of Tenn. Code May 2017

Ann. § 39-11-112, which provides that when a penal statute is repealed or amended, the offense, as defined by the statute or act being repealed or amended, committed while the statute or act was in full force and effect shall be prosecuted under the act or statute in effect at the time of the commission of the offense. . . . [I] n the event that subsequent act provides for a lesser penalty, any punishment imposed shall be in accordance with the subsequent act.” (emphasis supplied). Does the Act amend the elements of the offense of theft, thereby invoking the first sentence in section 112, or does it simply provide for a lesser penalty for theft, an interpretation that would require retroactive application under the second sentence in that section?

Local defendants who have succeeded in obtaining retroactive application have relied upon a small set of appellate cases approving retroactive application of the 1992 amendment to the Tennessee Drug Control Act of 1989,14 which reclassified the sale of less than 0.5 gram of cocaine as a Class C felony.15 In other local cases, the State prevailed by arguing that the Act repealed the offenses of theft under the prior classification and enacted new offenses under the amended valuation grading. Simply put, the Act changed the elements of theft, not the penalty for theft.

In State ex rel. Grandstaff v. Gore, the Tennessee Supreme Court analyzed the 1932 rise in the felony threshold from $30 to $60 and provided an inflationary justification against the retroactive application of the regrading, noting that the amendment was probably made “in recognition of the shrinking purchasing value of the dollar, and the actual decrease in the value of goods expressed in dollars and cents.”16 “It is common knowledge,” the Court continued, “that one who steals goods of the value of $60 today secures less in actual value than like goods selling at $30 in years past.”17

Like the issues surrounding graduated sanctions, the retroactivity question on valuation regrading now moves to the appellate level.18 The Court of Criminal Appeals will have the opportunity in the coming months to take the first appellate look at the Public Safety Act of 2016.

2016 Tenn. Pub. Acts ch. 906.

Tenn. Code Ann. §§ 36-3-602(c), -619(h).

3 Id. §§ 39-13-111(c)(3), 40-35-501(u).

4 Id. § 41-1-126.

5 Graduated sanctions are “non-prison accountability measures” such as electronic supervision, drug and alcohol monitoring, increased reporting requirements, community service, and residential treatment. See id. § 40-28-301(4).

6 Id. § 40-28-302(1).

7 Id. § 40-28-305(d)(1).

8 See State v. Victor T. Sims and A.B. Price, Nos. 15664 and 15680, Conclusions of Law and Order (Henry Cir. Ct. Feb. 16, 2017).

9 Id. at 24.

10 See id. at 23 (concluding that the Act repeals all prior statutes implementing probation).

11 Tenn. Code Ann. §§ 40-35-310, -311.

12 See State v. A.B. Price, Jr., No. W2017-00677-CCA-R3-CD; State v. Victor T. Sims, No. W2017-00678-CCA-R3-CD. 13 Tenn. Code Ann. § 39-14-105.

14 State v. Leon Booker, No. 02C01-9304-CC-00060, 1993 WL 539176 (Tenn. Crim.

App. Dec. 30, 1993), no perm. app. filed; State v. Tommy Lee Hill, Jr., No. 02C01-9212CC-00285, 1993 WL 492698 (Tenn. Crim. App. Dec. 1, 1993), no perm. app. filed; State v. Paul Leonard Jordan, No. 02C01-9212-CC-00289, 1993 WL 350160 (Tenn. Crim. App. Sept. 15, 1993), no perm. app. filed.

15 Prior to the 1992 amendment, the sale of any amount of cocaine was a Class B felony.

16 18 Beeler 94, 101 (Tenn. 1945).

17 Id. 18 See State v. Charles Keese, No. E2016-02020-CCA-R3-CD; State v. Michael Eugene Tolle, No. E2017-00571-CCA-R3-CD; State v. Joshua Thidor Cross, No. E2017-00572CCA-R3-CD. 1 2

DICTA

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WALKING THE WALK : LESSONS LEARNED I N T H E E A R LY Y E A R S O F L E G A L P R A C T I C E By: Sarah M. Booher, Esq. The Law Offices of Ogle, Elrod, & Baril

STEPHANIE CRIPPEN

Stephanie Crippen is a Halls native and the oldest of three children who left the familiarity of an established career to pursue the law. “I had no idea what type of law I wanted to practice before I went to school. I was the typical law school cliché; I went thinking that I just wanted to help people.”

A graduate of the University of Tennessee with a Bachelor of Arts in Political Science and a Master of Science in Counseling, this member of Lincoln Memorial University’s Duncan School of Law’s inaugural class of 2013 is no stranger to helping others, but is nonetheless fully aware of the realities of the world. “Not everyone goes to law school because they want to help people, but you have to go into the law for the right reasons. Don’t do it just in the hopes you will be rich one day. If money is your sole motivator, you likely won’t succeed. I think we idolize what we think being a lawyer means and entails. The reality is much less glamorous.”

Crippen found her way to Breeding & Henry through her law school classmate and friend, John, husband of managing partner Shelley Breeding. “He suggested she hire me, and I’ve been here the entire four years since I was licensed. I primarily practice all aspects of family law.”

In fact, she’s also one of a small number of attorneys in the Knoxville area who practice collaborative divorces, and she’s also a board member of the East Tennessee Collaborative Alliance. Additionally, she has done probate and conservatorships, DUIs, landlord-tenant disputes, and is interested in getting into criminal law as well.

“We’re a small firm comprised of seven attorneys. I believe working at a firm with other attorneys to bounce ideas off of and to seek advice from has been so important in helping me find my footing as a new lawyer. Shelley took me under her wing when I became an attorney and has assisted me in any capacity I need. Her experience, as well as her network throughout the legal community, has helped my reputation and assisted me in bringing in more cases. But other attorneys in my firm are also major influences and stabilizing forces for me. They also let me bounce ideas off of them and are great sources of moral support as part of

8

a team mentality.”

The team mentality helped Crippen fill in the gaps of her legal knowledge as she transitioned into practice. “Law school teaches you the law and the theories. It teaches you how to apply the law to a particular fact pattern. For me the most beneficial class was the family law class I took my third year. It laid the foundation for the area of law I now practice. And as much as I hated arguing, law school was also invaluable because it provided me with an opportunity to argue in front of a panel of judges numerous times. It gave me a glimpse into my future life in the courtroom.”

“But law nd as much as I school doesn’t adequately hated arguing, law teach you how school was also to truly practice invaluable because it provided me the law day in and day out with an opportunity to argue in front and it doesn’t of a panel of judges numerous times. teach you about people. I was It gave me a glimpse into my future very excited to life in the courtroom.” take Evidence in law school, but I wish it had been more interactive. My interest in that class was primarily to ensure that I properly applied the evidentiary rules in court proceedings, but that wasn’t necessarily the goal of the class. Both fellow attorneys and clients really surprised me when I left law school. Prior to actually beginning my practice, I was unaware what a collegial group the Knoxville Bar is and how much more enjoyable this camaraderie can make the job. On the other hand, I was shocked by the number of clients that simply would not pay their bill. I found it to be very disheartening when I would be working so hard for people and they wouldn’t even make a good faith payment on their account.”

Like many attorneys, regardless of their years of experience, Crippen sometimes struggles with leaving her work at the office and those nagging feelings of inadequacy. “My greatest challenge as a new attorney has been learning to not take thing so personally. In my area of practice in particular, people are filled with emotions and stress. As much as I try to take on all that I can and do the best for them, sometimes it just isn’t enough. I struggle every day with being good enough.”

“With that said, I think the most common misperception about new attorneys is that they don’t know what they are doing. A lot of seasoned lawyers are set in their ways and want to schedule a hearing for everything rather than try to work things out more efficiently. I find that newer attorneys tend to make up for their inexperience by preparing more than a seasoned lawyer. Preparation, and better preparation, wins cases.”

In short, being the new kid on the block isn’t always a bad thing.

DICTA

...A

May 2017

PRACTICE TIPS By: Michael S. Kelley Kennerly, Montgomery & Finley, P.C.

MAJOR CHANGES TO APPELLATE RULES

On July 1, 2017, the Tennessee Rules of Appellate Procedure will undergo two fundamental changes that affect both civil and criminal appeals. First, the location for initiating an appeal will change. Second, the appellant will be responsible for paying a filing fee with the clerk of the appellate court rather than posting a bond for costs. For any Tennessee lawyer whose practice includes appellate work, it is important to understand and be prepared for these changes.

In addition to the rules of civil procedure and criminal procedure which govern practice in Tennessee trial courts, the Supreme Court has adopted detailed rules of procedure to govern appeals from adverse decisions of trial courts and from intermediate appellate courts. The Tennessee Rules of Appellate Procedure delineate the process for prosecuting and defending appeals, whether the appeal is an appeal as of right or an appeal by permission, in the Court of Appeals, the Court of Criminal Appeals, and the Supreme Court.1 Probably, the two most important rules are Tenn. R. App. P. 3 and Tenn. R. App. P. 4, for these rules describe the basic process for initiating the appeal and the time for filing the notice of appeal. Rule 3 states that an appeal is initiated by the timely filing of a Notice of Appeal, and Rule 4 states that the Notice of Appeal must be filed “within 30 days after the date of entry of the judgment appealed from. . . . ” In civil cases, this thirty-day time limit is jurisdictional.2 In other words, a party who loses a civil case and whose lawyer fails to file either a notice of appeal or a specified post-trial motion3 within 30 days of the entry of judgment will be barred from appealing the decision regardless of merit.4 Therefore, it is of the utmost importance that counsel for an appellant file a timely notice with the proper court clerk.

For many years, the location for filing the Notice of Appeal has been the clerk of the trial court. Tenn. R. App. P. 4(a). However, by order dated December 21, 2016, the Tennessee Supreme Court has amended the appellate rules to provide that, starting on July 1, 2017, the Notice of Appeal will be filed with the clerk of the appellate court. The time period for filing a Notice of Appeal remains the same – 30 days after the date of the entry of the judgment appealed from. However, the location has changed from the office of the trial court clerk to the office of the appellate court clerk.

Since the Court of Appeals and Court of Criminal Appeals are located in downtown Knoxville, this change should not be disruptive to Knoxville lawyers. In fact, to the extent that an appeal is from the decision of a trial court in a county other than Knox County, the amendment will minimize the panic of a last-minute dash to the courthouse. Furthermore, since the appellate courts are supposed to begin accepting electronic filings in 2017, the impact on lawyers whose offices are in outlying counties should be minimal.

For those practitioners who have done appellate work for years, just hearing of this change may cause the anxiety that is all-too-common for trial lawyers: What if I forget and file in the wrong place on the last day?

Not to worry. As a sop to those of us whose clients do not authorize an appeal until the last minute, the Supreme Court has added a “transitional provision” to Tenn. R. App. P. 4. Under this provision, a party whose lawyer erroneously files a Notice of Appeal with a trial court clerk within the mandatory filing period will have an additional twenty days to perfect the appeal by filing in the appropriate appellate court. After July 1, 2017, the clerks of all trial courts in the State are directed to “note the date and time of receipt of the attempted filing and immediately notify the party attempting to file the notice of appeal that the notice must be filed with the appellate court clerk.” Tenn. R. App. P. 4(a). Armed with this notification, the appellant “shall have 20 additional days. . . within which to file the notice of appeal with the appellate court clerk. . . [and] such notice “shall be deemed to have been timely filed.” Id. May 2017

It is worth noting, however, that this transitional period does come to an end. At 11:59 p.m. on June 29, 2018, the transitional period terminates. Thereafter, only timely filings in the Court of Appeals, the Court of Criminal Appeals, or the Supreme Court will be effective.

Tenn. R. App. P. 4(a).

The other fundamental change in the Tennessee Rules of Appellate Procedure involves the handling of costs associated with the appeal. At least since 1848, a party desiring to appeal a civil case has not paid a filing fee but has posted a bond in the trial court for the court costs generated by the appeal.5 Tenn. R. App. P. 6 (a). Typically, this has simply involved the appellant signing the cost bond as principal and his or her lawyer signing the bond as surety.6 That process will be a thing of the past when the changes to the appellate rules become effective on July 1, 2017.

When the changes to the appellate rules take effect on July 1, a party who files an appeal will no longer post a bond for the costs on appeal. Rather, an appellant will have to pay a filing fee with the clerk of the appropriate appellate court. As amended, Tenn. R. App. P. 6 provides: Contemporaneous with the filing of appellant’s notice of appeal or other initiating document, appellant shall (1) pay all applicable litigation taxes and all applicable fees required by the clerk of the appellate court, (2) establish to the satisfaction of the clerk of the appellate court the basis for an exemption or (3) apply for, or establish proof of, indigency in accordance with Rule 18.

Failure to pay the fee or to establish either an exemption or indigency will result in the issuance of an order to show cause why the appeal should not be dismissed. Id.

While these two changes are the most significant amendments to the Tennessee Rules of Appellate Procedure, the Supreme Court’s order includes other changes which will affect appellate practice. Attorneys who handle civil or criminal appeals are encouraged to review the Supreme Court’s order carefully.7 Tenn.R.App.Pro. 1.

Hutcheson v. Barth, 178 S.W.3d 731, 733 (Tenn. Ct. App., 2005), per. app. den., 2005.

In criminal cases, the notice of appeal is not jurisdictional, and “the timely filing of such document may be waived in the interest of justice.” Tenn. R. App. P. 4(a). State v. Scales, 767 S.W.2d 157, 158 (Tenn. 1989). It is up to the appellate court to determine if waiver is “in the interest of justice.” Tenn. R. App. Pro. 4(a). See, e.g., State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007).

3 Pursuant to Tenn. R. App. P. 4(b), the filing of a specified motion in the trial court alters the time for filing a notice of appeal. Binkley v. Medling, 117 S.W.3d 252, 255 (Tenn.

2003). In particular, a party that files a motion under Tenn. R. Civ. Pro. 50.02, 52.02, 59.07 or 59.04 has 30 days from the granting or denying of the motion to file the Notice of Appeal. Id. Similarly, Tenn. R. App. P. 4(c) tolls the time for filing a Notice of Appeal in a criminal case where a party files a specified motion in the trial court. As in civil cases, the time to file a Notice of Appeal is 30 days from the granting or denying of the motion.

4 Of course, there are certain provisions in the Rules of Civil Procedure which provide a mechanism to relieve a party from a final judgment or order in extraordinary circumstances. See Tenn. R. Civ. Pro. 60.

5 Davis for the Use of Trotter v. Hansard, 28 Tenn. 173 (1848) (dismissing appeal for failure of appellant to file bond for costs on appeal).

6 Coleman v. Humane Society of Memphis, 2014 WL 587010 at * 31, fn 24 (Tenn. Ct. App. 2014). Under Tenn. R. App. P. 6, the appellate court clerk has the authority to require proof that the surety has sufficient assets in the State of Tennessee to pay the costs of the appeal. In fact, the clerk may reject the proposed bond upon a finding that the surety’s assets are insufficient.

7 A complete copy of the Supreme Court’s Order of December 21, 2016, may be found at: https://www.tncourts.gov/sites/default/files/tn_rules_of_appellate_procedure_-_ amendment_order_12-21-2016.pdf.

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LAWYER’S ALMANAC

Knoxville Bar Association Annual Memorial Service

By: Chris McCarty Lewis, Thomason, King, Krieg & Waldrop, P.C.

Friday, May 12, 2017 3:00 p.m.

Tennessee Supreme Court Courtroom 505 Main Street, 2nd Floor

HOME FROM AFAR

Having an Irish last name sometimes empowers me to be offended over Irish issues. Truth be told, I know about as much about Ireland as I do about Mongolia. But even an Irish poser like me has every right to be offended by Tom Cruise’s horrible Irish accent in Far and Away.

It’s as if he prepared for that role by watching Lucky Charms commercials on repeat. Cruise’s accent is somehow even less believable than all five foot of him dominating bareknuckle boxing matches.

Bad accents and featherweight boxing aside, however, Far and Away is a great reminder of a crucial law in the shaping of American history.

The Homestead Act, signed into Law by President Lincoln in May 1862, opened up settlement of the western United States. Anyone, including freed slaves and new immigrants, could put in a claim for federal land.

As the Civil War neared a close, approximately 15,000 Homestead Act claims had been processed. Claims would eventually reach 1.6 million. The final Homestead Act claim for land in Alaska was actually approved in 1988.

So, if you happen to catch Far and Away on TBS one night, ignore the acting and appreciate the history. I know a lot of your ancestors did.

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We gather, not for the purpose of grieving, but rather to celebrate the careers of, and to honor, applaud, and express our gratitude to, those members of the Knoxville Bar who passed away in the last year.

In Memoriam:

W. Mitchell Cramer Denise Faili Joey R. Feagins B. Joe Guess Mary Jo Hoover E. H. Rayson David Edwards Smith Otis H. Stephens Jr. Hon. Robert Thomas Stinnett John Albert Walker Jr. Robert F. Worthington, Jr. Joining KBA President Amanda Busby in the reflection and celebration of the lives of these individuals will be Rev. Charles Fels and Tennessee Supreme Court Justice Sharon Lee.

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May 2017

L E G A L U P DAT E By: Tricia Roelofs Managing Attorney, Tennessee Valley Authority, Office of the General Counsel1

UNITED STATES SUPREME COURT LIMITS EEOC SUBPOENA POWER

On April 3, 2017, the Supreme Court decided McLane Co. v. Equal Employment Opportunity Commission.2 The decision affirmed what all but one court of appeals had already determined: appellate courts should review district court decisions to quash or enforce Equal Employment Opportunity Commission (EEOC) subpoenas for abuse of discretion, not based on a de novo standard of review.

The EEOC’s Subpoena Power

By way of background, Congress tasks the EEOC with “[p]rimary responsibility for enforcing Title VII.”3 “The filing of a specific sworn charge of discrimination” triggers the EEOC’s enforcement responsibilities, including the duty to investigate the charge.4 In conducting its investigation, the EEOC is permitted to seek evidence that “relates to unlawful employment practices covered [by Title VII]” and that is “relevant to the charge under investigation.”5 One of the investigatory tools available to the EEOC is the power to “issue a subpoena and to seek an order enforcing [the subpoena].”6 If an employer refuses to comply with a subpoena, the EEOC may petition a district court for relief.7 “If the charge is proper and the material requested relevant, the district court should enforce the subpoena unless the employer establishes that the subpoena is ‘too indefinite,’ has been issued for an ‘illegitimate purpose’ or is unduly burdensome.”8 Background

McLane arose from a Title VII gender discrimination suit filed by a woman named Damiana Ochoa. McLane fired Ochoa from her “cigarette selector” job after she thrice failed a physical strength test following her return from maternity leave.9 Ochoa’s EEOC charge followed. McLane largely cooperated in the EEOC’s investigation, providing it with basic information about the strength test, as well as a list of the genders, roles, and evaluation scores of anonymous employees who had taken the same evaluation that led to Ochoa’s termination.10 But the EEOC asked for more, eventually subpoenaing McLane for a nationwide list of “the names, Social Security numbers, last known addresses, and telephone numbers” of employees who had been asked to take the strength test.11 McLane refused to comply with this broad request on relevance grounds, and the EEOC brought suit in the United States District Court for the District of Arizona to enforce its subpoena.12 The District Court’s Denial of the EEOC’s Subpoena and Ninth Circuit Reversal

The district court largely sided with McLane, finding that the majority of the information sought was not relevant to Ochoa’s charge.13 The district court even went so far as to suggest that the EEOC had served the broad subpoena with the goal of “trolling for possible complainants.”14 The district court mostly denied enforcement of the EEOC subpoena, only ordering that McLane produce six general categories of information about employees or applicants in Ochoa’s division who were requested to take the strength test: sex, test score, date of test, position, required score, and whether any adverse actions were taken against the employee or applicant within 90 days of taking the test.15

On appeal, the Ninth Circuit reviewed the district court’s decision de novo, and concluded that the it had erred in finding the personal information sought in the EEOC’s subpoena irrelevant.16 The Supreme Court granted certiorari to consider whether the decision to enforce an EEOC subpoena should be decided de novo – as the Ninth Circuit did in McLane’s case – or reviewed for abuse of discretion, consistent with the May 2017

precedent set in all other courts of appeals that had considered the issue.

The Supreme Court Determines the Standard of Review

The Supreme Court looked to two factors to decide this question: “the history of appellate practice” and judicial competency. As for the “history of appellate practice,” the Court observed many courts of appeals had long applied an abuse-of-discretion standard of review to EEOC subpoenas. It further noted that, at the time Congress incorporated the National Labor Relations Act subpoena power into Title VII, several courts of appeals had already decided that decisions about enforcement of NLRB subpoenas were reviewed for abuse of discretion.17

With regard to judicial competency, the Court asked whether “as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.”18 The Court reasoned that district courts are the best positioned to make the “fact-intensive, close calls” necessary to evaluate the relevancy of evidence sought in a subpoena. That is because district courts have considerable experience in weighing evidence in other contexts, such as in making relevancy determinations under the Federal Rules of Evidence. The Court noted that its conclusion was bolstered by the notion that deferential review appropriately “streamline[s] the litigation process by freeing appellate courts from the duty of reweighing evidence and reconsidering facts already weighed and considered by the district court.”19

Based on these considerations, the Court held that the district court’s decision “should be reviewed for abuse of discretion, not de novo.”20 The Court went on to reject that United States’ argument that the district court’s decision should be affirmed because it had clearly abused its discretion. Instead, it vacated the Ninth Circuit’s decision and remanded the case to be decided under the appropriate discretionary standard of review.21 Impact of Decision Although McLane was a loss for the EEOC, its impact is likely to play out narrowly in courts of appeals. After all, in rejecting the Ninth Circuit standard of review, the Court recognized the EEOC’s “broad authority to seek and obtain evidence” noting that relevance in the context of EEOC subpoenas must be understood “generously” to give the EEOC “access to virtually any material that might cast light on the allegations against the employer.”22 1 Any opinions expressed in this article are those of the author and are not attributable to the Tennessee Valley Authority.

2 -- S. Ct. --, 2017 WL 1199454 (U.S. Sup. Ct. Apr. 3, 2017).

3 EEOC v. Shell Oil Co., 466 U.S. 54, 61-62 (1984).

4 Univ. of Pa. v. EEOC, 493 U.S. 182, 90 (1990); 42 U.S.C. § 2000e-5(a)-(b), (e).

5 42 U.S.C. § 2000e-8(a).

6 University of Pa. v. EEOC, 493 U.S. 182, 191 (1990); 42 U.S.C. § 2000e-9.

7 29 U.S.C. § 161(2).

8 EEOC v. Shell Oil Co., 466 U.S. 54, 72 n. 26 (1984).

9 McLane Co. v. EEOC, -- S. Ct. --, 2017 WL 1199454 at *4 (U.S. Sup. Ct. Apr. 3, 2017).

10 Id. 11 Id. 12 Id. 13 EEOC v. McLane Co., 2012 WL 1132758 at *7 (D. Ariz. Apr. 4, 2012).

14 Id. at *5.

15 Id. at *5-6.

16 EEOC v. McLane Co., Inc., 804 F.3d 1051 (2015).

17 McLane Co. v. EEOC, -- S. Ct. --, 2017 WL 1199454 at *5-6 (U.S. Sup. Ct. Apr. 3, 2017).

18 Id. at *7.

19 Id. 20 Id. at *9.

21 Id. 22 Id. at *8.

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

Jr.

THE JUDGE’S CLOSING ARGUMENT

The line crept from the pulpit back along the west wall of the sanctuary to the front of the church. The line of brave souls spilled out of the front doors and down the sidewalk. They were there to pay their respect. Funerals are a part of the fabric of our life. Death is a given.

However, some funerals, some deaths, leave an indelible mark on the memory. Some rest heavy on the heart and rip directly into the deepest part of us, simply because of the circumstances.

I was the last stop for those in line, standing up front in the same spot I stood eight years earlier when the two of us were transformed into husband and wife. As those in line inched toward me I stood beside her casket as people who loved her, loved us, loved our families made their way to her parents, to my parents and siblings, and eventually to me, the broken guy. Many searched for words. Others had none. A few wanted to be profound, to whisper words that might soothe or fall on the ears of the grieved and be held in the days to come. There were tears - tears for a mother, a wife who was taken too young. Then there were tears for motherless children and a broken family, and for me. Many had been there eight years earlier. Many were member of the Knoxville Bar Association.

I don’t remember much of the day the line formed. I can tell you everything about the day she left this world, but I can’t tell you what the preacher said or even much of what I said as I later stood before those gathered and arrogantly attempted to sum up her beautiful life. How can you adequately summarize something that is not supposed to be over?

What I do remember is the following - I remember feeling lost in a fog without guidance or the promise of light. I remember my children were at home. I decided not to bring them. They were too tender. Truth be told, we all were. And, I remember one man. He was a man that was far from my best friend. My dearest friends traveled from all corners of the country, but I don’t remember talking to them. I must have hugged or shook hands with hundreds of people, but I don’t remember anyone in particular. I remember him. He was…a lawyer. He wasn’t in my firm or even someone I practiced against with any regularity. I had a few cases against him over the years. He waited in line. I don’t think he even knew Cheryl. When he reached me I remember being amazed that he’d come, that he’d waited in line. When the service started so many were still in line and didn’t get a chance to speak to me or my withered family. I’d say a great many of them were thankful they didn’t make it to the front.

What do you say? He could’ve taken a seat like so many. You cannot imagine the people that know you and care about you and your family until tragedy takes up residence in your life. It is a beautiful consolation, but one you are incapable of appreciating until much later. Suddenly he was at my side. “Robbie, I’m so sorry,” he said. “Can I pray with you?” he asked. He really insisted rather than asked. He was determined. I said, “Absolutely,” incapable of denying him even if I wanted to. With one hand on my shoulder and the other grasping my hand, he stopped traffic.

He held up the line.

Some funerals become social events where smiles are not discouraged, where the occasional laugh can be heard. Those are the funerals of people who’ve lived long and fulfilling lives and the atmosphere can be more like a party. This wasn’t that kind of funeral.

However, the natural noise in the chamber created by the gathering

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of so many people halted. Quiet engulfed us. The man began to pray, channeling what I thought was a fantastic closing argument for the power of a loving God and a faith we shared. His prayer was a testament to why we should all be thankful for family, friends and in particular, Cheryl White Pryor, age 31, who’d gone to her glory under great protest from the living. It was more than a prayer. It was an argument for life, its beauty and a plea, to all that heard it, for a merciful God to grant understanding and peace. I’ll always remember him and the overwhelming power of his prayer.

I wrote him a letter several years later when he was named Magistrate Judge of the Federal Court. I concluded the congratulatory letter: “On a personal note, it has always been my belief that the hallmark of judicial integrity requires persons of high moral character occupy positions like the one you now hold. From that standpoint, I can think of no other person as qualified as you. As I told you at the annual Bar meeting, I will never forget sharing a prayer with you at my beloved Cheryl’s funeral. Just as it has been an honor to practice law against you, it will be an honor to appear before you.”

And, it has been an honor. Whenever his name is mentioned, I remember. When called before him, I remember. When I heard of his retirement, I remembered. When he has had the audacity to rule against me, I thanked him and, then, remembered. Judge Cliff Shirley was an honorable practicing trial attorney. His tenure on the bench has been one with distinction. He teaches with me at the law school where he is beloved by staff and students alike. However, on October 25, 2000, Cliff Shirley represented my chosen profession, my bar association, and was without question or doubt an arbiter of my faith as he found the words to share with me in my darkest moment and, as a result, bring a good bit of light into the terrible fog. It was an amazing gesture by a good and honorable man. I will always remember. Years later, on the steps of the law school we serve, he and I discussed the practice of advocacy and the art of the trial. It surprised me a bit when he said, “I’ll tell you that since I’ve been on the bench I’ve come to believe Closing Argument is overrated and, in most cases, unnecessary.” I disagreed.

This is my closing argument for a man who is bringing his professional career to an end. The evidence is in, and I rest my case. I wish you a happy retirement my friend.

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May 2017

MANAGEMENT COUNSEL: LAW OFFICE 101 By: Ashley Trotto Kennerly, Montgomery & Finley, P.C.

HEALTHCARE REFORM: WHERE ARE WE NOW?

On March 6, 2017, House Republicans announced their plan to repeal the Affordable Care Act (“ACA”) and replace it with the American Health Care Act of 2017 (“AHCA”).1 Less than three weeks later, on March 24, House Speaker Paul Ryan pulled the bill from the floor mere moments before a vote took place. I was watching live (employee benefits nerd speaking) and it was a scene straight out of House of Cards, complete with booing, hissing and a flurry of activity right before the live feed cut to black.

When the dust settled, the ACA was still standing as the law of the land. In the words of House Speaker Paul Ryan, “We’re gonna be living with Obamacare for the foreseeable future.”2

But employers shouldn’t get comfortable. There were several provisions of the AHCA that would have significantly affected employers and their benefit arrangements. Because those provisions did not seem to be major points of contention with either side of the aisle, they are likely to reappear, in some form or other, in any revised version of the bill. I’ll briefly discuss a few of those provisions below.

Before we dig in, I should clarify that the AHCA was introduced through the 2017 budget reconciliation process. Accordingly, it could not repeal or modify any provisions of the ACA that do not directly affect government revenue, such as: the elimination of pre-existing condition exclusions, coverage of adult dependent children up to age 26, capping of out-of-pocket expenses, coverage of preventative care services with no cost sharing, or the elimination of annual and lifetime limits on essential health benefits.3

“Repeal” of the Employer Mandate: The employer mandate requires employers with 50 or more full-time employees to offer those employees ACA compliant health coverage or face a penalty.4 Because of the reconciliation rules, the AHCA could not repeal the employer mandate in total. However, it was able to accomplish the next best thing – it reduced all employer mandate penalties to zero, retroactive to January 1, 2016, effectively invalidating the provision.5 The AHCA did not, however, come up with a similar work-around for repealing the annual employer reporting requirements, arguably the most cumbersome aspect of the employer mandate.

Delay of the Cadillac Tax: The AHCA would further delay, but would not repeal, the Cadillac Tax – the 40% excise tax levied on the value of group health plans above certain dollar thresholds – from 2020 to 2026.6

Unlimited Flexible Spending Accounts: The ACA currently limits the amount an employer or employee may contribute to a Flexible Spending Account (“FSA”) to $2,500, indexed for cost-of-living adjustments. The AHCA would repeal that limit, permitting employers and employees to contribute unlimited, tax-free amounts, to their FSA to pay for out-ofpocket health care costs.7

Expansion of Health Savings Accounts: A Health Savings Account (“HSA”) is a tax-advantaged medical savings account only available to taxpayers enrolled in a high-deductible health plan (“HDHP”). The AHCA would nearly double the maximum contribution to HSAs to match the out-of-pocket limits under HDHPs.8 In 2017, for example, HSA maximums would have increased from $3,400 to $6,550 for single individuals and from $6,750 to $13,100 for families.9 Additionally, the AHCA would reduce the additional tax assessed on distributions from HSAs that are not used to pay for qualified medical expenses from 20% to 10% and would permit both spouses who are eligible for HSA catchup contributions to make such contributions to the same HSA account.10

Although the AHCA was withdrawn, the changes discussed above may be reintroduced, as written or in some modified form, at any time.

If enacted, any one of these provisions, or others, may significantly affect the day-to-day administration of an employer’s benefits and the communication of those benefits to its workforce.

Stay tuned. Things will change.

American Health Care Act of 2017, H.R. 1628, 115th Cong. (2017).

Press conference held by Paul Ryan, Speaker of the House (March 24, 2017).

3 Secretary of the Department of Health and Human Services, Tom Price, indicated at a March 7, 2017, press conference on the AHCA, that the Trump administration expects to introduce additional legislation to address non-budget related provisions of the ACA. 4 26 U.S.C.A. § 4980H (West).

5 H.R. 1628, Title II, Subtitle A, Section 206.

6 H.R. 1628, Title II, Subtitle A, Section 207, as amended by Amendment number 5, Manager’s Amendment (Policy Changes), offered by the Hon. Greg Walden (OR) and Kevin Brady (TX).

7 H.R. 1628, Title II, Subtitle A, Section 210, as amended by Amendment number 5, Manager’s Amendment (Policy Changes), offered by the Hon. Greg Walden (OR) and Kevin Brady (TX).

8 H.R. 1628, Title II, Subtitle A, Section 216, as amended by Amendment number 5, Manager’s Amendment (Policy Changes), offered by the Hon. Greg Walden (OR) and Kevin Brady (TX).

9 IRS Rev. Proc. 2016-28.

10 H.R. 1628, Title II, Subtitle A, Section 217.

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About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Cathy Shuck at 541-8835.

May 2017

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E V O LV I N G L E G A L M A R K E T P L A C E By: Lisa J. Hall Hodges, Doughty & Carson

ONLINE DISPUTE RESOLUTION: ACCESS TO JUSTICE OR ACCESS TO CONVENIENCE (SELECT ONE)

Once upon a time, Alternative Dispute Resolution (“ADR”) was a groundbreaking development in the practice of law, often allowing claimants and/or litigants to resolve their disputes at a lower cost, in a quicker amount of time, with more control over the outcome. More recently, technological advances and the common desire to economically resolve disputes with more efficiency have prompted the development of additional alternatives to ADR.

Some mediators have begun to promote online mediation, meaning that they personally conduct the mediation, but the parties participate remotely, by email, telephone, or videoconferencing. According to Noam Ebner, the range of disputes being mediated online includes not only high volume small claims matters but also workplace and family conflicts.

Online Dispute Resolution: Theory and Practice (Eleven International Publishing, 2012). Mediators are sometimes able to use a more direct, problem-solving approach in online mediations, and everyone has an equal opportunity to be heard. Communicating by email is convenient, as parties can respond when they have time, and mediators have time to carefully consider their statements and approach. Of course, the drawback is that participants do not have the same opportunity to observe nonverbal communication, including body language and facial expression. It can be more difficult for a mediator to build rapport with the parties through email. Online mediation also bears the risk of litigants expressing more hostility than they would otherwise in person, and as they can feel less engaged if they are not physically present, they can be more likely to abandon the mediation if they are frustrated.

Perhaps more conducive to solving the well-known problem of “access to justice” for people of limited means is the still-developing concept of Online Dispute Resolution (“ODR”), which includes online mediation as described above but also consists of software, automated systems and a process that does not necessarily require human oversight, at least in the initial stages. In addition to addressing the concerns of the lower-income population, ODR can offer a more convenient approach to resolving disputes. Professor Robert Condlin, University of Maryland Francis King Carey School of Law, has written a research paper entitled “Online Dispute Resolution: Stinky, Repugnant, or Drab,” U. of Maryland Legal Studies Research Paper No. 2016-40, in which he describes the relatively brief history of ODR, along with current ODR systems, pointing out the potential shortcomings in automated justice.

In Technology and the Future of Dispute Resolution, DISPUTE RESOL. MAG., Winter 2015, Colin Rule notes that “[p]eople now believe that they should be able to report a problem at any time of day and get quick, round-the-clock support to resolve it transparently and effectively.” The concept of ODR appeals to those who want and expect a quick and convenient means to resolve their issues.

However, participants in ODR may have to sacrifice their concept of justice. Condlin notes that parties must describe their claims in “fixed, pre-defined, component parts that may or may not capture all of the dimensions of the claims.” Further, ODR programs can limit the ability to argue the substantive merits of the claims. Condlin states that if not based on normative standards, ODR is just “another form of bureaucratic processing, the resolution of disagreements according to a set of tacit, often biased, intra-organizational, administrative norms (e.g., seller is always correct), that are defined by repeat players who ‘capture’ the system and use it for their private ends.”

In his recitation of the history of ODR, Condlin first describes blind-bidding systems, including Smartsettle and Cybersettle. Parties submit offers for settlement to a central computer. If the offers are

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within a proximity range set ahead of time by the software or the parties, the dispute is resolved by splitting the difference between the offers.

Square Trade offered a platform to resolve disputes on eBay, along with other entities. Claims were filed by choosing from a set of pulldown menus, filling in open-text boses, and ranking solutions from a set of choices offered. Square Trade would email the responses to the other party and request that he fill in the same boxes and make the same selections, in which case the matter was resolved. If the automated process did not resolve the dispute, it was referred to an online mediator who would communicate privately with each party via email. Square Trade was a hybrid of blind bidding and in-person mediation.

Modria was created by Colin Rule, the first director of the original eBay/PayPal dispute resolution. It promised fair, economic and efficient dispute resolution methods by offering a “Fairness Engine,” comprised of a diagnosis module to gather pertinent information, a negotiation module to identify issues that were agreed or in dispute, a mediation module for third-party assistance in settling, and an arbitration module. Modria was praised by some as “the online small-claims court for the 21st century.”

Others questioned the program’s lack of transparency, qualifications of those making decisions, reliability of submitted evidence, and options for appeal, all of which are vital to our system of justice.

The American Bar Association Center for Innovation, along with other ABA entities, is presently helping the New York State Unified Court System with a court-annexed ODR pilot project aimed at resolving consumer debt cases.

While private ODR systems are created by contract agreed by the participants, introducing ODR into a public system creates different cause for concern, as a public system “must produce outcomes that are fair and just, not just convenient, efficient, and cheap.” Condlin, p.

14. When the method of receiving information limits a party’s input to filling in boxes, there may be no opportunity for the party to fully describe their claims, calling to mind companies’ automated telephone recordings with endless irrelevant options and no stated option to speak to an actual person.

Condlin also addresses the algorithms used to resolve disputes. As they are proprietary in nature, only their owners and creators know them, which poses a problem for a public system which must be transparent and known equally to all.

ADR has encouraged parties to cooperate and communicate and work together to resolve differences, but ODR could work to undo some of that progress, due to its online format. People can tend to be more combative, adversarial and selfish when they are on a computer as opposed to face-to-face. Condlin, p. 28.

Condlin concludes his paper stating that proponents of ODR will have to demonstrate how algorithm-based systems to resolve disputes “can make the complex legal and moral judgments at the heart of substantively complicated disputes in ways that both protect the rights of the parties and communicate messages to the population at large about the nature and limits of acceptable conduct.” Condlin, p. 31. Systems should be designed so parties can fully and fairly describe their claims or defenses in accordance with “substantive, evidentiary, and procedural rules that everyone in the process is aware of and accepts as legitimate.”

Condlin, p. 32. Condlin points out, “[s]oftware algorithms can think, but they cannot reason.” Finally, he states, “[w]e know ODR is convenient, fast and cheap What we do not know is whether it can be fair, caring and just…” Condlin, p. 33.

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May 2017

THANKWORTHY By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.

BETTER TOGETHER

About forty-five miles northwest of Knoxville sits the town of Wartburg, TN. It was founded in the 1840’s by German immigrants and eventually incorporated as a city in 1851.1 If you have always wondered about the name, some say it was named after Wartburg Castle in Germany, the place where Martin Luther spent a year translating the New Testament into German.2 Today, it has a little over 900 residents, but in 1880, it only had around 150.3 Just two years later, it added another resident, a baby girl named Maude.4

Maude was one of five children, three boys and two girls, born and raised in Wartburg, Tennessee. Not much is known about her early days, but she was smart and ambitious. By 1895, she was a freshman at Maryville College studying in the Latin-Scientific Course.5 About this time, something interesting was going on at the little land grant university across the river. The University of Tennessee had just awarded its first baccalaureate degree to a woman – two women, to be precise – Emma Ellis and Elise Ogden.6 By 1903, there were enough women enrolled to warrant the opening of a new dormitory, and the numbers just grew from there.7

In 1906, Maude enrolled at the UT College of Law. By this time, a young woman named Marion Scudder Griffin had been knocking on the door of the Tennessee Supreme Court and the Tennessee General Assembly for six years trying to get herself a license to practice law.8 While Maude was in law school, the General Assembly passed the ‘Woman Practicing Law in Tennessee Act” which officially allowed women to be licensed to practice law in the state in 1907.9 Just two years later, in 1909, Maude Riseden Hughett became the first female law school graduate of the UT College of Law and in the entire South.10 She didn’t have to fight for her law license.

However, Maude did not stay put after she passed the bar exam.

She moved to Louisville, Kentucky, got married, had two children, and opened a law practice with her husband and fellow attorney, J.L. Hughett.11 She was the first woman admitted to practice law before any federal court in the South.12 She was a plaintiff in a famous mineral rights case in which the Kentucky Court of Appeals explained to all of us the difference between a willful trespasser and an innocent trespasser: “one knows he is wrong and the other believes he is right.”13 That phrase alone has gotten more than one law student past the property exam.

Maude went on to become the first woman county judge pro tem of Kentucky. In 1963, she, her daughter Josephine P. Hughett, and her sister Mae R. Stricklin (an attorney in Wartburg) were admitted to practice before the U.S. Supreme Court in 1963 so that they could argue a case.14

Think about that. You, your daughter, and your sister standing in front of Chief Justice Warren and the rest of the justices right hands raised and heads held high. Maude was 81 years old, and it must have been a proud day for Wartburg, Tennessee. Just five years later, in August 1968, Maude Riseden Hughett passed away at the age of 86.15

Certainly, Maude’s story is inspiring, but it is more than that. It is the story of numerous attorneys coming together to create an opportunity for one.

There was Thomas J. Freeman, the former Tennessee Supreme Court justice who wrote a letter proposing that the University of May 2017

Tennessee “organize and conduct a law course.” The University liked the idea so much that they made him dean of the new Law Department, and paid him an annual salary of $2,500.16 He retired due to illness years before Maude became a student. Then, there was Marion Scudder Griffin who went to court (twice) and to the legislature to pass a law so that, two years later, Maude could be admitted to the bar when she graduated from law school. History doesn’t tell us if Marion and Maude ever met.

These are just two of the people who made Maude’s story possible.

Maude passed the opportunity and vision on to her daughter and her sister so all three could take the oath together before the U.S. Supreme Court. That is the uniqueness of our profession. Even the trailblazers have someone who has gone before – someone who made their story possible. That is why Maude, and those who made her story possible, are thankworthy.

Who made your story possible? If you would like to nominate an attorney for the thankworthy list, just send me an e-mail. Good stories need to be told.

1 Donald Todd, Morgan County, Encyclopedia of Tennessee History (Feb. 22, 2011), available at http://tennesseeencyclopedia.net/entry.php?rec=942 (last visited Apr. 10, 2017); Wartburg History, Central High of Wartburg, http://wchs.k12tn.net/community/ wartburghistory/wartburghistory.html (last visited Apr. 10, 2017).

2 Encyclopaedia Britannica, Wartburg Castle, Germany (Sept. 30, 2010) https://www. britannica.com/topic/Wartburg (last visited Apr. 10, 2017).

3 U.S. Census Bureau, Wartburg City, Tennessee, https://www.britannica.com/topic/ Wartburg (last visited Apr. 10, 2017).

4 Michael D. Nestor, Joseph L. Hughett, 1883-1954, s/o Calvin Hughett, http://www. mdnestor.com/hughett/hughett1224.html (last visited Apr. 10, 2017).

5 Maryville College Catalog 1896-97, available at http://archive.org/stream/ maryvillecoll189697mary/maryvillecoll189697mary_djvu.txt.

6 Women & the Univ. of Tenn. (Special Collections): History of Women at UTK, http:// archive.org/stream/maryvillecoll189697mary/maryvillecoll189697mary_djvu.txt (last visited Apr. 10, 2017).

7 Id. 8 Ex parte Griffin, 71 S.W.746,746 (Tenn. 1901).

9 Tenn. Pub. Acts 1907, ch. 69, 1 (1907). In 1972, the law was amended to change the age to eighteen. Tenn. Pub. Acts. 1972, ch. 612, § 2 (1972), Tenn. Code Ann. § 29-104 (1972). Today, this statute can be found codified at Tenn. Code Ann. 23-1-107 (2017).

10 Maude Riseden Hughett (1909), TENNESSEE LAW MAGAZINE (Fall 15 Sp. Ed.), available at http://law.utk.edu/wp-content/uploads/2015/03/Tennessee-Law-Fall-15-web. pdf#page=6.

11 Id. 12 Obituary, Mrs. Maude Hughett Dies in Louisville, THE ADVOCATE-MESSENGER, Aug. 19, 1968, at 2, available at https://www.newspapers.com/newspage/143226534.

13 Hughett v. Caldwell County, 230 S.W.2d 92, 94 (Ky. Ct. App. 1950).

14 Journal of the Supreme Court of the United States 50 (Oct. 15, 1963), available at https://www.supremecourt.gov/orders/scannedjournals/1963_Journal.pdf.

15 Id. 16 1890 The Beginning, TENNESSEE LAW MAGAZINE, 3 (Fall 15 Sp. Ed.), available at http:// law.utk.edu/wp-content/uploads/2015/03/Tennessee-Law-Fall-15-web.pdf#page=6.

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15

DAMN THE TORPEDOES! PRESIDENT TRUMP GOES FULL SPEED AHEAD WITH HIS IMMIGRATION AGENDA

When Donald Trump announced his presidential candidacy, he memorably described this nation’s Mexican immigrants as follows: “They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”1 As his candidacy progressed, Trump pledged to build a border wall at Mexico’s expense, to ban Muslims from entering the country, and to deport the “bad hombres” plaguing our country.2 Upon taking office, President Trump immediately effected significant changes to the nation’s immigration policy through a series of executive orders. This article examines the key provisions of those orders and the legal challenges threatening their implementation.

The Beleaguered Travel Bans

Within a week of assuming office, President Trump signed Executive Order 13769, Protecting the Nation From Foreign Terrorist Entry Into the United States.3 The order imposed an indefinite ban on entry by Syrian refugees, a 90-day suspension of entry by non-citizens from seven predominantly Islamic countries, and a 120-day suspension of the U.S. Refugee Admissions Program.4 Exceptions to the travel ban were permitted on a case-by-case basis, including “when the person is a religious minority in his country of nationality facing religious persecution.”5

The immediate effect was chaos in airports across the world. Immigration officials cancelled thousands of visas without notice, leading to hundreds of non-citizens with seemingly valid travel documents being denied permission to board U.S.-bound planes. Of those permitted to travel to the U.S., many were denied entry or detained upon arrival.

The administration itself displayed confusion over the scope of the order, initially declaring that it applied to legal permanent residents only to reverse that position a few days later.

Protesters demonstrated at airports, and both foreign and domestic leaders, including several prominent Republicans, criticized the implementation of the travel ban.6

The most successful of the challenges to Executive Order 13769 occurred in Washington v. Trump, in which the states of Washington and Minnesota convinced a federal judge to temporarily block the enforcement of the travel ban.7 The Ninth Circuit affirmed, concluding that the government was not likely to prevail against the states’ claim of procedural due process.8 In short, the court found that the

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Executive Order deprived individuals of their right to travel to or reenter the U.S. without adequate notice and opportunity to respond.9

Instead of appealing, President Trump replaced the first order with Executive Order 13780, which bears the same title as its predecessor.10 Among other differences, the revised travel ban does not include Iraq on the list of countries subject to the 90day suspension; it exempts legal permanent residents and other classes of non-citizens; and it omits the indefinite ban on Syrian refugees.

In addition, the revised travel ban gives no preference to claimants facing religious persecution – a provision that detractors characterized as favoring Christians from Islamic countries.11

So far, the watered-down version of the travel ban has fared no better in the courts.

On March 15, 2017, a federal judge in Hawaii granted a nationwide temporary restraining order, ruling that the revised ban likely violated the Establishment Clause by discriminating against Muslims.12 Looking beyond the neutral language of the order, the court relied upon the demographics of the affected populations as well as the comments by President Trump and his advisors indicating that the objective of the order was to exclude Muslims.13 One day later, a federal judge in Maryland issued a similar ruling, concluding that the travel ban likely violated the Establishment Clause and a provision of the Immigration and Nationality Act (INA) prohibiting national-origin discrimination in the issuance of immigrant visas.14

The government has appealed both rulings, and President Trump has vowed to take the matter to the Supreme Court if necessary.15 The recent appointment of Justice Neil Gorsuch ostensibly bolsters the odds of the Court upholding the ban, although Justice Gorsuch dismissed as “silly” the notion that his nomination was the best hope for salvaging the ban.16 Border Policy: The Wall, Increased Detention, and Fast-track Removal

President Trump put into effect several border policies in Executive Order 13767, Border Security and Immigration Enforcement Improvements, also signed during his first week in office.17 First, President Trump directed the Secretary of Homeland Security (DHS) to “take all appropriate steps to immediately plan, design, and construct a physical wall along

DICTA

the southern border.”18 In addition, the order establishes the detention of undocumented immigrants as a crucial element of Trump’s border policy. To that end, the order mandates the construction of new detention facilities along the border and signals an end to the practice of “catch-and-release.”19

At this stage, the main challenges facing the border wall and the new detention facilities are logistics and funding. DHS is still conducting a “comprehensive study” of the border, including “geophysical and topographical aspects” that could present difficulties for the construction of a contiguous wall.20 DHS is also in the process of considering initial design proposals, which range from a simple concrete barricade to a high-tech barrier outfitted with fiber optic cables and solar panels.21 A leaked DHS document estimates the initial cost at $21.6 billion.22 Although President Trump continues to insist that Mexico will pay for the wall, so far the proposals for achieving that goal – such as imposing a tariff on Mexican imports and tapping into funds sent to Mexico by immigrants – have encountered significant resistance.23 As a result, President Trump will likely need major appropriations from Congress to fund the border wall, the detention facilities, and the personnel needed to staff them.

Another component of Trump’s border policy is an expansion of the practice of expedited removal, which entails immigration officials ordering deportation without further hearing or review.24 DHS Secretary John Kelly has signaled his intention to abandon the current practice of limiting expedited removal to individuals detained within 14 days of entry and within 100 miles of the border.25 This development is certain to generate major constitutional litigation. The most obvious claim is that immigrants apprehended well after entry or outside the border area have greater due process rights, meaning that a field agent cannot summarily order their removal with no opportunity for review.26 Interior Policy: Secure Communities and Sanctuary Cities President Trump effected major changes to immigration policy within the borders in Executive Order 13768, Enhancing Public Safety in the Interior of the United States.27 Departing from President Obama’s approach of deporting “felons, not families,” Executive Order 13768 prioritized the deportation May 2017

COVER STORY By: William Gill Assistant Professor LMU Duncan School of Law

of immigrants who have been convicted of any criminal offense, who have been charged with any offense, or who “have committed acts that constitute a chargeable criminal offense.”28 Under this provision, any minor offense is enough to prioritize an individual for deportation.29 The order also revived the “Secure Communities” program, an initiative in effect from 2008 to 2014 that created partnerships between federal, state, and local law enforcement agencies to identify individuals whose crimes made them deportation priorities.30 Similarly, the order encouraged DHS to expand the use of INA § 287(g), which authorizes DHS to deputize state and local law enforcement officials to enforce federal immigration law.31

Currently there are no section 287(g) jurisdictions in Tennessee, but the Knox County Sheriff ’s Office recently applied to participate in the program. The ACLU has publicly opposed the application, citing allegations of abuse at the Knox County Detention Facility and a comment by the Knox County Sheriff after the denial of a previous application that he would “stack [undocumented] violators like cordwood in the Knox County jail.”32 Should Knox County’s application be approved, the challenge will be to avoid the problems associated with these programs in the past, including racial profiling and mistrust of the police within immigrant communities.33

Another noteworthy provision of Executive Order 13768 denies federal funding to “Sanctuary Jurisdictions,” defined as any jurisdiction that “willfully refuse(s) to comply” with federal information-sharing requirements.34 Attorney General Jeff Sessions recently announced that states and municipalities must certify compliance with the sanctuary-jurisdiction provision to qualify for Office of Justice programs, which provide billions of dollars in funding to criminal-justice organizations.35

Several cities have challenged the enforcement of the sanctuary-jurisdiction policy, including the California cities of San Francisco and Santa Clara, the Massachusetts cities of Chelsea and Lawrence, and Seattle, Washington. Asserting an array of constitutional arguments, the cities contend that the provision is vague, usurps local criminal-justice functions, and exercises spending power that belongs exclusively to Congress.36 At the time of writing, these claims remain unresolved.

May 2017

Conclusion: An Uncertain Future for Existing Immigration Programs

President Trump has shown a commitment to press forward with his immigration policies despite significant impediments. As of yet, however, he has not acted on two programs he pledged to eradicate: Deferred Action for Childhood Arrivals 1 Washington Post Staff, Full Text: Donald Trump Announces a Presidential Bid, WASH. POST (June 16, 2015), https://www.washingtonpost.com/news/ post-politics/wp/2015/06/16/full-text-donald-trumpannounces-a-presidential-bid.

2 See, e.g., Maya Rhodan, Donald Trump Raises Eyebrows with ‘Bad Hombres’ Line, TIME, https://time. com/4537847/donald-trump-bad-hombres.

3 82 Fed. Reg. 8,977 (Jan. 27, 2017), available at www. federalregister.gov/executive-order/13769.

4 Id. §§ 3, 5, 82 Fed. Reg. at 8,977-79.

5 Id. § 5(e), 82 Fed. Reg. at 8,979.

6 See, e.g., Yeganeh Torbati et al., Chaos, Anger as Trump Order Halts Some Muslim Immigrants, REUTERS (Jan. 29, 2017), http://www.reuters.com/article/ususa-trump-immigration-chaos-idUSKBN15C0LD; Aaron Blake, Whip Count: Here’s Where Republicans Stand on Trump’s Controversial Travel Ban, WASH. POST (Jan. 31, 2017), https://www.washingtonpost.com/news/the-fix/ wp/2017/01/29/heres-where-republicans-stand-onpresident-trumps-controversial-travel-ban.

7 No. C17-0141JLR, 2017 WL 462040, at *2 (W.D. Wash.

Feb. 3, 2017).

8 Washington v. Trump, 847 F.3d 1151, 1164-67 (9th Cir. 2017).

9 Id. at 1164.

10 Protecting the Nation From Foreign Terrorist Entry Into the United States, 82 Fed. Reg. 13,209 (Mar. 9, 2017), available at www.federalregister.gov/executiveorder/13780.

11 See id.

12 Hawaii v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 1011673, at *12-16 (D. Haw. Mar. 15, 2017).

13 Id. at *12-14.

14 Int’l Refugee Assistance Project v. Trump, No. CV TDC17-0361, 2017 WL 1018235, at *8-16 (D. Md. Mar. 16, 2017) (citing INA § 202(a)(1)(A); 8 U.S.C. § 1152(a)(1)(A)).

Notably, the Maryland court did not include the 120-day suspension of the refugee program in its injunction. Id. at 17-18.

15 Dave Boucher et al., Trump in Nashville: ‘Time for us to Embrace our Glorious National Destiny, TENNESSEAN (Mar. 15, 2017), http://www.tennessean.com/story/news/ politics/2017/03/15/trump-rally-nashville/99159270.

16 Evan Halper, Gorsuch Says He Is No Bulwark for the Travel Ban, L.A. TIMES (Mar. 21, 2017), http://www. latimes.com/politics/washington/la-na-essentialwashington-updates-gorsuch-says-he-is-no-bulwark-forthe-1490111806-htmlstory.html.

17 82 Fed. Reg. 8,793 (Jan. 25, 2017), available at www. federalregister.gov/executive-order/13767.

18 Id. § 4, 82 Fed. Reg. at 8,794.

19 Id. § 3(e), 82 Fed. Reg. at 8,794.

20 Exec. Order 13767, § 4(d), 82 Fed. Reg. at 8,794.

21 Chris Isidore, Trump’s Mexican Border Wall: See the Proposals, CNN MONEY (Apr. 8, 2017), http://money.cnn. com/2017/04/07/news/companies/mexican-border-walltrump.

22 Philip Bump, The Initial Estimate Is Here: Trump’s Wall Will Cost More than a Year of the Space Program, WASH.

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(DACA), which protects undocumented immigrants who entered the U.S. at a young age, and the H-1B visa program for skilled workers. Given the setbacks that have arisen with the travel ban and his other initiatives, the question is whether Trump will follow through on the remaining pieces of his ambitious immigration agenda.

POST (Feb. 10, 2017), https://www.washingtonpost.com/ news/politics/wp/2017/02/10/the-initial-estimate-ishere-trumps-wall-will-cost-more-than-a-year-of-thespace-program.

23 Catherine E. Shoichet et al., Three Ways Mexico Could Pay for the Wall, CNN POLITICS (Mar. 29, 2017), http:// www.cnn.com/2017/03/29/politics/can-mexico-pay-forwall-trnd.

24 Exec. Order 13767, § 11(c), 82 Fed. Reg. at 8,796 (citing INA § 235(b)(1)(A)(i), 8 U.S.C. § 1125(b)(1)(A)(i)).

25 Memorandum Implementing the President’s Border Security and Immigration Enforcement Improvements Policies, DHS Secretary John Kelly (Feb. 20, 2017), available at www.dhs.gov/sites/default/files/ publications/17_0220_S1_Implementing-the-PresidentsBorder-Security-Immigration-Enforcement-ImprovementPolicies.pdf.

26 David G. Savage, Trump’s Fast-track Deportations Face a Legal Challenge: Do Unauthorized Immigrants Have a Right to a Hearing Before a Judge, L.A. TIMES (Mar. 3, 2017), http://www.latimes.com/politics/la-na-pol-deportlegal-20170302-story.html.

27 82 Fed. Reg. 8,799 (Jan. 25, 2017), available at www. federalregister.gov/executive-order/13768.

28 Id. § 5, 82 Fed. Reg. at 8800.

29 Debra Cassens Weiss, Deportation Priorities Will Expand to Include Those Convicted of Even Minor Crimes, ABA Journal (Feb. 21, 2017), http://www.abajournal.com/ news/article/deportation_priorities_will_expand_along_ with_the_expedited_removal_process.

30 Exec. Order 13768, § 10, 82 Fed. Reg. at 8801.

31 Id. § 8, 82 Fed. Reg. at 8800 (citing INA § 287(g), 8 U.S.C. § 1357(g)).

32 Letter from Chris Rickerd, ACLU Policy Counsel, to Bruce Friedman, DHS Senior Policy Advisor (Mar. 31, 2017), available at www.aclu-tn.org/wp-content/ uploads/2017/04/ACLU-287g-Letter-3-31-17_Redacted. pdf.

33 Letter from Thomas E. Perez, Assistant Attorney General, U.S. Dep’t of Justice, to Bill Montgomery, County Attorney, Maricopa County, Arizona (Dec. 15, 2011), available at https://www.justice.gov/sites/default/files/ crt/legacy/2011/12/15/mcso_findletter_12-15-11.pdf; Editorial, The ‘Secure Communities’ Illusion, N.Y. TIMES (Sept. 5, 2014), https://www.nytimes.com/2014/09/06/ opinion/the-secure-communities-illusion.html.

34 Exec. Order 13768, § 9(a), 82 Fed. Reg. at 8801 (citing 8 U.S.C. § 1373).

35 Jordan Fabian, Sessions Says Grants to be Withheld from Sanctuary Cities, THE HILL (Mar. 27, 2017), http:// thehill.com/homenews/administration/325943-sessionssays-grants-to-be-withheld-from-sanctuary-cities.

36 See Eric Levenson, Seattle Challenges Trump Over Executive Order on ‘Sanctuary Cities,’ CNN POLITICS (Mar. 30, 2017), http://www.cnn.com/2017/03/30/ politics/seattle-lawsuit-trump-sanctuary-city; Scott Malone & Dan Levine, Challenges to Trump’s Immigration Orders Spread to More U.S. States, REUTERS (Feb. 1, 2017), http://www.reuters.com/article/us-usa-trumpimmigration-sanfrancisco-idUSKBN15F2B1.

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OPEN SERVICE PROJECT – PLEASE VOLUNTEER ON MAY 3

The Open Service Project with the YWCA will be held on Wednesday, May 3, 2017, beginning at 6:00 p.m. This project includes preparing and serving supper to approximately 50 residents. We need volunteers to prepare supper, decorate the dining room, serve supper, and to help clean up afterwards. Visiting with those who attend the dinner is also an element of this project. Immediately following supper – and before clean-up – representatives from the YWCA will be on hand to offer tours of the facility to interested folks. It truly is a meaningful experience for all who attend.

For 2017, the Open Service Task Force committee is chaired by Troy Weston and Elizabeth Carroll and the committee is comprised of Charme Allen, Katrina Arbogast, Maha Ayesh, Debra House and Farrell Levy. Please consider volunteering at the May 3rd YWCA event.

Your time will have a lasting impact on those served! Please contact Troy Weston at tweston@eblaw.us – 865.544.2010 OR Elizabeth Carroll at elizabeth@harmonyfamilycenter.org – 865.300.8777 to register for the May 3rd event.

Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records: Christopher M. Caldwell BPR # 032020 Pratt Aycock, PLLC 705 Gate Lane, Suite 202 Knoxville, TN 37909 Ph. (865) 769-6969 Fax: (865) 622-9541 ccaldwell@prattaycock.com M. Douglas Campbell, Jr. BPR # 012940 Covenant Health 100 Fort Sanders West Blvd.

Knoxville, TN 37922 Ph. (865) 531-5706 Fax: (865) 531-5272 dcampbe3@covhlth.com N. Craig Holloway BPR # 033354 Leitner, Williams, Dooley, & Napolitan, PLLC 900 South Gay St., Ste. 1800 Knoxville, TN 37902 Ph. (865) 523-0404 Fax: (865) 673-0260 craig.holloway@leitnerfirm.com Stephen T. Mealor BPR # 025569 Tennessee Valley Authority 400 West Summit Hill Drive, WT 10D-K Knoxville, TN 37902 Ph. (865) 632-2515 Fax: (865) 673-8972 stmealor@tva.gov Will Parz BPR # 034870 Will Parz Law Office P.O. Box 481 Knoxville, TN 37901 Ph. (423) 406-3096 willparzlaw@gmail.com

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Wendy G. Patrick BPR # 032298 140B Court Avenue Sevierville, TN 37862 Ph. (865) 244-6000 Fax: (865) 229-5326 wendy.patrick@outlook.com Tiffany Starr Smith BPR # 032371 District Attorney General – 5th Judicial District 942 E. Lamar Alexander Parkway Maryville, TN 37804 Ph. (865) 273-5600 tssmith@tndagc.org Betsy G. Stibler BPR # 035340 1751 W. Morris Blvd, Suite 2 Morristown, TN 37813 Ph. (423) 254-0354 Fax: (423) 587-7175 betsy@stiblerlaw.com Kenneth C. Tucker BPR # 017596 Covenant Health 100 Fort Sanders West Blvd.

Knoxville, TN 37922 Ph. (865) 531-5414 Fax: (865) 531-5272 ktucker3@covhlth.com

KNOX COUNTY JUDICIAL MAGISTRATE FACT SHEET Qualifications – Licensed attorney and are required to be a resident of Knox County, Tennessee Salary - $92,330.42, plus benefits Term – Appointment to be made on July 24, 2017 to fill the unexpired term of Magistrate Harold Stewart. Term to expire January 31, 2021.

Duties – Include, but are not necessarily limited to, issuance of arrest warrants, search warrants and mittimus. The judicial magistrates also issue forfeiture warrants and conduct jail arraignments by means of real-time video conference. The judicial magistrates have the duty of determining whether or not probable cause exist to issue an arrest warrant when a crime is alleged to have been committed.

Contact Person – Please send resume’ by noon, Wednesday, May 31, 2017 at the address below.

Donna Corbitt, Judicial Court Administrator Room M-70, City-County Building P.O. Box 2404, Knoxville, TN 37901 Telephone (865) 215-2370 FAX (865) 215-2403 donna.corbitt@knoxcounty.org

DICTA

May 2017

WELL READ By: Lee T. Nutini Gideon Cooper & Essary

LEGAL WRITING REFRESHER

It’s that time of year again. Summer is right around the corner, which can only mean that the upcoming months will be full of sun, sand, and . . . summer associates. Yes, that’s right. Soon enough, law students will be leaving the classrooms, trading their yoga pants for blazers, and preparing for summer roles at law firms, judicial chambers, and other legal employers. This article will serve as a legal writing refresher for law students as they embark on a summer of legal drafting and desperate attempts to impress their employers. It will also hopefully serve as a refresher for other DICTA readers whose writing can start to drift away from these no-nonsense rules.

Use plain English. In other words, write the way you speak (but, of course, leave out the “likes” and the slang). Lawyers, judges, and our clients all speak the same modern English. The words should not change when you put them on the page. You do not sound more impressive when you use “heretofore.” A similar rule is to avoid using words in a sentence in a way that you would never use them when speaking. My biggest pet peeve is writing the word “as” instead of “because” – no one has ever told a friend they did something “as” (because) X or Y happened.

probably useless. Cut them out. You should get comfortable covering your own writing with red ink.

You are not writing the next great mystery novel. Several judges with whom I have worked mention this rule. Legal writing should not have surprises. Do not take the reader mysteriously through the facts and applicable law without providing the conclusion first. Give the reader plenty of notice as to what will be important. The reader will gladly follow along and look for the important information as she reads. If you give sufficient notice, your reader will seize on the conclusion when it arrives again – rather than sitting awestruck or confused. If you take a reader down a mysterious path to a conclusion, she is forced to re-read the brief to ensure that no stones were left unturned along the way.

Law students will thrive this summer by following these simple rules. If you plan to be the employer of these students, please hand a copy of this article to your new summer employees. Judges, co-counsel, opposing counsel, and the client will all thank you for the improved work product.

“It would have been shorter, but I ran out of time.” It takes much longer to write shorter sentences and shorter briefs. Why? More work takes place in your head than on the page. People usually write long pieces because they start without a direction in mind. They find the ideas as they develop. Such a person did not do any planning or thinking in advance. Remember that it takes time and effort to cut down your thoughts and reduce them to the appropriate words. Precise descriptions are worth the development time. Do yourself and your employer a favor: take that time and make the effort. Nothing is worse than reading a legal brief than blathers on and on when the argument is simple and good.

The argument is less good by page 15 of a 25 page brief. Make it 10.

Remember who you are writing for – and I don’t necessarily mean your “audience.” Writers are taught to focus on their audience. That typically means “the court” in our profession. But remember that as a summer associate (or a young attorney working for a partner), you are actually writing first and foremost for your employer. You need to learn the way your shop writes, and change your writing style accordingly. In a larger law firm, you may have to cultivate different writing styles to match different partners. A judicial law clerk must match the writing style of the judge. Don’t get cute and present your boss with something cuttingedge if that’s not her thing. Trust me: you need to worry more about your employer’s writing style than your own. You can practice alternative writing styles on your own time.

Edit viciously and physically. Don’t be wedded to the words you put on paper. Print out your writing and pick up a red pen. Then make the paper bleed. Many words and phrases – indeed, whole sentences – are

May 2017

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W O R D P L AY

barrister bullets

By: Peter D. Van de Vate Finkelstein, Kern, Steinberg & Cunningham

MONTHLY MEETINGS

“Angle”

Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of every month beginning at 5:00 p.m. at the Bistro by the Bijou (807 South Gay Street). The next meeting will be held on May 10, 2017. There are many opportunities to get involved, so please contact Barristers President Samantha Parris (samantha@sparrislaw.com) or Vice President Mitchell Panter (tmp@ painebickers.com) for more information.

It is now officially Spring and time to go fishing. So why is fishing called “angling”?

ATHLETICS

The 8th Annual Cornhole Tournament will take place on May 4, 2017, at the Bearden Beer Market, 4524 Old Kingston Pike, Knoxville, TN 37919. Check-in starts at 6:00 p.m. All proceeds benefit Big Brothers Big Sisters of East Tennessee. Registration is available online.

Well, it seems that at about 1450 the verb angle (the noun form fishhook), came from the Old English angel, which was related to the anga, hook. The Old English angel is cognate with the Old High German angul, fishhook, and ango, hook. All of this began with the Latin ancus, crooked.

So, go out with Andy and Opie and do some angling.

The Athletics Committee is also delighted to announce that this year’s charity golf tournament will take place at Holston Hills Country Club on October 30, 2017. We are currently seeking sponsors for the event. If you or someone you know is interested in sponsoring, please contact the Athletics Committee co-chairs, Luke Ihnen (lihnen@ londonamburn.com) or Jeremey Goolsby (jgoolsby@londonamburn. com).

LAW WEEK & SCHOOL OUTREACH

Thank you to all of the volunteers who visited local third grade classes and made this year’s Junior Judges Program a success. The Law Week and School Outreach Committee’s activities will conclude with the Law Day Luncheon on May 3 and will involve the announcement of the 2017 Law & Liberty Award recipient, and reports on the Knox County Schools Career Fair, the Law Day Middle School Essay Contest and the Junior Judges Program.

VETERAN’S LEGAL CLINIC

Every second Wednesday in 2017, volunteers from KBA, staff from Legal Aid of East Tennessee, students from the University of Tennessee School of Law, and agency representatives from the VA and Knox County Veterans Services Office are gathering at the Knox County Public Defender’s Community Law Office for a legal clinic aimed at our nation’s veterans. This collaboration began with a simple idea: making a regular clinic available to our veterans who may have legal questions. Each month, an average of 6-9 attorneys have served anywhere from 10-25 veterans, most of whom have expressed their profound appreciation for the volunteers’ time and the friendly and accessible location at the PD-CLO auditorium.

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DICTA

May 2017

SCHOOLED IN ETHICS By: Judy M. Cornett Professor, U.T. College of Law

CRITICISM OF JUDGES: THE ETHICAL BOUNDARIES

President Donald Trump responded to U.S. District Judge James Robart’s issuance of an injunction against his Executive Order imposing a travel ban on travelers from certain countries by tweeting, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” His use of the phrase “so-called judge” brought condemnation from many quarters, including American Bar Association President Linda Klein. However, President Trump is not a lawyer. If he were, would his use of the phrase “so-called judge” to criticize a federal judge with whom he disagreed constitute an ethical violation?

For Tennessee lawyers, the starting point is Tennessee Rule of Professional Conduct 8.2(a)(1), which provides: “A lawyer shall not make a statement that the lawyer knows to be false or that is made with reckless disregard as to its truth or falsity concerning the qualifications or integrity of . . . a judge.” This rule incorporates the New York Times v. Sullivan standard for proving actual malice in libel actions. Comment [1] to Rule 8.2 explains the rationale for the rule:

example, in Bailey v. Bd. of Prof. Responsibility, 441 S.W.3d 223 (Tenn.

2014), the lawyer became frustrated and agitated during trial and began addressing harsh evaluations of the judge’s performance to the judge herself, in open court: I’ve said to you so many times [that] if you have time to read, if you have time to hear from both sides to think about it, you generally get it right. Quite frankly, Judge, when you don’t have that, you almost always get it wrong. . . . ....

We are on pace here to set a world record for reversible error if we don’t straighten this out. ....

You know, another thing, when is this [c]ourt going to take offense to a lawyer lying to you? I mean, is it ever going to happen? ....

What’s so offensive to me is they make it up all the time and you don’t seem to care that they make it up all the time. ....

They lie to you and you don’t care. What do I do about a lawyer that will lie to the [c]ourt and what do I do about a[j]udge that doesn’t care? How do you think you can get it right if you’re not going to hold lawyers to the standard of telling you the truth?6

Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office . . . . Expressing honest and candid opinions on such matters contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice.

In the most recent Tennessee Supreme Court case to analyze TRPC 8.2(a), Hancock v. Bd. of Prof. Responsibility, 447 S.W.3d 844 (Tenn. 2014), the court used Comment [1] to put an interesting gloss on the rule. In Hancock, the lawyer fee petition was denied by the bankruptcy judge in an opinion characterizing the lawyer’s behavior as “unprofessional,” “dilatory,” “disruptive,” “troubling,” “unacceptable,” “abusive,” “intractable,” and “unfortunate.”1 Angry about this characterization, the lawyer sent the judge an email stating in part:

If you have a decent bone in your body you will get down off your high horse and act like a man instead of a bully and clown, show some honesty and integrity now that you have proved your point, and repair the damage you have done.2

Although the Board charged him with violating Rule 8.2(a), the Tennessee Supreme Court refused to impose discipline on that basis, holding that the rule implicitly requires publication of the malicious statement.3 The court noted that the purpose of the rule is to make sure that the public has accurate information about judges. Indeed, the court noted, the rule “encourages attorneys to provide ‘honest and candid opinions’ for the public’s benefit.”4 Therefore, if there is no publication of the malicious statements to third parties, there is no rationale for imposing discipline.5

In fact, even in some cases where the publication requirement is satisfied, the court does not impose discipline under Rule 8.2(a). For

The Board charged the lawyer with violating Rule 8.2(a), but the Hearing Panel ultimately sanctioned the lawyer only for violating Rule 8.4(d) (conduct prejudicial to the administration of justice) on the ground that the lawyer had made “’rude, insulting, disrespectful and demeaning statements to the [j]udge during open [c]ourt.’”7 Interestingly, the lawyer defended on the basis that “he did not mean to be disrespectful but that he was helping [the judge] to make correct rulings, even if it meant that he had to ‘push and push and push’ her in order to do so.”8 The Hearing Panel recommended a public censure. On appeal, the lawyer did not contest the violation or the sanction, but the Tennessee Supreme Court increased the penalty to a 60-day suspension, citing Farmer v. Bd. of Prof.

Responsibility, 660 S.W.2d 490 (Tenn. 1983).9 In Farmer, decided under the Code of Professional Responsibility, the included the following statements in his brief accompanying his application for permission to appeal an adverse court of appeals decision to the Tennessee Supreme Court: “THIS IS A CASE OF LIES—THE LIES TOLD TO THE TESTATOR BY MR. JOHN D. MARTIN, JR., AND THE LIES OF THE COURT OF APPEALS AND UNION PLANTERS BANK TRYING TO EXCULPATE MR. MARTIN.”10 After quoting this language, the Tennessee Supreme Court declared, “Further discussion is unnecessary.”11 Noting the long pedigree of the prohibition on calling judges liars, the court held that the lawyer’s speech (Continued on Page 22)

May 2017

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ASK MCLAWYER

Question Presented:

1 Fed. Jury Prac. & Instr. § 6:1 (6th ed.) (West 2016). The Tennessee Handbook for Trial Lawyers echoes this:

Dear McLawyer,

I have a jury trial coming up in federal court, and an issue has arisen that I have not considered before. For several reasons (partly to demonstrate the ridiculousness of some of the allegations in the complaint), I would like to read portions of the opposing party’s pleadings during my opening statement. This has led to a debate between some colleagues and me, and I was hoping you could weigh in.

Am I allowed to read from the Complaint during my opening statement?

Answer:

This depends on the preferences of your judge. Appellate courts review a district judge’s conduct of a trial, including the conduct of opening statements, for abuse of discretion. U.S. v. Burns, 298 F.3d 523, 542 (6th Cir. 2002).

The Federal Jury Practice Series addresses this question by counseling caution: In some cases, counsel may want to read from a pleading or an excerpt from a deposition during opening statements.

However, care must be taken to insure that such a practice does not violate a local rule, order or practice. Prudence cautions in favor of receiving permission from the court prior to utilizing items of this sort during opening statements.

The opening statement is limited to an outline of the issues involved and of the facts counsel expects to prove. While permitted to refer to the pleadings and to read from them, counsel may not recite the testimony of each witness in detail. The attorney may, of course, never refer to facts or conditions which are not admissible in evidence.

Trial Handbook for Tenn. Law § 7:2 (West 2016) (citing 2 Am. Jur. 2d, Trial § 522). Both supplements also point out that judges who prefer not to allow the practice of reading pleadings during opening statements will often indicate so in their local rules. Therefore, know your local rules.

The purpose of an opening statement is for counsel to “present an objective overview of the evidence intended to be introduced at trial.”

Burns, 298 F.3d at 543. There is generally no misuse of the opening when counsel merely summarizes what he or she expects the evidence to later reflect in the trial. Thomas v. McKee, 2013 WL 593468, at *9 (citing Burns, 298 F.3d at 543). If you have an important issue demonstrated by the pleadings and the statements in pleadings will come out in the proof of the case, I suspect that reading the complaint would be permissible in the opening statement.

“Ask McLawyer” is dedicated to answering questions on procedure, evidence and trial tactics in a variety of venues and subject matter. Should you have a question for McLawyer, please address the question to Ask McLawyer, c/o Marsha Watson, KBA, 505 Main Street, Suite 50, Knoxville, TN 37902 or mwatson@knoxbar.org. Your question will then be submitted to McLawyer for potential response in this column. McLawyer is an anonymous neutral counsel dedicated to answering questions of procedure from members of the Knoxville Bar Association.

CRITICISM OF JUDGES: THE ETHICAL BOUNDARIES (Continued from Page 21)

not only violated DR 1-102(A), which prohibited conduct prejudicial to the administration of justice, but also violated DR 8-102(B), which provided that “[a] lawyer shall not knowingly make false accusations against a judge or other adjudicatory officer.”12

What can we learn from this rather sparse authority on the scope of Rule 8.2(a)? First, the rule proscribes only criticism that the lawyer “knows” to be false or makes “with reckless disregard as to [the statement’s] truth or falsity.” The rule encourages lawyers to provide the public with “candid and honest opinions” about judges. Second, when criticism is made directly to a judge, the lawyer must be circumspect.

While your criticisms may not be “false,” if delivered in a rude or disrespectful manner, they can still constitute conduct prejudicial to the administration of justice, in violation of TRPC 8.4(d). In the words of the Bailey court, “Even if an attorney believes that the court has issued an erroneous ruling, zealous representation of a client ‘never justifies the use of disrespectful, unprofessional or indecorous language to the court.’”13 Third, above all, do not refer to judges or courts as “liars.”

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So, if he were a lawyer, would President Trump’s tweet violate Rule 8.2(a)? To the extent it accused Judge Robart of lacking the necessary qualifications or integrity to serve as a judge, and to the extent it was false or made with reckless disregard of its truth or falsity, it surely would.

447 S.W.3d at 847.

447 S.W.3d at 848.

3 Id. at 854.

4 Id. at 854-55.

5 Justice Clark concurred in the result, imposing discipline on other grounds, but would have found a violation of Rule 8.2(a) because the lawyer later forwarded his email to third parties. Id. at 858-59.

6 441 S.W.3d at 227.

7 Id. at 230.

8 Id. at 229.

9 Id. at 236.

10 660 S.W.2d at 491.

11 Id. 12 Id. at 492.

13 441 S.W.3d at 234.

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DICTA

May 2017

LONG WINDED By: Jason H. Long Lowe, Yeager & Brown

KINGSPORT, A GATHERING PLACE

On December 13, 1864 General George Stoneman leading a industry. There is a home in Kingsport where legend has it that Paul force of 5,500 Union cavalry soldiers out of Knoxville met up with 300 Simon and Art Garfunkel broke up because Simon giggled at his Confederate troops under the leadership of Colonel Richard Morgan partner’s name. “The Godfather” was shot entirely on location in the on the banks of the Holston River in the small town of Kingsport, town of Kingsport. Justin Timberlake likes to make frequent surprise Tennessee. Like the heroic Spartans of old, the 300, though heavily appearances in Kingsport where he will hold impromptu concerts, outnumbered, held the cavalry at bay for a full day before being flanked although rumor has it he also killed a man there just to watch him and forced to withdraw. This engagement, known as the “Battle of die. The Kingsport Zoo boasts the world’s largest concentration of Kingsport,” is memorialized by a marker in the town where it occurred. monkeys who know how to play the accordion. The real Willie Wonka’s Less than a month after the battle, The New York Times ran an article Chocolate Factory is actually an extension of the Eastman Chemical describing several recent skirmishes and included the Battle of Kingsport.

Plant.

About the city itself, the article stated, “Kingsport is a frightful one Okay so I may have embellished that last paragraph a little bit, but horse town, contains at present less than 100 inhabitants, and is not the point is that Kingsport is a really nice town and a good place to visit. worth describing.” Not exactly the best public relations coup for the city.

Some people reading this are probably wondering why I am schilling for Either someone in town offended the reporter or he was just too lazy to Kingsport. I am glad you asked. I am using space in KBA’s DICTA to write anything else. (On a side note, it reminds me of the time Judge plug for the Tennessee Bar Association Annual Meeting which will take Inman described one of my arguments as “baffling” and said he would place there June 14-17. I figure I can get away with this because I have “take no further note of it.”) waited, as usual, until the last moment to submit this article so Marsha

Contrary to the Times reporter’s either has to publish this or have a blank he TBA decided to host its annual opinion, anyone who knows anything page in DICTA. I am using dirty tactics about upper east Tennessee knows here, but this one is important to me. convention in Kingsport because it that Kingsport is a treasure trove The TBA decided to host its annual is important that lawyers around the of interesting historical events, convention in Kingsport because it is state know that our professional organization entertainment options, and natural important that lawyers around the state represents all Tennessee lawyers and not just beauty. For example, did you know that know that our professional organization Kingsport was originally settled after represents all Tennessee lawyers and not the attorneys in big cities. the American Revolutionary War in just the attorneys in big cities. However, 1787, and at that time was known as the to have a successful convention, we need town of “Salt Lick?” The city became to have attorneys sign up. an important shipping port on Holston River and a staging ground for

The Annual Convention is the one time when lawyers across pioneers traveling overland on the wilderness road to Kentucky. The city the state can gather together and spend time with one another and was originally chartered in 1822 and re-chartered in 1917, as an early the judges. For that reason alone, I’ve never heard anyone complain example of a “garden city.” In fact, its nickname was the “Model City” about attending convention. Moreover, the programming and CLE because the town was laid out to provide for specific areas of commerce, opportunities this year are, in my estimation, excellent. There will be churches, houses and industry. Speaking of industry, the town is home to a Bench Bar Conference about the Hatfield and McCoy feud with Eastman Chemical Company, one of the largest chemical companies in surviving members of the Hatfield and McCoy clans present. Don’t the world with over 40 manufacturing sites and employing approximately let the dinner show in Pigeon Forge fool you, this chapter of American 15,000 people. history is fascinating and well worth understanding, especially for those

There are number of famous people who were either born or raised of us who hail from the Appalachian region. There will be programming in Kingsport including Harry Coover (inventor of Super Glue), Bobby about legislative developments in our General Assembly, living a Dodd (former player for the University of Tennessee Volunteers and later healthier lifestyle, and the neuroscience of decision making. If CLE a coach at George Tech), and Nick Castle (actor who played Michael programming is not a high priority for you, there will be a number of Myers in the original Halloween). On that last note, I’m not sure how social events as well, capped off by the Kingsport Karnival on Thursday Castle did not win an Oscar for that performance. Masterful use of the night showing all that Kingsport has to offer. Multiple bands and acts head tilt to convey a full range of emotions. will be on display with good food and drink abundant.

Kingsport is home to Bays Mountain State Park, a multipurpose

I appreciated that the KBA has let me hijack this space to advertise. aquatic center, and the Pals’ Fun Center, housing a hand-carved full-size I strongly support and recommend that anyone reading this article carousel. Did you know that Kingsport was ranked in the top ten cities first attend and dedicate their time and energies to all Knoxville Bar in America to walk, according to Walking magazine? I bet you didn’t.

Association activities this summer. Nobody does it better than the KBA.

Here are some other things I bet you don’t know. Kingsport is home However, if you find yourself in the middle of June with nothing to do to the third largest ball of twine in the continental United States. It and itching for a bar association event (as I know we are all prone to do is the birth place, and continues to be the epicenter, of the rap music from time to time), then I urge you to give Kingsport a chance.

T

May 2017

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LIFE HACKS By: Angelia Nystrom University of Tennessee Institute of Agriculture

MAKING THE MOST OF MEAL-TIME

For several years, Hugh told people that Casa Don Gallo in Rocky Hill was our “second kitchen.” Trace protested, stating that our “second kitchen” may actually be Tandur on Bearden Hill. It is no secret in our circle of friends that we eat out—a lot. With our work schedules and Trace’s swim schedule and other school activities, it seems that my kitchen is used less and less frequently. One month, after an inventory of expenses, I decided it was time to cut back on the restaurant food and focus on eating at home. Unfortunately, our home-cooked dinners quickly became either pork chops or rotisserie chicken from The Fresh Market. I knew I had failed when Trace told me, “If I have to eat one more rotisserie chicken, I am going to sprout feathers and start clucking.”

I know that we are not alone in the struggle. I asked a few busy lawyers to give us some ideas to make mealtimes easier and more economical.

Dawn Coppock says, “I like to cook, and I like to eat at home. Also I live ‘out’ so going out to eat is a drive and not easier than cooking at home. I cook on the weekends, and we eat leftovers for weeknights at least one or two nights a week. If I see I’m not going to get to leftovers in a timely manner (Does that sound like a lawyer?), I put them in the freezer so I have a quick lunch or dinner later. I often have spaghetti sauce and chili in the freezer for example. I cook things like pot roast and roast chicken that recycle to tacos, soup and casseroles pretty easily.”

Dawn continues, “Also, I have meat in the freezer that I can defrost while I’m working, and we grill whatever and make a salad. Last resort, rotisserie chicken from the grocery and a bag of salad. I’m pretty sure that chicken has hormones and other junk that is better consumed in moderation if you don’t want to grow feathers. But better for us than Big Macs.”

Dawn’s final suggestion, “When it is just me for dinner I get out the good cheese, make a fancy, little cheese plate with nuts, fruit and olives. 5 minutes. I can carry it out to the deck if the weather is nice. I love it, but that is just me.”

Esther Roberts also lives ‘out.’ She offers these suggestions: “As old-fashioned as it sounds, this farmchic/ladylawyer still relies heavily on crock pots (slow cookers). I own three. My ‘life hack’ is to have all three simmering one weekend a month, with chicken and veggies in one, beef and veggies in another, and vegetable soup or pinto beans in the other.

Once everything is cooked, I line up several freezer containers and fill each one and freeze. This provides at least a dozen suppers to quickly pull from the freezer and reheat during our busiest evenings. I am very fortunate that Hubs Greg doesn’t mind ‘one dish’ suppers, and that he is easy to please.”

Esther continues, “My second ‘life hack’ is the count my blessings that, while we live in a beautiful, rural setting, my farm is mere minutes from an Aubrey’s, Puleo’s, and Cracker Barrel. Speed dial and a quick pick-up run and voila! Dinner at home in 15 minutes!”

Crista Cuccaro believes meal planning is key. “We plan our week’s meals and purchase the groceries for those meals all at once. If it’s a good week, we can even fit in prep in advance, such as chopping onions.”

She continues, “We also alternate on who takes the lead for dinner.

From time to time, we both have weeknight obligations, whether workrelated or otherwise, so we always plan who will make which weeknight meals, too. We make enough dinner during the week so that we can take the extra for lunch the next day – this is a huge time and money saver!”

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Jamie Ballinger-Holden agrees, “On Sunday, we always prepare something that has lots of leftovers and tastes better on the second day (such as a stew or a casserole). That way on Monday night we don’t have to cook. Mondays are hard enough!”

Cheryl Rice says, “At our house we do a little of everything. When my kids were younger and less involved after school, we usually cooked 2 recipes on the weekend to do double duty (2 nights.) Now, with more after school and evening activities to attend (and drive kids to/from), we work harder at being together than eating in. That said, we still try to plan ahead on the weekend for what the week looks like and cook one item that we can easily warm up during the week for a dinner or 2. One of my favorites is when Bill grills marinated chicken tenders.

We might eat them one evening with a salad, vegetable and roll, and another evening we enjoy a southwestern style grilled chicken salad, putting the reheated tenders on a bed of lettuce with corn, black beans, tomatoes, shredded cheese, tortilla chips, salsa, etc. Same goes for pork tenderloin—traditional one night, then use the leftovers with soft corn tortillas for a build your own taco night.”

Heather Anderson enjoys taco night, albeit differently. “Some weeks I am better about thinking ahead (dinner-wise). Other weeks, I know that Mondays are $5 burger nights at Calhouns….and we have Taco Tuesday (from the Lego movie - every week, whether at home, on vacation or eating at a restaurant which serves tacos). Chick-Fil-A is a regular weekly staple, especially in the spring with baseball practice and games! And I love my Crock Pots! (Yes, I have more than one just like I have more than one dishwasher!)”

Annette Winston has a solution even easier than a Crock Pot. “I have recently discovered ‘sheet pan recipes; and, man, are they are cinch.

Google it; you’ll see.”

Katie Lane likes even more convenience. Says Katie, “There are two words for dinner: Trader Joe’s!” Kristin Seabrook also likes convenience.

She says, “We use Plated and love it!”

Brian Lapps, though, may have the most convenient solution of all. “Our kids are old enough that we can say, ‘There’s plenty of food in the pantry and fridge. If you don’t like what’s there, you know where the grocery store is.’”

DICTA

May 2017

LIFE AND LAW IN HARMONY By: Leslie

L. Beale, JD

Success Coach Profusion Strategies

FINDING A WAY TO SAY NO

For those of us who grew up in the eighties, the phrase “Just Say No” has a particular connotation. But, saying no can do more for your life than keeping you away from drugs. In fact, learning to say no can be the key to living an intentional and balanced life.

On the surface, there’s nothing so earth-shattering about the idea of say no. We all know that if we say yes to everything we’re asked to do or every opportunity we’re given, we’ll have no time to do the things that really sustain us. But, no matter how many times we hear it, saying no remains a major challenge for many of us.

Why do we keep overextending ourselves when we know we are going to end up exhausted and resentful? I believe there are three things that stop us from saying no, despite our better judgment.

3.

Not Having Clear Priorities

To confidently say no to some things in your life, you need a clear picture of what matters enough to deserve a yes. If you don’t have clearly defined priorities, this picture becomes fuzzy. You lose sight of what saying yes costs you in terms of what is most important.

Knowing yourself and what matters most to you, and prioritizing those things above all else will go a long way to helping you say no to opportunities that just aren’t right for you.

Learning to say no is a process, and it takes some practice. But, freeing up your energy and your schedule for the things that fuel you is life changing.

1. Fear

We’re probably all a little tired of hearing about fear of missing out at this point, but I believe it’s a major reason we struggle with saying no. What if that event you skipped turns out to be the most fun evening of the year? What if the client you’ve been trying to land is at that upcoming conference? What if your boss hands out that important assignment at the next meeting?

We’ve all had moments where we were afraid we might miss out on something if we said no. I’ve certainly spun myself into “what if ” frenzy fretting over the potential of missed opportunities in the past. This fear and self-doubt is uncomfortable, and we usually have no idea how to handle it. We simply aren’t ready to combat those thoughts when they pop up. And so we find ourselves saying yes, time and time again, even though we’re likely to be frustrated about it in the future.

2.

Feeling Not Quite Good Enough

If I were more organized, I would have time to make it to that party.

If I don’t go to the conference, I will feel like I am not taking my career seriously.

If I skip the baby shower at work, I will feel selfish.

So much of the chatter in our heads when we think about saying no reminds us of our perceived inadequacies. We’re selfish. We’re unorganized. We should be able to find a way to do it all.

Rather than admit to ourselves we really can’t do it all and listen to our inner critic tell us we aren’t quite good enough, we say yes. Feeling overextended, rushed, and stressed is what we’re used to, and so it is comfortable.

It takes time and commitment to develop a new habit. It takes time to quiet the voice in your head that says you are bad for saying no. For many of us, that process is more than we are ready to face.

May 2017

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AROUND THE COMMUNITY By: Ian Hennessey London & Amburn

FAITH & JUSTICE VOLUNTEERS HEAR THE CALL TO SERVE

In early 2013, the Tennessee Access to Justice Commission launched a faith-based initiative called the Tennessee Faith and Justice Alliance (“TFJA”). The goal of the program is to support and encourage faithbased groups in Tennessee who commit to providing legal resources to their congregations and communities. “Faith communities are a natural fit with our efforts to help those in need find access to legal advice,” said Tennessee Supreme Court Justice Cornelia A. Clark at the time. “And with our goal of helping more lawyers find more occasions to provide pro bono services, this is the ideal opportunity for attorneys to put faith in action in their own worship communities.”1

In April 2014, several attorneys and local faith leaders attended the statewide Tennessee Faith and Justice Alliance Summit at Lipscomb University in Nashville. At the conclusion of an inspiring day at the Summit, attendees from across East Tennessee gathered in a breakout session to discuss ways to implement the TFJA in Knoxville and elsewhere. Shortly thereafter, the KBA Board of Governors granted approval to the KBA Access to Justice Committee (“ATJ Committee”) to adopt the project at the local level in partnership with the Tennessee Access to Justice Commission, Legal Aid of East Tennessee, and the University of Tennessee College of Law. In the months that followed, the ATJ Committee charted the course for the local project to include clergy training events and rotating clinics at area faith communities.

Over the past three years, the program in Knoxville has continued to grow and gather more momentum. In 2014, the ATJ Committee,

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the Tennessee Access to Justice Commission and Legal Aid of East Tennessee partnered to host a training event for local clergy and interested laypersons from all faith backgrounds in the Knoxville community. In 2015, we worked with Legal Aid of East Tennessee to bring the latter’s “Saturday Bar” clinic model to the faith-based initiative. Since that time, we have helped to organize and provide volunteers for free legal advice clinics at First Baptist Church, First Apostolic Church, and Colonial Heights United Methodist Church. We have also provided volunteers to an expungement clinic at Rutledge Baptist Church, and immigrant legal advice clinics at Holy Ghost Catholic Church and St. Thomas the Apostle Catholic Church. As of the date this article went to press, there are additional clinics scheduled at Beacon of Hope Ministries/ Vestal United Methodist Church (April 17) and St. Luke’s Episcopal Church (May 13) as well as two remaining open dates through the end of 2017. As a testament to the ATJ Committee’s success at the local level, former KBA president Bill Coley is now the statewide chairman for the Tennessee Faith and Justice Alliance through the Tennessee Access to Justice Commission.

The April 1 clinic at Colonial Heights United Methodist Church was part of the statewide “Help 4 TN Day” initiative. In less than four hours, nearly 25 attorneys and law students assisted 38 clients on matters including family law, employment law, basic estate planning and probate, veterans’ benefits, and more. Despite the breadth of practice areas, several first-time attorney volunteers remarked on how easy it was to handle basic questions or to simply guide the client in the right direction.

On the morning of the event, several clients were waiting at the church doors at least an hour before the event began. One stated, “I took the earliest bus. I didn’t want to miss this!” Here are some of the other things we heard from the people we served and from the Colonial Heights UMC community that hosted the clinic:

“It is a great thing that you all are doing. People need hope.”

“I wish you all would do this every Saturday.”

“Are you coming back to do this again?”

“South Knoxville has a lot of need. Thanks for being here.”

“We served a lot of people here today.”

The KBA was well represented by seventeen volunteers, including

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May 2017

Jason Long, Bill Coley, Kathryn Ellis, Meagan Collver, Jason Collver, Richard Austin, Josh Ball, Keith Stewart, Jonathan Blanchard, John Eldridge, Jonathan Cooper, Kati Goodner, Phebe McLin, Rachel Jensen, Kendra Lewis, and Shawn Ross. KBA’s Tracy Chain was also there to assist the clinic and provide information regarding the Lawyer Referral and Information Service.

The ATJ Committee is always looking for more volunteers for its many projects, including future TFJA clinics. We are also looking for new faith communities throughout our area that would be interested in hosting a TFJA clinic. For more information, please contact Debra House (dhouse@laet.org), Bill Coley (bcoley@hdclaw.com), or Ian Hennessey (ihennessey@londonamburn.com). Barristers can also contact Daniel Ellis (dellis@ellisandellislaw.com) or Kathryn St. Clair Ellis (kellis@laet.org).

1 https://www.tncourts.gov/press/2013/02/05/faith-based-initiative-seeks-align-pro-bonoattorneys-their-worship-communities

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OF LOCAL LORE & LAWYERS By: Joe Jarret University of Tennessee, Department of Political Science

George T. Andrews: Judge, Lawyer, Mentor

Old Gray Cemetery, located in downtown Knoxville, occupies 13 acres of beauty and history. The cemetery was founded in 1850 and dedicated in 1852 when the first 40 lots were sold at public action.

Today Old Gray clearly depicts Knoxville’s history and contains various monuments to many of Knoxville’s luminaries. Among the various ornate statues and monuments is a simple headstone that reads “George Andrews and Mary L. Andrews.” A little research tells us that this humble marker is fitting for the humble man George Andrews was.

Described by one historian as “One of the best lawyers, and one of the best men that ever lived in Tennessee,” George Andrews was born in Putney, Vermont on December 28, 1826. When he was a young man, his family moved to Michigan where George received a formal education, studied and read law, ultimately opening up a law practice in the city of Detroit. In 1856, he married the former Miss Mary Lathrop, and together they moved to Knoxville in 1865 where young George opened a law office. He resided in Knoxville for the remainder of his life.1

During the height of the Civil War, George, like many others in his position, was asked whether he supported the Union or the Confederacy.

An ardent abolitionist, he identified himself as “A man of the Republic.”

When a client attempted to pay him in Confederate currency for legal services rendered, George refused the payment, telling the man: “Sir, the intended and actual effect of Confederate currency was to make every note-holder a stockholder in the Confederacy, and likewise make him directly interested, to the extent of his investment, to secure the ultimate success of the Rebel cause.”2

In 1868, George was appointed by Governor William Gannaway “Parson” Brownlow to a vacancy on the Tennessee Supreme Court bench.

According to historian J. Caldwell, “This office he held for two years, and his opinions prove his thorough competency as a Judge. They rank among the best in our State Reports, and are highly esteemed by the profession and the Courts.”3 After leaving the Bench, George served as the United States District Attorney for East Tennessee, followed by twelve years of private practice with a Knoxville law firm. It was his time as a practicing lawyer for which he was most fondly remembered. Judge Andrews was a man of extraordinary intellect and versatility. As a lawyer he was thorough to the last degree. It was said that he was “so widely and so thoroughly learned in the law, whenever a young lawyer was puzzled, or was at a loss for authority, he did not fail to go to Judge Andrews.

Hardly a day passed wherein an appeal for information was not made to him by some lawyer. He was always ready to help, and would stop in the midst of the most important work to answer questions or produce authorities.”4

Andrews was likewise exceedingly generous with his time when it came to permitting aspiring lawyers to “read the law” with him. One such young lawyer, who was the focus of a previous DICTA column, was Knoxville’s first African American lawyer, William Francis Yardley.

During this period in Tennessee law, in order to obtain a license to practice, the aspiring lawyer was required to “Read law” (study with a licensed attorney) for one year; be 21 years of age; demonstrate that the applicant “is in good standing, reputation, of age, and a good citizen.”

Once licensed, the attorney was permitted to “practice before any justice of the peace and before the county court of his county.” No Bar exam was required.5

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Sadly, Judge Andrews became equally well-known in death as in life.

His death occurred on August 22, 1889, in what became known as “The Flat Gap Horror,” a horrific train wreck on the Knoxville, Cumberland Gap & Louisville Railroad line. This disaster claimed “so many valuable and prominent citizens of Knoxville who lost their lives on that fateful day.”6 A new rail road spur line had been recently laid that would go into the new town of Middlesboro, Kentucky, and thus provide a more direct route to Louisville. Several gentlemen from Knoxville were invited to make the inaugural trip in rail road cars specially designed and provided for the occasion. Judge Andrews was included in the invitation. “A large number of ladies were present to see the new cars and bid their gentlemen farewell when the train pulled out for the day’s journey.

Less than two hours and 23 miles out of Knoxville, the excursion party reached the high trestle that spanned Big Flat Creek in Grainger County.

While the engine and the first car ran onto the bridge, the rear coach – carrying most of the passengers – suddenly detached, turned over, and plunged 20 feet into the narrow creek, landing bottom side up. Only one passenger in the car – F. W. Vaughn – escaped serious injury.”7

One unknown admirer had this to say upon learning of Judge Andrew’s death: “In his practice, he upheld the highest standards of the profession. He resorted to nothing but honest effort, and any unprofessional conduct excited his indignation. It need not be said that he exerted a salutary influence upon the bar of East Tennessee. He exemplified in his professional life everything that the highest standards of the profession demands of its members.”

1 Caldwell, Joshua W (2015) Sketches of the Bench and Bar of Tennessee, Forgotten Books.

2 Ranney, J. A. (2006). In the wake of slavery: Civil war, civil rights, and the reconstruction of Southern law. Greenwood Publishing Group.

3 Caldwell, Joshua W (2015) Sketches of the Bench and Bar of Tennessee, Forgotten Books.

4 Id. 5 A History of Tennessee and Tennesseans: The Leaders and Representative Men in Commerce, Industry and Modern Activities, Volume 8 6 http://genealogytrails.com/tenn/knox/bioAndrews.html 7 The Knoxville Journal Newspaper, August 22, 1889.

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BENCH AND BAR IN THE NEWS

This “members only” column is published each month to share news and information among KBA members. Submissions should be limited to 75 words and will be edited for space and other considerations. Email submissions to mwatson@knoxbar.org by the 10th of each month.

NEED GUIDANCE IN A SPECIFIC PRACTICE AREA? One of the best kept secrets of the Knoxville Bar Association is our Mentor for the Moment program. We want to let the secret out and make sure that our members use this wonderful resource. It’s really simple to ask a question of our helpful volunteer mentors. Log in to the members’ only section of www.knoxbar. org or check out the list in the KBA Attorneys’ Directory and begin your search! Our easy-touse website allows you to search by last name or by subject area experience.

PARALEGAL ASSOCIATION MEETING The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, May 11, 2017, at 12:00 pm. in the Blount Mansion Visitors Center, Knoxville, Tennessee. Attorney Donald J. Farinato of Hodges, Doughty & Carson, PLLC will be presenting a one-hour program on Facebook and Twitter and Death and Incapacity: Planning for Digital Assets.

A lunch buffet is available at the cost of $12/ person with reservations. Please contact Kati Wheatley, ACP at president@smparalegal.org or (865) 546-7190 for additional information and/ or lunch reservations.

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Corner of Westland Drive and Pellissippi Parkway. Former legal office. Excellent condition. 3,456 Sq.Ft. Highly visible with easy access to interchange. Phone system installed. Lease or Purchase opportunity available. For further information, contact Oliver Smith Realty (865) 584-2000.

A perfect office space available with signage on Peters Road. The office has just been renovated and ready for new occupants.

Space offers room for two private offices and reception area and other area for a work station. The location is visible from Kingston Pike and would make a great office for an accountant, insurance agent, attorney or mortgage broker, engineering firm or anyone who would like high visibility. Offers a carport for your parking along with a paved parking lot. Carport also has a storage closet. Rent: $900.00 per month. Contact Karen Emmert at 356-5049.

Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 2,000 sq ft.

Present floor plan accommodates four offices plus a conference room and a reception area. Would consider dividing space. One Level. Offices on either side occupied by long-term law firms. Two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.

WELCOME NEW MEMBERS THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS:

Christopher M. Caldwell Pratt Aycock, PLLC Ashley Evans

Michael H. Hickey Benjamin P. Lemly, Greg Coleman Law PC Ariana E Mansolino Law Office of James W. Friauf, PLLC Abigail G Patterson AESSEAL, Inc.

Cecilia S. Petersen William Holt Smith Law Office of W. Holt Smith

New Law Student Members Nick Allen Dacey Cockrill Derrick Davis Kaitlyn M. Filzer

OFFICE SPACE AVAILABLE:

Brennan M Foy

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Furnished office space available in West Knoxville. Convenient to I-40 and Downtown. Quiet atmosphere perfect for sole practitioner or mediator. Contact Dana Holloway at Holloway Law & Mediation Center. (865) 719-1644 or (865) 643-8725

Robert Leonard Aaron E Pannell Evan S Rothey Kayla R Sewell Lauren Sherwood

Office space for sub-lease at 618 S Gay St, Suite 100. High visibility with full window on Gay St. Wi-fi available at no additional cost. Private office, 11’ x 10’ with large private conference room available. Great for sole practitioner or satellite office.

Summers Ashton Smith Derek A Terry

Rent $500 per month for office space only.

Additional $250 per month for any signs or advertising placed in window. Contact Arning Insurance Agency at 865-637-1403.

May 2017

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

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

WHAT’S YOUR PASSION? World travel and good food? Wine? Chocolate? Women’s rights and empowerment? Pre-Revolutionary France? Better efficiency?

Collaboration and communication in the work place? The tax code?

Everyone has a passion, but not everyone has found theirs yet.

Some attorneys are lucky that their passions intersect with their work.

Christina MagransTillery, who represents tenants “I’ll never forget when for LAET, got involved because of her background as a police and my landlord DV survivor. She almost lost told me there was nothing her apartment, and she says, they could do to help me.”

“I’ll never forget when police and my landlord told me there was nothing they could do to help me.” She wanted to help change things and now, she feels a renewal of her faith in LAET’s work every time she is able to help a client protect her housing after experiencing abuse.

I grew up in a community where friendships crossed racial, gender, economic, religious, and political lines. Although I took a long academic path to get to law school, focusing on equal rights and on equal treatment under the law was central to my studies. My passions, however, also included teaching and mentoring others. As an LAET attorney, I am able to represent clients who need equal access to the court, while also passing on to other attorneys and law students the importance of finding a way to use your passion to improve Access to Justice.

Luckily for LAET, many of the attorneys who work with us through the Pro Bono Project are also passionate about helping people.

One member of the KBA who volunteers both at LAET clinics and to take individual Pro Bono cases said that he believes he is incredibly privileged to be an American attorney both in terms of wealth and in terms of access to the legal system. He says that he has been aware of this since the beginning of his career, but has “become “Through taking on pro bono increasingly convicted cases or just guiding people at that this law license the occasional clinic, I feel like I - this privilege and am responding to what I already access - is not entirely [his] own.” He admits should be doing - and what I that handling such should be doing more.” cases often makes him feel like a fish out of water, but says, “through taking on pro bono/reduced fee cases or just listening to/ guiding people at the occasional clinic, I feel like I am responding to what I already should be doing - and what I should be doing more.”

Whatever your passion is, there is undoubtedly a way for you to combine your passion with service to the community through Pro Bono

Mark Your Calendars: • May 2 (5:30) – Open House at LAET’s New Building – Join Us for Barbeque and Beverages Served by Local Judges (607 W. Summit Hill Drive) • May 10 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO • May 13 (9:00-1:00) – LAET and Tennessee Faith & Justice Alliance Clinic at St. Luke’s Episcopal Church (600 S. Chestnut Street) • May 20 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County office ____________________________________ • June 3 (9:00-12:00) – Knox County Saturday Bar at LAET’s Knoxville office (607 W. Summit Hill Drive) • June 14 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO • June 17 (9:00-12:00) – Blount County Saturday Bar at LATE’s Blount County office

work. Particularly through the wide variety of clinics LAET now holds.

Whether your passion is helping veterans, helping others improve their lives by having their criminal records expunged, or your passion is tied to your faith, LAET can find a way for you to help.

And, if you have an idea of how you could apply your passion through a clinic that doesn’t already exist, I would love to hear your ideas!

The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902

phone (865) 637-0484 e-mail:kellis@laet.org fax (865) 525-1162

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DICTA

May 2017

Q: A:

THE LAST WORD By:

Jack H. (Nick) McCall

Please share with DICTA’s readers how you came to create the Julia Barbara Foundation, dedicated in your daughter Julia’s memory to the fight against diffuse intrinsic pontine glioma, or “DIPG,” in children.

ELIZABETH PSAR lawyer and Executive Director of the Julia Barbara Foundation

I remember that Thanksgiving of 2015 was perfect as I enjoyed a much-needed vacation at the beach with my family. Like most of us I worked long hours, so my time with my children was limited and precious. I watched my three-year-old son and my two-year-old daughter play in the water and sand. The sun shined as my sweet children smiled and giggled with joy in the warm rays. Waves lapped over our beach balls, shovels, and palls. As I made a sandcastle with my sweet daughter, I thought that I should slow down my solo practice and take more vacations. At the time, I didn’t know that it would be the last sandcastle that I ever made with my little princess.

My name is Elizabeth Psar. I am a Knox County Attorney and the Executive Director of the Julia Barbara Foundation. In December of 2015 my daughter, Julia Barbara, was diagnosed with a brain stem tumor (DIPG). After five months of debilitating medical treatments Julia passed away.

She died on May 17, 2016, a month before her third birthday. Notably, May 17, 2016, was the first DIPG Awareness Day in Maryland and Pennsylvania.

In September of 2016, the Centers for Disease Control announced that brain tumors have become the leading cause of childhood cancer death, surpassing leukemia. DIPG (diffuse intrinsic pontine glioma) is the second most common malignant brain tumor found in children and is the leading cause of childhood death due to brain tumors. DIPG essentially has a zero percent survival rate, and an average life expectancy of nine months after diagnosis. Almost every day, a child battling DIPG dies and another child is given no chance of survival. This does not include the children that were not diagnosed prior to passing away.

At the time of Julia’s diagnosis, it never occurred to us that she suffered from a brain tumor. During a Christmas party, my husband and I noticed that Julia could not climb the slide ladder without falling. A few weeks before she had been running circles in the playground. So, on December 14, 2015, we took Julia to the pediatrician with a mistaken belief that she suffered from an inner ear infection. A day later, we were told that our sweet, strong, smart and pretty daughter would ultimately die from a brain stem tumor. To have just a few more months with Julia, she underwent radiation treatment and took an experimental drug with chemo therapy at St Jude. Julia also took steroids which dramatically altered her quality of life; she no longer smiled.

To save the lives of children and to raise awareness we established the Julia Barbara Foundation, a non-profit. One of our goals is to cure DIPG, if we can stop one of the fastest growing brain tumors then it is likely we can cure less evasive brain tumors in children. In a modern-day society, an almost zero percent chance of survival is unthinkable. All our funding is given to DIPG research programs so that, in the future, children will not suffer debilitating pain and families will no longer watch their children slowly die a horrible death.

Our second goal, but equally as important, is to provide families with knowledge regarding brain tumors in children. If we provide the community with greater awareness, families will know to seek medical treatment when their children begin to exhibit brain tumor symptoms. In the short amount of time since the establishment of the Julia Barbara Foundation, parents have told me that their children died in their sleep, and at the time they didn’t know what killed their beloved children. It wasn’t until the autopsy reports returned that they found out their children died from operable brain tumors.

This is not acceptable. By bringing attention to one of the deadliest types of pediatric brain tumors, we can provide families with greater knowledge and the power to help their children.

Senator Doug Overbey and Rep. Jason Zachary have graciously joined our fight against brain stem tumors. Due to the diligent efforts of Senator Overbey and Rep. Zachary, May 17, 2017, will be the first DIPG Awareness Day in Tennessee. I had the pleasure of being on the Senate floor when the matter was unanimously passed. The graciousness of the Senators was overwhelming, and it gave me a greater motivation to continue the pursuit of DIPG awareness. Maryland, Pennsylvania, Ohio and Louisiana will also recognize May 17, 2017, as DIPG Awareness Day, and May is Brain Tumor Awareness Month.

Additionally, through the efforts of many DIPG families, there is a Resolution (H. Res. 69) before Congress to make May 17th National DIPG Awareness Day. The National DIPG Awareness Resolution was introduced on January 30th to the Energy and Commerce Committee. During the last week of April we are traveling to Washington to meet with various U.S. Congressmen.

How can you help? You can contact your U.S. Representative and ask them to support H. Res. 69. You can join our party! On May 20th at 7:00 p.m. we are celebrating the lives of all DIPG children. The Chillbillies with Knox County Juvenile Judge Timothy Irwin are providing the entertainment for the Gala Celebrating the Lives of DIPG Children at the Women’s Basketball Hall of Fame. Tickets are $60.00 which includes food and beverages and all proceeds go to DIPG research. More Gala information is available on JuliaBarbaraDIPG.org or eventbrite.com. Further, you can like and follow us on Facebook: Julia Barbara Foundation and Instagram. Any additional ideas to spread awareness are always greatly appreciated.

Please take my advice and enjoy the ones you love. As attorneys, we often work too hard and our personal lives suffer. There is a happy medium, and life can sometimes be so very short.

“The Last Word” column is coordinated by KBA Member Nick McCall. If you have an idea for a future column, please contact Nick at nick.mccall@gmail.com.

May 2017

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