Management Counsel: Law Practice 101: The Impact of COVID-19 on Law Firm Operations . . . Page 15 Attorney Profile: Van D. Turner, Jr: A Leader Who Removes Obstacles and Finds Innovative Solutions . . . Page 23
A Monthly Publication of the Knoxville Bar Association | September 2020
A NECESSARY AND UNDISGUISABLE ROLE LGBTQ DISCRIMINATION AS SEX DISCRIMINATION
KNOXVILLE BARRISTERS & KNOXVILLE BAR ASSOCIATION
2020 Lawyers Link Up
Charity
G LF Tournament
Law Firm sponsorship opportunities available!
The safety of our members and guests is our top priority. Holston Hills has put protocols in place to address the recommendations made by the CDC. Due to gathering restrictions, we are not planning to have a closing reception, but the winners will be recognized at the end of the tournament.
MONDAY, OCTOBER 26 HOLSTON HILLS COUNTRY CLUB ATTORNEY REGISTRATION: $125 ATTORNEYS LICENSED SINCE 2016: $100 LAW STUDENTS: $100
REGISTRATION OPTIONS: Register online @ www.knoxbar.org/events! OR CALL: (865) 522-6522 WWW.KNOXBAR.ORG
TOURNAMENT PROCEEDS SUPPORT THE CHARITABLE EFFORTS OF THE BARRISTERS HUNGER & POVERTY RELIEF COMMITTEE
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DICTA
September 2020
In This Issue
Officers of the Knoxville Bar Association
September 2020
COVER STORY 16
“A Necessary and Undisguisable Role”: LGBTQ Discrimination As Sex Discrimination
CRITICAL FOCUS President Hanson R. Tipton
President Elect Cheryl G. Rice
Treasurer Jason H. Long
Secretary Loretta G. Cravens
KBA Board of Governors Sherri DeCosta Alley Jamie Ballinger Mark A. Castleberry Hon. Kristi Davis
Elizabeth B. Ford Rachel P. Hurt Allison Jackson Elizabeth (Betsy) Meadows Robert E. Pryor, Jr.
Immediate Past President Wynne du Mariau Caffey-Knight
Michael J. Stanuszek Amanda Tonkin Elizabeth M. Towe Mikel Towe
The Knoxville Bar Association Staff
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President’s Message
A Movement, Not a Moment
Goodbye
Tennessee Powers of Attorney: Critical Instruments for Critical Times
The Supreme Court Extends the “ministerial exception” to lay teachers at private religious schools in Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020
ABA Ethics Opinion Analyzes Rule 8.4(g) Prohibiting the Expression of Bias or Prejudice in Connection with the Practice of Law)
The Impact of COVID-19 on Law Firm Operations
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Around the Bar Practice Tips Legal Update
Schooled in Ethics
Management Counsel: Law Practice 101
WISDOM Marsha S. Watson Executive Director
Tammy Sharpe CLE & Sections Coordinator
Jonathan Guess Database Administrator
Elisabeth Martin Programs Administrator
Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org Tracy Chain LRIS Administrator
Rebecca Eshbaugh LRIS Assistant
Dicta
All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Watson (522-6522).
Dicta is the official publication of the Knoxville Bar Association
Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Sarah Booher Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho
Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Elizabeth Towe
Managing Editor Marsha Watson KBA Executive Director
DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. September 2020
DICTA
Judicial Profile
The Honorable Kristi M. Davis – Tennessee Court of Appeals
Campbell Cox
Summer BBQ in the Lost Year
Loving Our Latin Legal Locutions
How to Be Good
More On The Punitive Damages Front
Van D. Turner, Jr: A Leader Who Removes Obstacles and Finds Innovative Solutions
Apple Magic Keyboard for iPad Pro: Honeycrisp Sweet ... or Sour Apple?
The East Tennessee Veterans Memorial: A Pictorial History of the Names on the Wall
You Know it’s All About the Masks, ‘Bout the Masks . . .
Appreciation
A September to Remember
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19 21 23
Volume 48, Issue 6
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.
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24 25 26 27 29
Hello My Name Is Passing By
Grammar Grinch
The Noblest Profession Legal Mythbreakers Attorney Profile
Bill & Phil Gadget of the Month Well Read
Your Monthly Constitutional Time Out
Long Winded
COMMON GROUND 4 20 22 22 28 31
Section Notices/Event Calendar Barrister Bullets Change of Addresses Welcome New Members Bench & Bar in the News Last Word
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SECTION NOTICES & EVENT CALENDAR
Section Notices There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 522-6522. Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. If you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777) or Daryl Fansler (546-8030). Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. If you have a program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Marcia Kilby (362-1391) 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. The section plans regular CLE throughout the year. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) 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. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) and Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Lawyers Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Hon. Suzanne Bauknight (545-4284) or Ron Mills (215-2050). Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2018 will automatically be opted-in to the section. If you would like to get involved in planning Section activities, please contact Section Chairs Courtney Walker (292-2307) or Chuck Sharrett (637-0203). Senior Section The KBA Senior Section generally meets quarterly for lunch. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307) Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963), Mary Miller (934-4000) or Tim Grandchamp (524-1873).
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event calendar September
1 8 8 9 9 9 9 10 11 15 16 17 23 n 25 n 29 n n n n n n n n n n n n n
Law Office Tech Committee Professionalism Committee Access to Justice Committee Veteran’s Legal Advice Clinic 2020 Volunteers: A Football Preview Diversity in the Profession Committee Barristers Meeting Judicial Committee The Resilient Lawyer CLE Cybersecurity Working from Home CLE Board of Governors Show Me the Money 2020 CLE Gov’t Lawyers Section CLE on Election Law KBA Flu Shot Clinic w/ Mac’s Pharmacy CLE Committee Meeting
October
n1 n 5 n6 n8 n8 n 13 n 14 n 14 n 14 n 17 n 21 n 26
Diversity & Inclusion: Removing Obstacles CLE ADR Section CLE Law Office Tech Committee Employment Law Update CLE Judicial Committee Professionalism Committee Veteran’s Legal Advice Clinic Diversity in the Profession Committee Barristers Meeting Annual Fall Hike Board of Governors Lawyers Link Up Charity Golf Tournament
Check the KBA Events Calendar at www.knoxbar.org for scheduling updates. September 2020
PRESIDENT’S MESSAGE By: Hanson R. Tipton Watson, Roach, Batson & Lauderback, P.L.C.
A MOVEMENT, NOT A MOMENT I wrote my most recent President’s Column, for the June issue of DICTA, in early May. Even in “normal” years we do not publish a July issue and this year we also did not publish an August issue as one of our efforts to streamline the KBA budget in a year when we have been forced by the COVID-19 pandemic to make many tough decisions. It now feels like years ago that I wrote that column about the isolation of sheltering at home and the KBA’s efforts to keep us together virtually if not physically. On May 25, members of the Minneapolis Police Department killed George Floyd, sparking nationwide protests and demonstrations for racial justice and equality the likes of which our country had not been seen on such a scale since the late 1960’s. This is not a new conversation, but the shocking images of Mr. Floyd’s death caught on cell phone video, in the wake of the similar tragedies of Breonna Taylor and Ahmaud Arbery, resonated with viewers of all races in a way that forced us to confront realities about our country now and its history that are difficult for many to accept. The scenes we saw from Minneapolis and cities across the country prompted a new version of an old conversation about the continuing problem of racism in America. On June 2, I sent an e-mail to all KBA members asking you to come together as a legal community, to have meaningful discussions to identify and take steps towards achieving true societal inclusion and cultural competence. I invited you to let me know ways that the KBA can better serve its members in addressing issues of diversity and inclusion. The response I received was tremendous. Many members reached out with thoughtful and excellent ideas for the KBA, and our Diversity in the Profession Committee has discussed all of them and has already put some into action. I also received some challenging e-mails that forced me to re-assess where we are as a bar association and as a legal community. Society in general and local bar associations specifically have made progress in the area of civil rights over the years, but we still have a long way to go. I appreciate those of you who have participated in this conversation and encourage everyone to keep it going. Paraphrasing Lin-Manuel Miranda’s Alexander Hamilton, “This is not a moment, it’s a movement.” One way I have personally committed to considering and educating myself about these issues has been participation in two separate racial equity and social justice challenges, one published by our local chapter of the YWCA and the other by the American Bar Association. Both of these challenges have offered a wide variety of resources for reading, listening, and watching. The material has been heartbreaking at times and uplifting at times, but always enlightening for me. I was happy that over 80 KBA members signed up to participate in the ABA challenge together on the same schedule. If you missed out, the challenge is still available at https://www.knoxbar.org/index.cfm?pg=RacialEquityChallenge. An initiative of the Diversity in the Profession Committee that you will soon see in the pages of DICTA is a recurring column called “What I learned about race and why it matters.” We will be speaking to KBA members from various practice settings and backgrounds about their experiences with racial diversity and inclusion in our own legal community. We will be asking these attorneys what they have learned about diversity and inclusion and why it matters. Look for this recurring September 2020
column in these pages beginning next month. One of my favorite events of every bar year is the Diversity & Inclusion CLE and Reception. We have had some amazing and inspiring speakers at this event over the years, and I am very excited to invite a good friend and law school classmate of mine, Van D. Turner, Jr., to speak at this year’s event. Van is the President and CEO of Memphis Greenspace, Inc., the nonprofit organization that lawfully removed two confederate monuments from public parks in Memphis, Tennessee. In this year’s CLE program, “Removing Obstacles,” Van will discuss removing obstacles to diversity and inclusion for the future of our country, our communities, and our personal growth. Be sure to read Angelia Nystrom’s profile on Van in this issue of DICTA to learn more about his inspirational story. While the Diversity & Inclusion CLE and Reception itself is always a highlight for me, my favorite part of the event every year is the Buddy Match program, which pairs local attorneys with law students for the purpose of networking before and during the reception. I have made some very good friends through the Buddy Match program over the years, and it is one of my favorite ways to “give back” and share my experiences with some special people who are at the beginning of their legal careers. This year’s event (including the Buddy Match portion) will be forced to make some adjustments due to COVID-19, so stay tuned through www.knoxbar.org for updates on how to participate. I urge every KBA member to take part in this year’s event. The issues we discuss are important every year, but I want all of us to take advantage of the opportunity the events of this year have given us to make meaningful change in society and our legal community. Help us make sure that this is not a moment, but a movement. As the weather cools and summer turns to fall, here are some more items of interest in the near future: - Join KBA Member and Vol Network analyst Tim Priest for a special preview of the 2020 Volunteers football season in a live Zoom webinar on Wednesday, September 9, 2020, from 12-1 p.m. I will moderate questions submitted by members during the program. Members will need to RSVP through our secure member database to register and registration will be cut off at 11 a.m. on Wednesday, September 9.
DICTA
- The KBA Flu Shot Clinic sponsored by Mac’s Pharmacy will be Friday, September 25, 2020, from 9am to 3pm in the Large Assembly Room in the City-County Building. No appointment is necessary but members are asked to RSVP for planning purposes. Go to www.knoxbar.org for more details and to RSVP. - Finally, by the time you are reading this column, the Knoxville Bar Association will have just celebrated a very special milestone. 30 years ago, on September 1, 1990, our amazing Executive Director Marsha Watson began her KBA career. Please be sure to wish Marsha a happy KBA anniversary. Here’s to the next 30 years, Marsha!
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AROUND THE BAR By: Troy Weston
GOODBYE On August 24, I will celebrate 20 years being a Knoxvillian, and that makes me one of y’all. Even if you ignore longevity, Knoxville is my home; it is where I grew--sometimes painfully--into adulthood. But now, I am embarking on a career representing my country as a diplomat. That job will take me around the world, and my home will change every two years. For me, that is an exciting prospect; spending my future in places like Kinshasa or Harare or Manama learning the language and culture and representing the United States’ foreign policy is a dream bigger than I thought was possible. My first stop is Ciudad Juárez, where I will be a consular officer working in our consulate. I am excited to try my hand at being a Juarense, but starting this next chapter during a pandemic has taken me down a road of (sometimes selfindulgent) reflection. Please join me.
Census Bureau estimates that about 17% of Tennessee’s population was African-American in 2019. In terms of gender, 64% of the KBA identifies as male. Meanwhile, census estimates place the male population at 48.8% of our state’s population. These numbers are not encouraging, but even they do not take into account the number of attorney members who are in senior or management roles within law offices. Once we reach those waters, the evidence is more anecdotal, but it is extremely reasonable to say that total diversity does not increase in the more senior ranks in our city. We as a bar association are not doing enough to recruit, include, and promote diverse lawyers. In response to that statement, I have often heard that diverse candidates are not putting themselves forward for consideration. The truth, though, is that if you are consistently not receiving applications from people of color, women, or LGBTQ+ applicants, that says more about your recruitment tools and the people in your milieu than anything. If you are not recruiting diverse applicants, try spending time at events like the KBA’s annual diversity mixer, or spend some time at one of our law schools presenting to groups like the Black Law Student Association or Lambda Law Society. Think about getting involved with organizations like the Knoxville Area Urban League where diverse lawyers and law students often volunteer. Do something to get out of the office and community you know. Expand your own horizons, and you will meet the diverse talent that is out there.
During the time I was a practicing lawyer, I didn’t do enough to promote diversity in the profession in Knoxville. Odds are, you haven’t either. I know that is a little incendiary, but that is sort of the point. By way of background, when I came to Knoxville in the summer of 2001, I didn’t know a lawyer; I wouldn’t interact with a practicing lawyer until I was in law school. For much of the early part of my career, I struggled with the feeling that I was at a disadvantage because I was less familiar with the profession than my peers, many of whom were part of a tradition of lawyers in their family. Looking back, that was silly. The truth is that I am a cis-gender white male, and that meant (and still means) unearned advantages. Even if my father and grandfather didn’t precede me in the practice, I gained entry to and participated in a system that was written to favor me. In fact, most of this bar association looks an awful lot like me. I enjoyed collegial and professional interactions without ever wondering if all the gentility and manners were just veneers covering something more sinister and exclusionary. My colleagues from diverse backgrounds have shared stories with me about unequal and discriminatory treatment at the hands of their clients, their colleagues, members of the judiciary--really, every player in our system of justice. I don’t have comparable experiences. The problem is that the bar association is not diverse, and the majority often chooses to ignore the story of anyone who doesn’t look like that majority. In 2019, the KBA boasted 1,629 members--approximately 82% of the attorneys in Knox County, and approximately 84% of those members reported their racial and ethnic background. Of those who reported-the vast majority of our members--2% were African American (I am rounding up), while 96% were white. For comparison, the United States
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Even though I am not a second, third, or fourth generation lawyer in my family, I have never been the outsider overcoming adversity, and thinking any differently is ignorant. I will never fully understand the experience diverse lawyers face in this profession, but that does not mean I can’t do something to make that experience better. It is 50 years past time for us white men to acknowledge the privilege we have, and we must use our position--in this case, dramatically disproportionate representation in the bar--to amplify diverse voices and clear a seat at the table (or several) for people who can enrich our profession and our lives. Talent in 2020 prioritizes diversity; talent in 2020 is diversity. If Knoxville doesn’t embrace this--and, to date, it hasn’t--we will continue to lose bright, capable lawyers to communities that do. We will be on the wrong side of history, and our legal community will be worse for it. I didn’t do anywhere near enough to advance the mission of diversity during my time in the practice of law, but my journey isn’t over. One day, I hope the friends I have made in this association are joined by diverse faces of talented lawyers that can truly reflect the concept of equality on which our laws are so focused.
DICTA
September 2020
JUDICIAL PROFILE By: David M. Eldridge Eldridge & Blakney, P.C.
THE HONORABLE KRISTI M. DAVIS – TENNESSEE COURT OF APPEALS Had the Air Force been definitive in what her duties would be in the Judge Advocate General’s ( JAG) Corps, Kristi Davis may have been a prosecutor or criminal defense lawyer instead of our newest Court of Appeals Judge. When she graduated from law school, Judge Davis had a real interest in criminal law and had been accepted in the Air Force JAG. Because the Air Force would not commit to assigning her in the criminal law field, she declined their offer. Kristi Davis was sworn in on August 3 to fill the vacancy left on the Court of Appeals by Judge Susano’s retirement. Like everything now, her path to taking this position was complicated by the pandemic. Governor Lee announced her appointment on May 28 and under normal circumstances, the General Assembly would have 60 days to confirm or reject that appointment. However, the legislature was in recess for over two months in the spring and once it came back in session, a vote to confirm Judge Davis would have required her to appear on August ballot for a retention vote. By then, many ballots had already been mailed and it would have cost $700,000 to send out a ballot with just her name. Accordingly, the legislators elected to forego a confirmation vote and she was deemed to be confirmed because they took no action within 60 days of her appointment. The Senate Judiciary committee did hold a hearing via video to introduce her and allow questions. She was introduced by the Governor’s Chief Counsel Lang Wiseman and was warmly received by the members of the Judiciary Committee. Judge Davis is a lifelong Knoxvillian, growing up in the Karns community. She attended the University of Tennessee majoring in broadcasting and minoring in political science. Her interest at that time was television news. Her political science minor put her in a political science class where she met her future husband Chris Davis, who is now the Knox County Administrator of Elections. After graduation, she made the decision that a career in broadcasting was not for her and she headed to law school at the University of Tennessee College of Law where she excelled. She joined the Law Review and the National Evidence Moot Court Team. She was recognized with awards for both oral advocacy and excellence in brief writing. She finished her law school career graduating magna cum laude in the top 15% of her class. She began her path to the appellate bench after law school working for an appellate judge: she spent two years as a judicial clerk for Judge Joseph M. Tipton on the Tennessee Court of Criminal Appeals. When Judge Davis was profiled by Lisa Hall, after being elected to the Circuit bench in 2014, Judge Tipton described Judge Davis as the best law clerk he has ever had. Following her tenure with Judge Tipton, she joined the firm of Hodges, Doughty & Carson and tried a wide variety of cases. Research and writing is her true passion though and she was tapped by the firm to do a lot of writing which of course included a great deal of appellate work for the clients of that firm. She became a member of the firm in 2007 and for three years was its sole female member. September 2020
When a Circuit Court vacancy opened up when Judge Wheeler Rosenbalm retired, she believed she would enjoy the job of being a Judge and pursued it. She applied and made it to the final three in the judicial selection process but didn’t get the nod from the Governor’s office at that time. That did not end her interest in the bench though. When Judge Dale Workman retired in 2014, Judge Davis made the gutsy decision to run in a contested election for the seat. Her opponents were both lawyers with deep roots in local Republican politics. She was undaunted and took
on the task of running a county wide race. She describes the experience as incredibly time consuming and stressful as she juggled the demands of a full-time law practice with the campaign trail. She noted that her clients were supportive but understandably wanted her to work on their cases. She was also the mother of two young children. The campaign continued for four to five difficult months. In the end, she prevailed, winning the Republican primary, which decided the election. The result was of course rewarding for her but she counts all the many people she met while campaigning that she never would have met otherwise as another wonderful aspect of the campaign experience. Through her experience with Judge Tipton, Judge Davis knows first-hand what the pace of the appellate world is like and told me she understands well that it is essential to enjoy the research and writing process. She says she likes the “contained universe of the appellate world” that consists solely of the record and the briefs. Life outside the judicial world for Judge Davis and her husband Chris is centered on their two children, Reid and Holly, who are students at Catholic High School. Reid is a senior and plays on the lacrosse team, and Holly is a freshman and plays on the volleyball team. The Davis parents spend a great deal of time watching their children do what they enjoy – play sports. The family has been taking in rescue dogs for years and their two current dogs are from the small breed rescue, a chihuahua and a chihuahua terrier mix. Getting a chance to learn more about Judge Davis and talk to her makes it clear to me that she is where she needs to be as a Judge on the Court of Appeals and that she is also where the citizens of our state need her to be.
DICTA
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HELLO... MY NAME IS By: Jennifer Franklyn Leitner Williams Dooley Napolitan
CAMPBELL COX This month’s column features KBA member Campbell Cox. Campbell is a 2019 graduate of the University of Tennessee College of Law and is an Associate Attorney at Trammell, Adkins & Ward, P.C., where he practices primarily civil litigation and insurance defense and coverage. Possessing many unique talents, Campbell has energetically engaged with the KBA by authoring “Well Read” columns in DICTA and is also active in the TBA, the Defense Research Institute (DRI), and the Tennessee Defense Lawyers Association (TDLA). What was your first job, and what did you learn from it? My first job was an I.T. Technician at the Wofford College I.T. Department throughout my four years of undergrad at Wofford. (Home of the Boston Terriers, go T-dogs!) The job gave me the skills to always be the #1 backup I.T. guy at Trammell Akins & Ward, but it also provided me with the opportunity to learn how to explain difficult and complicated technical concepts to professors and faculty who I worked with. This translated well to explaining complicated legal concepts to clients in a way that is understandable. My I.T. work also piqued my interest in legal issues surrounding software licensing and intellectual property litigation.
pharmaceutical drug-rep. He showed me what hard work is, and what hard work can accomplish. Where are you from? My family of Florida Gator fans - don’t worry, I converted - always told me I was the best thing to ever come out of Tallahassee, Florida. While I was born in Tallahassee, we moved around a lot and finally landed in Johnson City after my dad finished med school. Why did you decide to go to law school? I really hate math, but I have always enjoyed writing and public speaking. When I was staring down college graduation with a Bachelor’s degree in English standing between me and the real world, I thought back to my grandmother’s advice that I would make a good lawyer. I also recalled that my elementary school teachers frequently reminded me I was good at arguing (for some reason!). I sent off my application to the University of Tennessee College of Law, and the rest is history. What do you enjoy doing in your spare time? When I get the chance, I really enjoy acting. I’ve acted with the Oak Ridge Playhouse, the Investigation Discovery Channel, Oxygen, TLC, and Netflix. When I started law school in Knoxville, I was surprised and pleased to find out that Knoxville is one of the best secret acting hubs of the Southeast.
Describe a person who has had a significant impact on your life. My dad is a physician in East Tennessee. He decided to go to med school at the ripe age of 40 after having had a career in the Navy and as a
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DICTA
September 2020
PRACTICE TIPS By: Haleigh Chastain-Bernstein Bernstein, Stair & McAdams, LLP
TENNESSEE POWERS OF ATTORNEY: CRITICAL INSTRUMENTS FOR CRITICAL TIMES The COVID 19 pandemic has changed many aspects of seemingly normal life. Stay at home orders and concerns over vulnerable citizens going forth in their daily lives have brought to the forefront that they may need others to help them regarding financial management, banking, and even medical matters. This has led to an increase in questions regarding what we can do to conduct business for ourselves and relatives without everyone being present. The answer lies in the world of powers of attorney. Tennessee has various powers of attorney, each serving a different purpose while granting various levels of authority to an agent. Prior to having a client execute a power of attorney, it is important to understand the benefits of each type, how each can be used, and the differing execution requirements. There are power of attorney documents granting an individual power to make healthcare decisions or allowing an agent to handle fiscal and legal affairs. A principal can also grant an agent a limited or special purpose power of attorney, only giving them power of attorney to execute affairs on the principal’s behalf for a designated purpose. Durable vs. Nondurable The primary distinction between power of attorney documents is whether the document is durable or nondurable. If a power of attorney document is durable, it will remain valid and effective even if the principal becomes incapacitated or they become unable to make decisions for themselves. If a power of attorney document does not specifically state it is durable, it ends upon incapacitation of the principal. These documents are enforceable upon execution. Many power of attorney documents are referred to as a general power of attorney, requiring the agent to read the language in the document to determine if the principal has included specific language stating the power of attorney is durable.1 Alternatively, some individuals choose to execute a springing power of attorney. If the power of attorney is said to be “springing” it will only be effective upon a medical finding of incapacitation. Limited or Special Power of Attorney Tennessee law also recognizes a limited or special power of attorney. This gives the agent power to act on the principal’s behalf, but only for a limited and designated purpose. This power of attorney expires after a specific task has been completed or at the time stated in the document. An individual may grant power of attorney to multiple individuals by granting several limited powers of attorney. Durable Power of Attorney for Healthcare A healthcare power of attorney is a legal tool granting an agent the power to make health care and end of life decisions on behalf of the person initiating the agreement. These often come into play when an individual suffers an accident and is unable to make a decision. These documents are durable to ensure the agent can timely make medical decisions on the principal’s behalf. Attorneys often encourage clients to have a healthcare power of attorney since any person can suffer a disabling accident at any time. These are effective upon execution, and the agent is to act consistently with the principal’s wishes and directives as to September 2020
health care decisions. The document must specifically state the agent is authorized to make healthcare decisions and has been granted authority to authorize healthcare decision making.2 The agent can use this legal instrument to communicate with doctors and hospital staff. These are not to be confused with a living will, as an agent is granted much broader powers under a durable power of attorney for healthcare. In addition to making medical decisions, the agent has the right to examine medical records and consent to their disclosure, which would be prohibited under HIPPA without a power of attorney.3 General Power of Attorney When granting an agent power under a general power of attorney, the agent is given broad powers to act on the principal’s behalf, making financial, business, real estate, and legal decisions, which would otherwise be the responsibility of the principal.4 Under Tennessee law, a majority opinion is that in order to allow an agent the authority to file for bankruptcy, the document must specifically authorize that authority. Thus, it is vitally important the power of attorney document specifically state the powers awarded to the agent. Legally, an individual can combine powers granted under a general power of attorney with granting an individual healthcare power of attorney with the same document. Execution Requirements Under Tennessee law, a durable general power of attorney may be executed only in the presence of a notary. However, when executing a healthcare power of attorney, there must be two disinterested witnesses present and a notary. If there is a combined power of attorney, granting an individual a general power of attorney as well as healthcare power of attorney, the standard for execution is more rigorous, requiring two disinterested witnesses, along with a notary. Alternatively, in light of the recent global pandemic, the Tennessee Governor has passed Executive Order No. 52 allowing remote notarization and witnessing of documents, the purpose of which is to ensure that those vulnerable to COVID-19 can still execute legal documents.5 The witnesses must engage in a physical signing of the documents; however, this can occur on audio and visual communication where the principal, witnesses and notary can hear and see each other simultaneously. The order is set to expire on August 29, 2020; however, the Governor is likely to extend this order in light of the pandemic. Although many individuals don’t like to think about mental or physical incapacity, properly planning for the worst situations can ensure that family or close friends have authority to act on the principal’s behalf should an incapacitating injury occur.
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Tenn. Code Ann. § 34-6-102. Tenn. Code Ann. § 34-6-201. Tenn. Code Ann. § 34-6-111. See Tenn. Code Ann. § 34-6-109. See Executive Order 52, issued June 29, 2020.
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L E G A L U P DAT E By: Regina Koho Attorney, Tennessee Valley Authority Office of the General Counsel
THE SUPREME COURT EXTENDS THE “MINISTERIAL EXCEPTION” TO LAY TEACHERS AT PRIVATE RELIGIOUS SCHOOLS IN OUR LADY OF GUADALUPE SCHOOL V. MORRISSEY-BERRU, 140 S. CT. 2049 (2020) Introduction As this month’s Feature Article highlights, there were some surprising moments in the U.S. Supreme Court’s most recent term (e.g., the expansion of Title VII protection to LGBTQ employees).1 But the term was also one in which the Court expanded protections afforded to religious institutions, including in the employment setting.2 One of these cases, Our Lady of Guadalupe School v. Morrissey-Berru, addressed whether the so-called “ministerial exception” precluded the assertion of discrimination claims by two lay teachers against their former employers, private Catholic elementary schools.3 This doctrine, first recognized by the Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,4 is a judicially created rule derived from the First Amendment’s Religious Clauses, which stands for the proposition that courts should “stay out of employment disputes involving those holding certain important positions with churches and other religious institutions.”5 In Morrissey-Berru, the Court appears to have expanded the universe of private religious school employees whose employment-related claims will come within the ambit of the “ministerial exception.”6 Background The respondents in the case, Agnes Morrissey-Berru and the late Kristen Biel,7 worked as lay teachers at private Catholic elementary schools in California.8 Morrissey-Berru was initially moved from a full-time to a part-time teaching position, but the school eventually chose not to renew her contract.9 She alleged that “the school had demoted her and had failed to renew her contract so that it could replace her with a younger teacher” in violation of the Age Discrimination in Employment Act.10 Biel’s contract was likewise not renewed by her school, and she claimed that the reason was because “she had requested a leave of absence to obtain treatment for breast cancer” in violation of the Americans with Disabilities Act.11 The schools moved for summary judgment in each of the cases, invoking the “ministerial exception.” Although the lower courts granted the motions,12 the Ninth Circuit reversed in both cases, finding that the facts were not sufficiently similar to those in Hosanna-Tabor because Morrissey-Berru and Biel were not designated as “ministers,” nor did they have the requisite “credentials, training, [and] ministerial background” of the teacher in that case.13 The Court’s Ruling Although acknowledging that Morrissey-Berru and Biel “were not given the title of ‘minister’ and ha[d] less religious training than” the teacher in Hosanna-Tabor, the Court, in a 7-2 decision, nonetheless held “that their cases fall within the same rule that dictated [that] decision.”14 Justice Alito, writing for the majority, criticized the Ninth Circuit’s analysis, which he characterized as treating the circumstances deemed relevant in Hosanna-Tabor “as checklist items to be assessed and weighed
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against each other in every case,” which was “contrary to our admonition that we were not imposing any rigid formula’” and the Court’s instruction “to take all relevant circumstances into account and to determine whether each particular position implicated the fundamental purpose of the exception.”15 The Court emphasized that “[w]hat matters, at bottom, is what an employee does.”16 And the majority determined that, “at bottom,” both Morrissey-Berru and Biel “performed vital religious duties.”17 “Educating and forming students in the Catholic faith lay at the core of the mission of the schools where they taught,” and their work was “evaluated to ensure that they were fulfilling that responsibility.”18 Both teachers were also “obligated to provide instruction about the Catholic faith” and were “expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith” by praying with them, attending Mass with them, “and prepared the children for their participation in other religious activities.”19 The Court concluded that “their core responsibilities” were essentially the same as the teacher in Hosanna-Tabor,20 and thus judicial intervention into the disputes “threaten[ed] the [schools’] independence in a way that the First Amendment does not allow.”21 Justice Sotomayor, joined by Justice Ginsburg, dissented. Justice Sotomayor admonished the majority for vastly expanding a narrow judgemade doctrine when Congress had already “crafted exceptions to protect religious autonomy” in anti-discrimination statutes.22 Justice Sotomayor also criticized the majority for essentially “rewriting” Hosanna-Tabor by invoking one of the concurrence’s ( Justice Alito’s) observation that “‘[w]hat matter[ed]’ was ‘the religious function that [the teacher] performed’ and her ‘functional status’” to guide its analysis.23 She found the majority’s new standard to have “reframed the ministerial exception as broadly as it can,” which resulted in “absolv[ing] religious institutions of any animus completely irrelevant to their religious beliefs or practices and all but forbid[ding] courts to inquire further about whether the employee is in fact a leader of the religion.”24 Conclusion On its face, the majority opinion appears to simply apply Hosanna-Tabor to a largely analogous factual scenario and clarify what is relevant to a court’s analysis in determining whether the “ministerial exception” is implicated. But critics, including the dissent, suggest that the “sweeping result” of the decision is to give religious employers a blank check “to make employment decisions because of a person’s skin color, age, disability, sex, or any other protected trait for reasons having nothing to do with religion.”25 As with many Supreme Court opinions, the true import of this decision will have to await application by the lower courts. But one thing is clear—the decision is indicative of the current Supreme Court’s willingness to be “more broadly supportive of religious rights and organizations.”26
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David G. Savage, Major rulings from Supreme Court in 2020 term on abortion, religion, and Trump taxes, L.A. Times (June 4, 2020, 8:24 AM), https://www.latimes. com/politics/story/2020-06-24/supreme-court-2020-term-major-cases. 2 See Id. 3 140 S. Ct. 2049, 2055 (2020). 4 565 U.S. 171 (2012). 5 Morrissey-Berru, 140 S. Ct. at 2060. 6 Robert Barnes, Supreme Court affirms ‘ministerial exception’ that protects religious organizations from some lawsuits, Washington Post (July 8, 2020, 5:03 PM), https://www.washingtonpost.com/politics/courts_law/supreme-courtaffirms-ministerial-exception-that-protects-religious-organizations-from-somelawsuits/2020/07/08/2075fe7c-c123-11ea-b4f6-cb39cd8940fb_story.html. 7 Biel died while her suit was pending; it was subsequently litigated by her husband as representative of her estate. See Morrissey-Berru, 140 S. Ct. at 2058 n.6. 8 Id. at 2056, 2058. 9 Id. at 2057-58. 10 Id. at 2058. 11 Id. at 2059. 12 Id. at 2058, 2059. 13 Id. at 2058, 2059-60 (alteration in original) (internal quotation marks omitted). 14 Id. at 2055. 15 Id. at 2066-67 (quoting Hosanna-Tabor, 565 U.S. at 190). 16 Id. at 2064. 17 Id. at 2066. 18 Id. 19 Id. 20 Id. 21 Id. at 2069. 22 Morrissey-Berru, 140 S. Ct. at 2072 (Sotomayor, J., dissenting). 23 Id. at 2075 (quoting Hosanna-Tabor, 565 U.S. at 206). 24 Id. at 2076. 25 Id. at 2082; see also Barnes, supra n.7. 26 Barnes, supra n.7. 1
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September 2020
SCHOOLED IN ETHICS By: Judy M. Cornett U.T. College of Law
ABA ETHICS OPINION ANALYZES RULE 8.4(G) PROHIBITING THE EXPRESSION OF BIAS OR PREJUDICE IN CONNECTION WITH THE PRACTICE OF LAW A recent ABA ethic opinion1 offers “guidance on the purpose, scope, and application of Model Rule 8.4(g),” which reads as follows: It is professional misconduct for a lawyer to . . . engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules. Rule 8.4(g) has been rejected by the Tennessee Supreme Court, but our Rules of Professional Conduct contain a similar provision, Comment [3] to Rule 8.4: A lawyer who, in the course of representing a client, knowingly manifests, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation, or socio-economic status violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). Although Rule 8.4(g) is broader than our Comment [3], the ABA’s analysis may well be persuasive to the Tennessee Supreme Court in interpreting Comment [3]. The Rule prohibits “conduct,” including speech, which, by an objectively reasonable standard, harasses or discriminates on the basis of the enumerated categories. The comments clarify that “discrimination” includes “harmful verbal or physical conduct that manifests bias or prejudice towards others.” “Harassment” includes “derogatory or demeaning verbal or physical conduct.” The opinion notes that “a lawyer would clearly violate Rule 8.4(g) by directing a hostile racial, ethnic, or gender-based epithet toward another individual, in circumstances related to the practice of law. . . . Use of a racist or sexist epithet with the intent to disparage an individual or group of individuals demonstrates bias or prejudice.” Rule 8.4(g) also prohibits conduct in the workplace that is not prohibited by Title VII. Comments to the Rule define “sexual harassment” as “unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature,” and these need not rise to the level of a hostile work environment. Therefore, “a single instance of a lawyer making a derogatory sexual comment directed towards another individual in connection with the practice of
law would likely not be severe or pervasive enough to violate Title VII, but would violate Rule 8.4(g).” The purpose of the Rule is to “maintain[] the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.” Because lawyers are “public citizens” as well as representatives of clients, their behavior implicates the fairness and integrity of the justice system. Discrimination or harassment by lawyers “engenders skepticism and distrust of those charged with ensuring justice and fairness.” Because the Rule furthers this important state interest, it does not violate the First Amendment. Moreover, “The Rule does not prevent a lawyer from freely expressing opinions and ideas on matters of public concern, nor does it limit in any way a lawyer’s speech or conduct in settings unrelated to the practice of law.” Thus, a lawyer’s affiliation with a religious organization “which advocates, on religious grounds, for the ability of private employers to terminate or refuse to employ individuals based on their sexual orientation or gender identity” does not violate Rule 8.4(g). Because the Rule does not limit client selection or legitimate advocacy, a lawyer who represents a client challenging “on First Amendment grounds a local ordinance that requires all schools to provide gender-neutral restroom[s]” does not violate Rule 8.4(g). Rule 8.4(g) is broader than TRPC 8.4 comment [3] in at least three ways. First, it is a Rule, not merely a comment.2 Second, unlike Comment [3], which is limited to conduct “in the course of representing a client,” the Rule prohibits conduct “related to the practice of law,” including “interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.” CLE presentations and law school teaching are also covered by the Rule. Third, the Rule identifies three protected categories not mentioned in Comment [3]: ethnicity, gender identity, and marital status. Despite these distinctions, however, both Rule 8.4(g) and Comment [3] remind lawyers acting in their professional capacities to refrain from speech and conduct reflecting bias or prejudice.
1
2
ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 493 (July 15, 2020). “Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules.” Tenn. Sup. Ct. R. 8, Preamble and Scope, para. 15. However, it is likely that the court would treat comment [3] as more than merely persuasive in determining whether certain lawyer conduct is prejudicial to the administration of justice.
If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. September 2020
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PA S S I N G B Y By: Nate Ogle Knox County District Attorney General’s Office
SUMMER BBQ IN THE LOST YEAR This summer has been a tough time for those of us who enjoy checking out new local eateries, watering holes, and sharing in a good meal with friends. Given the conditions, I was sitting around the house one weekend in early May with the COVID blues when I had an idea – could I add some happiness and enjoyment to an otherwise dull-looking summer by trying my hand at BBQ smoking? Maybe by taking my BBQ skills up a notch I could elevate the summer to something more fun and memorable than simply another seasonal casualty of 2020, our collective “lost year.” Like many of you, I’ve always enjoyed good BBQ. We are certainly blessed with some fine restaurant options in this area, but I’ve always been a bit envious when I’ve gone to a friend’s house and watched them basking in BBQ glory of their own creation. Sure, I had the standard charcoal grill for the basics for as long as I can remember, but I never endeavored into the world of smoking meat with the classic low-and-slow method by which the BBQ masters swear. For those not acquainted with the idea, the concept is to flavor red meat, white meat, or seafood and then slowly cook the meat by applying indirect heat combined with the smoke of a hardwood at a consistent temperature. Most BBQ smoking setups involve the use of charcoal (of which there is a never-ending variety), hardwood, or the convenience of a variety of new wood-pellet smokers and grills. I did my research on these different setups and ultimately decided, given this was my first foray into the arena of real home BBQ smoking, to go with a more price-friendly bullet-style smoker – the Weber Smokey Mountain. This is a basic setup, charcoal in the bottom of a bullet-shaped grill reminiscent of an old burn barrel, with the hardwood of your choice while the racks for your food sit above a bowl or metal plate in the middle of the smoker that serves to block the direct heat of the slowly burning catalyst below. This ensures the food is slowly cooked with the indirect heat and smoke emanating from the bottom. Katie and I have for years had a large vegetable garden in our back yard. The large garden plotted in the backyard of our home from the previous owner was one of the things that drew us to purchase the property four years ago, and we have tried, although not always successfully, to produce delicious vegetables for ourselves, friends, and family in the summers. This year we have grown tomatoes, cucumbers, peppers, green beans, and even a few stalks of corn that appear to be on the way to producing. This BBQ endeavor was new though – something totally of my own whim that we hadn’t discussed trying. Katie is usually supportive and humored me although I know she had her concerns. Would I burn everything and then set aside the BBQ smoker like some other long-forgotten hobby or become so consumed with it I would forget about my small kids and leave her alone to deal with their weekend
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mishaps? I was determined to begin my path to BBQ mastery despite the lingering and perhaps legitimate spousal concerns. I purchased some new spices, different varieties of charcoal and hardwood, and made a trip to Costco for some meat to fill the BBQ smoker. I’m happy to report Katie and the kids have not been disappointed. This summer, almost every weekend my family has spent time together in the backyard taking in the scents of the BBQ smoker slowly working its magic on ribs, briskets, chicken, vegetables, and my kids’ favorite mac and cheese. I have certainly not mastered BBQ – it turns out it is a process of trial and error that takes quite some time to achieve consistent results. But my kids don’t seem to mind when I don’t get it just the way I want it. To them, I have become a COVID summer household hero on BBQ weekends as the family eagerly awaits the result of whatever we’re trying out on the BBQ smoker. My family has spent more time than ever before this summer outside together enjoying our yard and making memories. As I have shared stories about this new hobby with friends and colleagues, I have been pleasantly surprised to see many others also returning to the backyard for fun in these difficult times. We have exchanged BBQ recipes, mouth-watering photos of the products from our different BBQ smokers, and other tips for perfecting flavor and finish. While this summer has been different and challenging, I have seen friends and family dealing with the isolation of our time by rediscovering the simple joy of slowing down together at home. Maybe, if we remember these moments, there might be some bright spot to recall when we look back on this time years from now. If nothing else, Katie and I have some great photos of our small son devouring some BBQ ribs with the biggest grin you’ve ever seen.
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September 2020
MANAGEMENT COUNSEL: LAW PRACTICE 101 By: R. Bradford Brittian and John T. Winemiller Merchant & Gould, P.C.
THE IMPACT OF COVID-19 ON LAW FIRM OPERATIONS Since mid-March, law firms have participated in a grand, involuntary experiment in new modes of working. COVID-19 may forever change the way law firms operate. Here are some loosely connected thoughts on what those changes might mean. PEOPLE Empowering employees Before last March, many employers, including some law firm leaders, were reluctant to implement work from home policies. That is sure to change to some degree. Under extremely stressful circumstances, especially for employees who are also caregivers, work got done, clients were served, and operations continued. This might mean that going forward leaders will empower employees to structure their work schedules and locations to accommodate their non-work responsibilities. It may even lead some employers to rethink how to measure and reward successful work. Human interactions Successfully formulating work procedures that accommodate productivity in this new world is clearly not enough. For many of us the enjoyment we find in working in a law firm is closely tied to the human interactions we have with colleagues, clients, and others. As humans we are social animals, and human interaction is important to our happiness and overall mental health. In our interactions with others we find not just enjoyment but support. Studies show that human interaction relieves stress – although we may question that after a heated exchange with opposing counsel. Studies also suggest that human contact is important to our physical health. The development and worsening of cardiovascular disease, repeat heart attacks, autoimmune disorders, high blood pressure, and other physical problems have been tied to a low quantity or quality of social interactions. In a world of social distancing and video conferencing one of the biggest challenges that law firms may face is maintaining the mental and physical health of employees in a changed environment. Ways must be found to keep lawyers and staff from feeling isolated and detached from their colleagues. It may have already been proven that quality legal services can still be provided in this changed world, but ways must be found to stimulate safe social interaction. Physical health Face masks and hand sanitizer have become ubiquitous. But there’s more to public health than these basic protections. “Local businesses and organizations … have instituted operational changes that promote physical distancing, updated leave and work-from-home policies, developed new engineering and administrative controls, changed cleaning protocols, and many have even modified their business models,” according to Katharine Killen, the Deputy Senior Director of Strategy at the Knox County Health Department. We expect employers will not only encourage, but also require employees to work from home at the first sign of illness. “After all, a healthy workforce is a productive workforce,” says Killen. PLACES Home offices For many law firms, the sudden shift to work from home last March
was made possible by the resourcefulness and good will of employees, who set up shop on dining room tables and basement sofas. But those temporary quarters are unlikely to work over the long term. We don’t know anyone for whom home is work, and work is home. For those fortunate to have the space, home offices or other dedicated spaces would seem to be key to successful work from home set-ups. Office space According to Justin Cazana, a principal at Avison Young, “Firms will ride a fine line between finding a cost-effective space while still providing a space that will allow for ‘social distancing.’” This will require a balancing of the recent trend of emphasizing efficient use of space with a new emphasis on physical separation. This could mean the demise of the open office plan and increased use of physical barriers like glass or plexiglass between workstations. The result might be offices that are not much smaller than current spaces, but that are configured in new ways to separate workers. Travel The airline industry is bracing for an overall reduction in workrelated travel. But the value of person-to-person meetings will eventually lead lawyers back to the sky when it is safe. Zoom and other videoconferencing applications have proven invaluable over the past six months, of course. But they’ve also revealed the limits of that mode of communication. Nothing can replace the importance of proximity in building and maintaining relationships – with clients and with colleagues. THINGS Laptops As law firms replace computer equipment, flexibility will be the watchword. Employees who use laptops are not tethered to a desk. If need be, they can shift their work location from a desk in an office to a coffee shop to a home office with minimal disruption. There’s one important caveat here: The ability to work remotely is tied to fast broadband access. This suggests it’s time for Knoxville to replicate the robust broadband coverage Chattanooga enjoys. Broadband Remote work is often, by necessity, paperless work. Our own experience over the past few months is that we read almost everything on screens – not paper. It wasn’t by choice, of course. But it taught us that we could survive without printing out cases to read, briefs to proofread, and draft letters. We’ll see if we resume our love-affair with paper. Law firm CFOs would surely appreciate the cost-savings that offices could enjoy if we don’t. CONCLUSION We don’t know where we’ll be in another six months, much less six years. But we’re confident that we’ll be better off if we learn at least some lessons about law firm operations from the experience of the past six months.
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. September 2020
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“A NECESSARY AND UNDISGUISABLE ROLE”: LGBTQ DISCRIMINATION AS SEX DISCRIMINATION One could say it has been the decade of LGBTQ legal rights. No entity has thrown around more weight on this front than the Supreme Court. In 2013, the Court struck down the portion of the Defense of Marriage Act (DOMA) of 1996 that defined marriage as a “legal union between one man and one woman as husband and wife.”1 In 2015, the Supreme Court made it clear same sex couples had a constitutionally protected right to marriage.2 But then, in 2018, the LGBTQ community took a hit when the Court held that a baker was not required to make a wedding cake for same-sex marriages.3 But then, on June 15th of this year there was another big win. The federal circuits had split in recent years on whether Title VII of the Civil Rights Act of 1964, which bans employers with 15 or more employees from discriminating against workers based on sex, encompasses bias based on either sexual orientation or gender identity.4 The 6-3 ruling in Bostock v. Clayton County, Georgia, answered: it does. This opinion was surprising, not only in its result, but in its support by conservative members of the bench, Chief Justice John Roberts and Justice Neal Gorsuch. In fact, Gorsuch authored the opinion. Historical context may best serve us in understanding this opinion. Title VII prohibits discrimination in the workplace on the basis of race, color, religion, sex, or national origin. For our purpose we are focusing on discrimination “because of sex.” What exactly “because of sex” means was the subject of subsequent litigation and legislation. Congress amended Title VII with the passage of the Pregnancy Discrimination Act of 1978, to make it clear that the “terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to . . . pregnancy, childbirth, or related medical conditions.”5 In the same year, the Supreme Court explained that “because of sex” means “treatment of a person in a manner which, but for the person’s sex, would be different . . . .”6 The scope of “because of sex” was broadened in 1989 in Price Waterhouse v. Hopkins, when the Court recognized sex stereotyping as a violation of Title VII. The Court held the meaning of “because of sex” goes beyond biological sex to reach gender, which is a social construct built around sex.7 The plaintiff was denied partnership, and advised to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry” if she wished to improve her chances to make partner.8 The Court found this to be impermissible sex stereotyping because discrimination based on lack of adherence to societal expectations of a respective gender is discrimination “because of sex.” A man would not have been denied partnership for failing to wear make-up. Fast forward to 2020. In three linked appeals, the Supreme Court was poised to answer the question whether “because of sex” includes
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sexual orientation and sexual identity. In each case, the employer allegedly fired the plaintiff for being gay or transgender. Gerald Bostock was fired by Clayton County Child Welfare Services Department for conduct “unbecoming” a county employee shortly after it was discovered he played in a gay softball league. Altitude Express fired Donald Zarda days after he expressed that he was gay. R. G. & G. R. Harris Funeral Homes fired Aimee Stephens (who had presented as male) after she notified them that she planned to transition to living and working as a woman. Each plaintiff sued, alleging sex discrimination under Title VII. The Eleventh Circuit dismissed Bostock’s claim as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Zarda and Stephens, respectively, to proceed. In his opening paragraph, Justice Gorsuch framed the issue before the Court as, “whether an employer can fire someone simply for being homosexual or transgender.”9 His answer was clear. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”10 So how does conservative Justice Gorsuch get to such a progressive conclusion? That would be courtesy of textualism, which all conservative members of the bench are stated adherents of. This legal theory asserts that laws should be interpreted only on the basis of a statute’s text and not on extratextual sources, including legislative history and speaker’s intent. The Court was interpreting a statute passed in 1964. As such, the analysis was based on the “ordinary public meaning of its terms at the time of its enactment.”11 Gorsuch first analyzed the term “sex,” and found the meaning to be “status as either male or female [as] determined by reproductive biology.”12 It is important and interesting to note that Gorsuch ceded that Congress in 1964 most assuredly did not intend sex to include sexual orientation or sexual identity, but textualism counsels in favor of a focus on the plain and ordinary meaning of the text of the statute rather than Congress’ intent. The more important analysis was what Title VII said about sex, specifically “because of.” Gorsuch found that “because of ” means and meant in 1964 “by reason of ” or “on account of.” As a result, the Court concluded that “in the language of the law, this means that Title VII’s ‘because of ’ test incorporates the ‘simple’ and ‘traditional’ standard of butfor causation.”13 This in and of itself will have far reaching implications in clarifying causation in discrimination cases going forward. “The ‘but-for’ test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.”14
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September 2020
COVER STORY By: Bianca White Student Services & Assessment Librarian Assistant Professor of Law Lincoln Memorial University Duncan School of Law
Accordingly, the Court ruled that “[s]o long as the plaintiff ’s sex was one but-for cause of [the employer’s] decision, that is enough to trigger” Title VII protection. Gorsuch noted Congress could have taken a more restrictive approach by utilizing the terms “solely” or “primarily because of,” but they did not.15
the Court’s, to include sexual orientation and identity as a protected class under Title VII. The next stop for LGBTQ legal rights on this issue will most assuredly focus on attempts to have the exceptions swallow the rule. Most notably, in the vein of Hobby Lobby,20 the Religious Freedom Restoration Act21 is sure to serve as a defense for some employers to the application of Title VII based on sexual orientation and identity by asserting it is a violation of one’s deeply held religious belief to be forced to employ said class of people. Stay tuned…
Gorsuch also focused on the term “individually.” Title VII prohibits discrimination against “any individual . . . because of such individual’s . . . sex.”16 This focus on individual protection over class protections is important because Congress chose not to protect only the class of women, but rather to protect “individuals” based upon a protected characteristic – here “sex.” Some of the more cerebral parsing of words is made easier to understand with Gorsuch’s examples. For instance, [A]n employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it.17 The Court made it clear that if changing the employee’s sex leads to a different employment action, Title VII has been violated. “Title VII’s message is ‘simple but momentous.’ An individual employee’s sex is not relevant to the selection, evaluation, or compensation of employees.”18 As a result, the Court concluded that “it is impossible to discriminate against an individual for being homosexual or transgender without discriminating against that individual based on sex.”19 The opinion provides a plethora of examples to drive home the point that discrimination based on sexual orientation or identity is inextricably intertwined with the employee’s sex, because if they were the other biological sex the result would be different. Accordingly, the Court affirmed the judgments of the Second and Sixth Circuits. The Court reversed the Eleventh Circuit’s judgment and remanded the matter for further proceedings consistent with it. Not surprisingly, Justices Alito (joined by Thomas) and Kavanagh dissented with varying degrees of vociferousness. Justice Alito was more irate, accusing the majority of legislating, likening them to pirates and providing a litany of horrors that are certain to follow this decision. Justice Kavanagh took a more tempered approach. While asserting he was happy for the plaintiffs, he insisted that is was Congress’ place, not September 2020
United States v. Windsor, 570 U.S. 744, 752 (2013). Obergefell v. Hodges, 576 U.S. 644 (2015). 3 Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018). 4 Before Bostock, the Courts of Appeals were split on whether LGBT people were protected by the language of the statute. See Equal Emp’t Opportunity Comm’n v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018) (transgender employees protected), cert. granted, 139 S.Ct. 1599 (2019); Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc) (gay employees protected), cert. granted, 139 S.Ct. 1599 (2019); Bostock v. Clayton County, Ga., 723 Fed. App’x. 964 (11th Cir. 2018), reh’g en banc denied, 894 F.3d 1335 (11th Cir. 2018) (gay employees not protected), cert. granted, 139 S.Ct. 1599 (2019); Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc) (gay employees protected). 5 Pregnancy Sex Discrimination Act, prohibition., Pub. L. No. 95-555, 92 Stat. 2076 (1978). 6 City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (quoting W. David Slawson, Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1170 (1971)). 7 490 U.S. 228 (1989). 8 Id. at 235. 9 Bostock v. Clayton Cty., 140 S. Ct 1731, 1737 (2020). 10 Id. 11 Id. at 1738. 12 Id. at 1739. 13 Id. 14 Id. 15 Id. 16 Id. at 1740 (quoting 42 U.S.C. § 2000e-2(a)(1) (2020)). 17 Id. at 1741. 18 Id. (quoting Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion)). 19 Id. 20 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014). 21 42 U.S.C. § 2000bb et seq. 1 2
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GRAMMAR GRINCH By: Sarah M. Booher OEB Law, PLLC
LOVING OUR LATIN LEGAL LOCUTIONS Gentle Readers: In these current times, many attorneys are trying to merely stay afloat in their practices and personal lives, without the added stressors of self-improvement and additional learning endeavors. Consequently, I thought it might be fun for us to revisit some Latin phrases we learned in law school. Whether you want to test your memory, spruce up your legal writings, or simply take comfort in the now-familiar phrases, be ever mindful that The Bluebook requires us to “italicize non-English words and phrases unless they have been incorporated into common English usage.” However, there is no clear line as to what is common; we should therefore do as we are already doing in our daily lives – navigating the murky waters by simply doing our best. PHRASE:
TRANSLATION:
ad litem
for the case
ab initio
from the beginning
ad quod damnum
according to the harm
Theory in tort law that the relief sought and/or the verdict given should correspond to the harms suffered.
amicus curiae
friend of the court
Person, party, entity, or organization who offers information to the court regarding a specific case before it.
Refers to the time a contract, statute, marriage, deed, etc. became legal.
bona fide
in good faith
Implies sincere or good intention.
certiorari
to be apprised
Order to lower court to deliver a case record to appellate court.
de facto
in fact/in reality
de novo
anew
erratum
having been made in error
et al.
and others
et seq.
and the following (things)
exempli gratia (e.g.)
for the sake of example
ex parte
from/for one party
ex post facto
from a thing done afterward
gravamen
things weighing down
habeas corpus
you have the body
infra
below or under
in limine
at the threshold
in loco parentis
in the place of the parent
in rem
about a thing
inter vivos
between the living
ipso facto
by the fact itself
Something true in practice, although not necessarily officially endorsed or established. Traditionally used by appellate courts as standard of review to substitute its judgment for that of the trial judge. An error of print or writing, sometimes referred to a “scrivener’s error”. Abbreviation of et alii; proper use requires there be at least three parties or things being referenced. Commonly used in citations to include numbered lists, pages, or sections after the first number is stated. Not to be confused or used interchangeably with i.e., short for id est, meaning “that is”. with respect to or in the interests of one side only (ex parte hearing, for example). The Constitution prohibits such laws that make an act, done before the law was passed, punishable as a crime after such passage. Basic element or fundamental issue of a lawsuit. Court order directly law enforcement to bring a person in their custody to court for the judge to determine if the prisoner is being lawfully held. Used in citations to reference items to be cited below, as opposed to supra. Motions filed with court before the start of trial (motion to suppress, for example). Refers to foster parents, county custodial agency, etc. caring for a minor child. Lawsuit or other legal action directed to property, rather than person. Transfer of property by agreement between living persons, rather than by gift through a will. One event is the direct and immediate consequence of another.
mens rea
guilty mind
modus operandi
manner of operation
nolle prosequi
not to prosecute
Decision/declaration by judge or prosecutor to drop charges against a defendant.
nolo contendere
I do not dispute
Often called “no contest.”
nota bene
note well
nunc pro tunc
now for then
parens patriae
parent of the nation/father of his country
prima facie
at first face
pro forma
as a matter of form
pro hac vice
for this turn/this time only
pes ipsa loquitor
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USE, DEFINITION, or NOTES: Describes those designated to represent parties in an action (guardian or administrator, for example).
the thing speaks for itself
res judicata
a matter judged
respondeat superior
let the master answer
scienter
knowingly
sine qua non
without which, nothing
sua Sponte
of its own accord
subpoena duces tecum
bring with you under penalty
sui generis
of its own kind/genus
supra
above
ultra vires
beyond the powers
The ‘guilty mind’ required to establish criminal responsibility. Person or entity’s particular way of doing things.
Used to draw attention to what follows, generally a cautionary or qualifying statement. Court correction of a previous procedural or clerical error. Doctrine that the government is ultimate guardian of minors and incapacitated adults. A matter that, at face value, appears to be true or based in evidence. Something done as a formality. Application of an out-of-state lawyer to appear in court on a specific case, despite not being licensed to practice in litigating state. Doctrine asserting that the exclusive party in control of the injury-causing thing is presumed to be negligent, despite lack of evidence of an act of negligence. The issue before the court, between the same parties, has already been decided by (another) court. A legal theory that the employer is responsible for the actions of the employee. Intent or knowledge of wrongdoing. Vital action or condition. An act of authority taken without formal prompting from another party, often a judge acting without a prior motion or request from the parties. Court order requiring a witness to bring documents in their possession or under their control to a certain place at a certain time. A feature unique to a specific group. Used in citations to reference a previously cited source, as opposed to infra. An act requiring legal authority to be performed, but is done without such authority.
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September 2020
THE NOBLEST PROFESSION By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.
HOW TO BE GOOD The world was still at war when Bertram “Bert” Freedman was born in 1918, but not for long. At the 11th hour, on the 11th day, of the 11th month of 1918, World War I ended on what was then known as Armistice Day and is now celebrated in the United States as Veteran’s Day.1 Freedman grew up in Westchester County, New York during the height of Prohibition. In fact, Westchester County was the headquarters for the New York State Prohibition Department, which was responsible for keeping an eye on the “Broadway cabarets” and “rigorous enforcement of the new anti hiptoting edict.”2 But by the time Freedman headed off to City College of New York at the age of 17, Prohibition was over, the Twenty-First Amendment had been ratified,3 and the world was relatively calm. By 1938, Freedman had graduated from Brooklyn Law School at the age of 21, and he started a career in private practice in the City.4 Things were looking good for this young, Jewish attorney, but little did he know that, across the Atlantic, the situation for another Jewish attorney was much more dire. In 1903, Hans Achim Litten was born in Halle, Germany to a wealthy, Jewish family.5 He served in World War I, studied law in Berlin and Munich, and then turned down a job with the Reich Ministry of Justice to open his own law firm in 1928.6 Litten was an independent-minded man, both personally and professionally, and he soon made his mark on the legal community.7 In 1930, a group of men entered the Eden Palace dance hall in Charlottenburg and began shooting and stabbing its patrons.8 The Eden Palace dance hall was known to be a gathering place for laborers and members of the Communist Party, and as you may recall from 10th Grade history, Communists were high on the list of groups the Nazi party slated for eradication.9 But, that didn’t matter to Litten. He took the case of four workers who were injured during the Eden Palace attack, and he filed suit against the Sturmabteilung (SA), a group of ex-soldiers hired to “protect” Nazi Party gatherings from disruption.10 The SA were well-known to be under the direction of Joseph Goebbels, who later became the Nazi Minister of Propaganda and architect of many attacks on Jewish communities.11 The fact that he was a Jewish lawyer representing people who were injured at a Communist Party gathering place did not matter. Litten was not just going after the SA officers who raided the dance hall. He was going after the one who gave the order. On May 8, 1931, two days into the trial, Litten called his next witness— Adolf Hitler.12 At the time, Hitler was the leader of the Nazi Party, but it had less than 100,000 members.13 However, it was growing rapidly, had 18% of the popular vote the year before, and in a different trial, Hitler had taken an oath that his party would follow the rule of law and not embrace violence.14 Litten’s theory was that the Eden Palace was not a random attack but a natural result of the Nazi Party’s philosophy—of Hitler’s philosophy, and so Litten subpoenaed Hitler in order to test that theory, and possibly expose Hitler to a perjury charge.15 Litten’s cross-examination lasted for three hours.16 He offered evidence of Hitler’s own writings about the role of violence in politics. He introduced Goebbels’ pamphlets calling for the annihilation of the Weimar democracy. He called to the witness stand a former SA member who testified that top Nazi officials promoted the violence.17 Hitler said his writings were just metaphors. He said the pamphlets were not official publications. He said the witness was lying.18 Hitler was not on trial, but Litten’s cross-examination exposed him to anyone who was listening. Sadly, not enough people were listening, and by January 1933, the Nazi Party took power.19 A month later in February 1933, Litten was arrested and “beaten so badly that the Nazis refused to let even his fellow prisoner see him.”20 He attempted suicide to avoid being forced to give up the names of his former clients, but the Nazis revived him so that they could continue their interrogation.21 Over the next five years, he was moved from concentration camp to concentration camp, and eventually was transferred to the Jewish quarters at Dachau in 1937.22 On February 5, 1938, after yet another round of tortuous interrogation, Litten took his own life.23 This lawyer was only thirtyfive years old. September 2020
Nineteen months later, Hitler invaded Poland, and World War II officially began.24 On December 7, 1941, the Japanese attacked Pearl Harbor, the United States officially entered the war, and Bertram Freeman volunteered for the Army Signal Corps.25 Like thousands of young men, he was sent to the Pacific, and he was assigned to Brigadier General George M. Parker, Jr. in the garrison at Bataan in 1942.26 On April 9, 1942, Freedman was at Parker’s headquarters when they received news that the garrison had been ordered to surrender.27 “We were told we surrendered,” Freedman said. “They say there are no atheists in a foxhole. That’s the same thing. You just pray to God you’ll get through it. Then you start worrying about your family. I dare say those who were married and had children, they were terribly concerned. As for myself at that moment, I was wondering how the hell are my parents going to come through this one, with four sons registered for the draft.28 That is where we will leave Freedman until the October column. There is much more of the story to tell. For now, consider this. Mark Twain once wrote, “To be good is noble, but to show others how to be good is nobler and no trouble.”29 These two young lawyers, Litten and Freedman, did exactly that.
See History.com, Armistice Day, World War I Ends, https://www.history.com/ this-day-in-history/world-war-i-ends (last visited Aug. 8, 2020); see also Veterans Day Facts (Nov. 11, 2019), https://www.history.com/topics/holidays/ veterans-day-facts#:~:text=Veterans%20Day%20originated%20as%20 %E2%80%9CArmistice,national%20holiday%20beginning%20in%201938 (last visited Aug. 8, 2020). 2 May Forsake Broadway and Haunt Westchester, Larchmonter Times (Sept. 7, 1922), available at https://www.larchmontgazette.com/guide/history/1922/1922crimea. html. 3 See U.S. Const. Amend. 21 (Eff. Dec. 5, 1933). 4 Matt Schudel, Bertram Freedman, 92, Dies, Federal Lawyer had Survived Bataan Death March (Wash. Post June 4, 2010), available at https://www.washingtonpost. com/wp-dyn/content/article/2010/06/03/AR2010060304455.html. 5 Hans Litten German Lawyer Biography, https://peoplepill.com/people/hans-litten/ (last visited Aug. 8, 2020). 6 Id. 7 Id. 8 Mark Hayhurst, Hitler in the Dock, HistoryExtra (Sept. 15, 2011), https://www. historyextra.com/period/second-world-war/hitler-in-the-dock/ (last visited Aug. 8, 2020). 9 Id. 10 Our Legal Heritage: The Lawyer who put Hitler in the Dock, Irish Legal News (Mar. 25, 2020) https://www.irishlegal.com/article/our-legal-heritage-the-lawyer-whoput-hitler-in-the-dock (last visited Aug. 8, 2020). 11 U.S. Holocaust Memorial Museum, Joseph Goebbels, Holocaust Encyclopedia (Dec. 18, 2019), available at https://encyclopedia.ushmm.org/content/en/article/josephgoebbels-1. 12 Our Legal Heritage, supra n. 10. 13 U.S. Holocaust Memorial Museum, Adolf Hitler: 1930=1933, Holocaust Encyclopedia (Mar 21, 2017), available at https://encyclopedia.ushmm.org/content/en/article/ adolf-hitler-1930-1933. 14 Hayhurst, supra n. 8. 15 Id. 16 Hans Litten German Lawyer, supra n. 5. 17 Hayhurst, supra n. 8. 18 Id. 19 Id. 20 Id., Hans Litten German Lawyer, supra n. 5. 21 Id. 22 Id. 23 Id. 24 History.com, World War II, https://www.history.com/topics/world-war-ii/world-warii-history (last visited Aug. 8, 2020). 25 Id.; see also Schudel, supra n. 4. 26 Schudel, supra n. 4. 27 Herald-Tribune, U.S. Forces Surrender at Bataan (Aug. 12, 2004), available at https://www.heraldtribune.com/news/20040812/us-forces-surrender-at-bataan. 28 Id. 29 Mark Twain, Following the Equator: A Journey Around the World (Odin’s Library Classics 1897). 1
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barrister bullets BARRISTERS MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month. The next meeting will be held on September 9 at 5 p.m. through Zoom. There are many opportunities to get involved, and you are encouraged to contact Barristers President Allison Jackson (ajackson@emlaw.com) or Vice President Amanda Tonkin (Amanda.Tonkin@ssa.gov) for more information. PROFESSIONAL CLOTHING DRIVE POSTPONED The Spring Professional Clothing Drive organized by the Hunger & Poverty Relief Committee was postponed; however, new dates will be announced soon. Please contact the committee co-chairs, Chuck Sharrett (Csharrett@londonamburn.com) or Meagan Collver (MDavisCollver@londonamburn.com) with questions or to learn more about how you can help.
SEEKING TEAMS AND SPONSORS FOR CHARITY GOLF TOURNAMENT The Barristers and the KBA join together to co-host the annual Lawyers Link Up Charity Golf Tournament on Monday, October 26, 2020 at the Holston Hills Country Club. Revenue from the tournament goes directly to funding various charitable endeavors of the Barristers, including the efforts of the Hunger & Poverty Relief Committee. Regular Registration is $125 per player. Registration for Law Students & Attorneys Licensed 2016-20 is $100 per player. Space is limited, so sign up now! Registration includes green fees, cart, range balls, lunch, water, sports drinks, and beer while golfing, and a commemorative tournament gift along with other prizes! The Athletics Committee is looking for sponsors for this year’s event. If you know of someone who would like to sponsor, please contact the Athletics Committee co-chairs, Luke Durham (ldurham@ tcflattorneys.com) or James Parker (jparker@hdclaw.com).
VOLUNTEER FOR THE VETERANS’ LEGAL ADVICE CLINIC The Barristers Veterans Legal Advice Clinic was held virtually for the first time on August 12 from 12 p.m. to 2 p.m. We had a gratifying nine attorney volunteers sign up to help. Four veterans/spouses contacted Legal Aid of East Tennessee for intake by their staff and were matched with volunteers. We are pleased with how the virtual process worked out and plan to do another virtual clinic on September 9. Sign up to help at www.knoxbar.org/volunteer. DIVERSITY SMALL GROUP LUNCHEONS POSTPONED The Diversity Committee have been meeting with law students for small group discussions regarding pertinent topics in today’s ever changing landscape. The Diversity small group luncheons and planning sessions may be moved to virtual meetings, depending on how long the pandemic continues. Please watch for updates from the Diversity Committee via email and on the KBA online Calendar or contact committee co-chairs, Soojin Kim (Skim@emlaw.com) or Jessica Jernigan-Johnson ( JJerniganJohnson@londonamburn. com), to learn how you can become involved in upcoming Diversity meetings and events.
LAWYER REFERRAL & INFORMATION SERVICE
A BA MEMBER BENEFIT
QUALITY LEADS: LOW COST
VOLUNTEER BREAKFAST The Volunteer Breakfast Committee will continue to deliver breakfast to the Volunteer Ministry Center on the fourth Thursday of the month, however, the Center has suspended in-person volunteer opportunities until further notice. We thank the Knoxville Bar Association for its continued support and will continue to accept sponsorships for breakfasts. Volunteer groups will be contacted about their respective months as the situation develops. Please contact Matt Knable (knablelaw@gmail.com) or Mitchell Panter (mpanter@lewisthomason.com) with questions or concerns.
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The new fiscal year started on July 1. From July 1, 2019 to June 30, 2020, the KBA LRIS staff fielded over 6700 calls and made more than 2900 referrals. Almost 10% of those referral callers elected to retain the referred attorney.
TO LEARN MORE: (865)522-6522 www.knoxbar.org/joinLRIS
NOT PRO BONO
Participating lawyers collected over $1.26 million in attorney's fees from July 1, 2019 to June 30, 2020.
September 2020
LEGAL MYTH BREAKERS By: David E. Long MGC Member
MORE ON THE PUNITIVE DAMAGES FRONT The case of Hudson, Holeyfield & Banks, G.P. v. MNR Hospitality, LLC1 dealt with a lease dispute. Denny’s Restaurant entered into a lease with the Benchmark Hotel. Denny’s was owned by a partnership, Hudson, Holeyfield & Banks, G.P. (“HHB”). The Denny’s operated on the ground level of the hotel and inside the Hotel structure. The lease, which began in 2001 and extended through 2008, had five additional 3-year options. In 2008, HHB exercised its first option, and elected to do the same in 2011. In 2012, MNR Hospitality, LLC (“MNR”) purchased the hotel. MNR notified HHB it wanted to buy back the lease because it could not locate a major hotel franchise that would accept a Denny’s inside the hotel. MNR offered $100,000.00 and stated if HHB would not agree MNR would have to sell the hotel. HHB refused the offer and stated it expected full performance of the lease.2 In response, MNR began interior construction on the building, which caused leaks in the Denny’s restaurant and other associated problems. Again, in 2014, HHB exercised its option to renew the lease for another 3 years. It instituted a lawsuit in August 2014 alleging specific performance, unlawful ouster, retaliatory eviction, and tortious interference with peaceful and quiet possession. HHB demanded both compensatory and punitive damages. The trial court eventually held MNR to be liable for net profits as well as punitive damages.3 Several issues were taken up to the Court of Appeals, including the way the trial court calculated the damages. The case is a good read on those issues; however, this article will focus on the punitive damages analysis in the case. The main issue regarding the punitive damages argument was the fact the defendant did not demand a bifurcated hearing in its pleadings. The question was whether a bifurcated hearing was optional for punitive damages or required under the current law. The Court of Appeals, Western Section, held a bifurcated hearing was required on punitive damages at the trial level, even if not requested by a defendant.4 Punitive damages were demanded in the Complaint, but the issue barely came up at the trial of the main case. Defendant did mention it in its motion for involuntary dismissal at the close of plaintiff ’s proof. However, at the end of the trial, the trial court awarded punitive damages against MNR for reckless, intentional and knowing activities to destroy HHB’s business. One would have to been asleep under the proverbial rock to miss the judicial activity, federal and state, regarding damage caps in how damages are derived under the Tennessee Civil Justice Act of 2011. September 2020
Cases such as Lindenberg v. Jackson Nat’l Life Ins. Co.,5 and McClay v. Airport Management Services, LLC6 are important cases in regard to the topic. The Hudson case is a part of the continuing jurisprudence in that regard. First of all, the Court of Appeals held the case would have to be remanded based on the calculation of the damage award itself.7 The Court first looked at Hodges v. S.C. Toof & Co.,8 the Tennessee Supreme Court case that formulated the basis for the statutory framework for punitive damages under the Civil Justice Act.9 The Court held, in reviewing Hodges, the common law punitive damages opinion required the demand of a bifurcated hearing by the defendant. However, the statute does not require a demand. It mandates a bifurcated hearing whether requested or not, and even in the instance of a bench trial.10 The Court reviewed cases since the enactment of the Civil Justice Act holding a demand for bifurcation was needed; however, the Court concluded that all of those cases were not under the Civil Justice Act due to the age of those cases when the punitive damages statute was enacted. It further noted that since the punitive damages statute was fairly young, there were not very many cases addressing it. The Court ultimately remanded the case to instruct the trial court, in a bench trial, to have two hearings, (1) to establish factors for punitive damages by clear and convincing evidence, and (2) to bifurcate the punitive damages hearing under the further procedures mandated by the statutes. The Hudson case is a logical case proceeding from the statute itself. It will be interesting to see if the other appeals courts in the state agree. It, and other cases, also tend to signal the fact specific issues are starting to come to the forefront regarding the Tennessee Civil Justice Act of 2011. As a practice pointer, it is still probably a good idea to demand bifurcation while practicing in the Middle and Eastern Sections, in order to be safe.
1 2020 Tenn. App. LEXIS 358, No. W2019-00123-COA-R3-CV (Tenn. Ct. App., June 23, 2020). 2 Id. at * 2-3. 3 Id. at * 4-5. 4 Id. at *15. 5 912 F.3d 348 (6th Cir. 2018). 6 596 S.W.3d 686 (Tenn. 2020). 7 The Court of Appeals modified the damages calculation. 8 833 S.W.2d 896, 901 (Tenn. 1992). 9 Tenn. Code Ann. Sec. 29-39-104. 10 Id., and Hodges, at 13-16.
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Address Changes WELCOME NEW MEMBERS
Please note the following changes in your KBA Attorneys’ Directory and other office records:
THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS: NEW ATTORNEYS
E. Michael Brezina III BPR #: 023526 625 Market St., 7th Floor Knoxville, TN 37902-2212 Ph: (865) 742-0101 Brezina1979@gmail.com Hon. Kristi M. Davis BPR #: 019487 Tennessee Court of Appeals P.O. Box 444 Knoxville, TN 37901-0444 Ph: (865) 594-5246 Judge.Kristi.Davis@tncourts.gov
Karin Anderson-Barrett Amber L. Corn Law Office of Amber Lynne Corn Nina M. Eiler Kay Griffin, PLLC William L. Gribble II The Law Office of William Gribble
Christopher A. Hall BPR #: 009980 Long, Ragsdale & Waters, P.C. 1111 N. Northshore Drive, Suite S-700 Knoxville, TN 37919-4097 Ph: (865) 584-4040 chall@lrwlaw.com
Daniel A. Herrera Ray H. Jenkins Sharon H. Kim Frantz, McConnell & Seymour, LLP Courtney S. Matyac
Jimmy D. Holbrook BPR #: 018038 P.O. Box 22563 Farragut, TN 37933-0563 Ph: (865) 250-8079 jdholbrookjr@charter.net
Stephen F. McStravick Baker, Donelson, Bearman, Caldwell & Berkowitz Karla M. Mendez Cynthia A. Mobley At Risk Intervention
Howard E. Jarvis BPR #: 006673 Maron Marvel Bradley Anderson & Tardy 12144 Southwick Circle Farragut, TN 37934-1500 Ph: (865) 334-6468 hjarvis@maronmarvel.com Eddy R. Smith BPR #: 019600 Kennerly, Montgomery & Finley, P.C. P.O. Box 442 Knoxville, TN 37901-0442 Ph: (865) 546-7311 esmith@kmfpc.com Robert L. Straight III BPR #: 030863 P.O. Box 11521 Knoxville, TN 37939-1521 Ph: (865) 306-5873 straight3law@gmail.com
David L. Morehous Morehous Legal Group, PLLC Heather H. Morgan University of Tennessee Carlos M. Torres Torres Law Firm PLLC John A. Vaught Cordell & Cordell, LLP Gary C. Vowell, Jr. McDonald, Levy and Taylor, PLLC LeAnna R. Wilson U.S. District Court
NEW LAW STUDENT MEMBERS Rebekah A. Branham Douglas M. Campbell, Jr. Kyle MW England Darrell S. Freeman Dominic A. Garduno Miles McDowell McKayla A. Travis Guy E. Tustin III Rachel A. West
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September 2020
AT TO R N E Y P R O F I L E By: Angelia Morie Nystrom The UT Foundation Institute of Agriculture
VAN D. TURNER, JR:
A LEADER WHO REMOVES OBSTACLES AND FINDS INNOVATIVE SOLUTIONS Join the KBA on October 1 for the Diversity and Inclusion CLE “Removing Obstacles” with Van Turner. It has often been said that the best leaders are the best problem solvers. They have the patience to step back and see the problem at-hand through broadened observation—a type of “circular vision.” They see around, beneath and beyond the problem itself. The most effective leaders approach problems through a lens of opportunity and find common ground to reach a solution. They remove obstacles and find innovative solutions. The Honorable Van Turner, Jr., Memphis attorney, Shelby County Commissioner and founder and president of Memphis Greenspace, Inc. is such a leader. Elected to the Shelby County Commission for District 12 in 2014, Turner quickly gained a reputation as a Commissioner who could resolve seemingly intractable disputes by finding and advocating middle-ground positions. He is known as a compromiser who consistently interposes between squabbling factions and finds compromise solutions that resolve the quarrel. In December 2016, an intervention by Turner made it possible for the Commission to approve an MWBE program requiring the county to give African American and Caucasian women special consideration to remedy what the Equal Opportunity Compliance director had determined to be discrimination in contracts and purchasing. The measure almost hit a snag when a fellow Commissioner objected that, by not specifying “all women,” the measure was actually regressive. Debate ensued. If the ordinance were amended, it would require an additional reading—meaning that the issue would have been held off until the following year. Turner materialized with a resolution that bridged the gap between the two contending factions, leaving the existing classifications of the ordinance intact, but adding a provision that gave the EOC director free reign to apply the terms of the ordinance to other groups as she deemed appropriate. That allowed for final vote, approving the ordinance by a decisive 11-2 vote. The Commission went on to approve a companion measure applying similar remedial provisions to locally owned businesses, strengthening their potential future share of county purchases and contracts. If there is a problem, Van Turner finds a solution. For many years, leaders in Memphis wanted to get rid of the Confederate monuments that adorned two of their public parks. In a city where two-thirds of the citizens are African-American, the presence of monuments to J. Harvey Mathes, a Confederate war correspondent and army captain, Jefferson Davis, who led the secession of the Southern states from the United States under the auspices of state’s rights to maintain slavery, and Nathan Bedford Forrest, a Confederate general infamous for slaughtering black soldiers and for later co-founding the Ku Klux Klan, was both offensive and nonsensical. While the Memphis City Council had voted in 2015 to remove the statutes from Fourth Bluff Park and Health Sciences Park respectively (and the County Commission passed a resolution supporting the City Council’s initiative), they were blocked from doing so by State law. In 2017, Mayor Jim Strickland had requested permission to remove them again. The Tennessee Historical September 2020
Commission rejected the request. Mayor Strickland recognized a loophole for removal of the statutes: selling the parks to a private entity would allow the City to skirt the Tennessee Heritage Protection Act, passed in 2013 and amended in 2016, which prohibits the removal, relocation or renaming of a memorial that is on public property. The City could pass an ordinance to transfer the property to a private entity, which could then effectuate the removal of the statues. However, to make the transfer, the City needed an entity to which to transfer the property. Van Turner had heard about this through the grapevine and knew he had the solution: form a nonprofit to purchase the parks, remove the statues and then maintain the parks for the public to enjoy. While the creation of the nonprofit would be easy, Turner knew that the controversy surrounding it could be great. As a husband and father, he had cause for concern. As a leader in the community, though, he knew that he needed to make hard decisions that could solve the issue. Turner reached out to several influential people whose names were given to him by people concerned about the City. He says, “I talked with them and asked if they were interested. Understanding that there would be some publicity—some positive, some negative. Would they be in a position to undergo all of that with their employers, their families? Once we established that everyone knew the risks, we formed Memphis Greenspace, Inc.” Memphis Greenspace, Inc. was created to promote parkland in Memphis so that people from all backgrounds can enjoy livable neighborhoods and share space where people of diverse backgrounds and different ages can come together for recreation, enrichment and community activities. Importantly, the organization quickly raised a quarter of a million dollars from private donors and to start the process to purchase the parks and get the statues removed. On December 15, 2017, Memphis’s City Council voted to sell Health Science Park and Fourth Bluff Park to a private nonprofit, on the condition that they would run them and keep them public. On Wednesday, December 20, Mayor Strickland signed the contract with Memphis Greenspace, and the Council ratified it. Later that evening, at 9:01 pm in a nod to “Take ‘Em Down 901,” Memphis Greenspace lawfully removed the Forrest statue. The others soon followed. Legal issues surrounding the transfer of the statues and the remains of Forrest and his wife were resolved earlier this year, and the bodies of Forrest and his wife will be reinterred elsewhere. When asked about the significance, Van Turner said, “I think it removed, symbolically, a barrier that held our City back.” The removal had a more personal meaning to him, though. “My father spent the majority of his youth in LeMoyne-Owen Gardens. The family later moved to Binghampton and at one point, he lived very close to the park. He recalled as a young man not being able to walk through the park without being accompanied by a white and not being able to sit in the park. That left a really bad impression on him and countless other black youth in the community.” The statue was removed on his father’s 74th birthday.
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B I L L & P H I L’ S G A D G E T O F T H E M O N T H By: Bill Ramsey Neal & Harwell
By: Phil Hampton Founder and CEO, LogicForce Consulting
APPLE MAGIC KEYBOARD FOR IPAD PRO: HONEYCRISP SWEET... OR SOUR APPLE? As all of you know by now, Bill loves his iPad Pro, but Phil considers it a “toy” as compared to his Windows-based Microsoft Surface laptop. Phil says he can use his Surface laptop to work rings around Bill on his iPad Pro. (There may be other reasons for this phenomenon, beside the choice of device.) Bill now claims that he will be on equal footing now that the iPad Pro is compatible with a Bluetooth mouse. And then, the Magic Keyboard with a built-in touch pad came along. Bill is in Nirvana, but does Apple’s newest dream product live up to its hype? Let’s look closer. I. Looks and Design The Magic Keyboard is a beautiful piece of hardware for sure. It is another device in a long line of good-looking Apple products. The keyboard attaches via a magnet and literally clicks into place. When you open it for use, it looks as if it is floating in air. It is very sturdy and the attachment is tight and hard to break loose. It is also takes a bit of force to open the keyboard after it is closed, but it does give you confidence that it protects a device that costs $1000 or more. And, the angle does not allow for a great deal of adjustment. But, since the setup is not “kickstand based,” it is very solid and balanced and is easily used in your laptop (but the device is not a laptop). The keys are beautifully backlit; and it is very easy to type on. The typing experience is sweet, like a good HoneyCrisp apple, but there are some drawbacks. A major source of complaints about this keyboard is its lack of function and media keys (volume, etc.). However, there is no problem with the “lag” you sometimes experience with Bluetooth keyboards. The Smart Connector with the iPad is sure and solid. The highly-touted trackpad works great. It takes full advantage of the mouse and trackpad capabilities added by the version 13.4 update of iPadOS. It supports multi-touch and the pointer on the cursor changes, depending on the context in which it is used. Bill likes to use his Pebble Mouse with his iPad Pro, and he thinks it works better than the trackpad. But, alas, the Pebble Mouse does not want to connect when the Magic Keyboard is attached, so he can give you a good price on a slightly-used Pebble Mouse. Another neat feature is the pass-through charge on the side of the keyboard, so you can connect external devices (a display, or an external drive) and still connect to a charger. II. Drawbacks The first drawback is the price. If you are as rich as Bill, that may not bother you. But, consider this. The darn thing costs $299. You can buy a Chromebook or a low-end Windows laptop for that price. But, on top of that, when you add in the cost of a basic iPad 12.9 at $999, the total cost of the tablet and keyboard is greater than many nice laptops, including the MacBook Air. Add in an Apple Pencil (another great device) and more memory in the iPad, and you have dropped a bunch of coin. A fully tricked-out iPad configuration can cut significantly into your gadget budget. In addition, the whole setup with the keyboard and the iPad Pro 12.9 is heavy. The combined weight tops three pounds. That is not much when you are sitting around home, waiting for the virus cloud to lift, but when it is being toted in on over-the-shoulder bag, it can be tiring, especially for an old guy like Bill. Also, the case does not protect your substantial investment as well as other cases, like the Brydge Pro+ (which also has a built-in trackpad) or the various Logictech Bluetooth cases; but it does an adequate job of protection. Finally, according to independent tests, the keyboard increases the drain on the iPad battery. The reduction is about 10 percent of the time needed for a recharge. III. Conclusion So, the question is, does the Magic Keyboard for the iPad Pro live up to the hype? Is it worth the money? Does it really turn your iPad Pro into a laptop replacement? Bill’s answer to those questions would be yes, yes and maybe. Phil’s would be no, no and definitely no. Most reviewers on YouTube are Apple freaks; and most all of them sing the Magic Keyboard’s praises. It is a beautiful and handy device. There are many things it does well. It is very handy for editing video. The Apple Pencil makes it easy to sign documents, take notes, and create beautiful artwork. (And the new handwriting recognition feature from the next iPadOS will make the Magic Keyboard even more compelling, when used in conjunction with the Pencil.) And, if, like Bill, you are into looking cool; the Magic Keyboard and the iPad Pro can make folks forget how ugly you are (even with a mask on). But, the Magic Keyboard is very expensive when combined with an already expensive iPad Pro. For $200 less, you can get a Microsoft Surface Pro 7 complete with Type Cover keyboard with a trackpad. And the Surface Pro can run full, completer versions of Microsoft Office. So, in the end, the beauty is in the eye of the beholder. To some, like Bill, the taste is sweet. To others, like Phil, the cost leaves a sour taste, like a green crab apple.
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DICTA
September 2020
WELL READ By: Jamie Ballinger Baker Donelson
THE EAST TENNESSEE VETERANS MEMORIAL: A PICTORIAL HISTORY OF THE NAMES ON THE WALL The East Tennessee Veterans Memorial: A Pictorial History of the Names on the Wall hits close to home in many ways. The book honors the lives of some of the 6,200 East Tennessee veterans who gave their lives from World War I through the Wars in Afghanistan and Iraq. Many of us have seen these names on the 32 granite pylons of the Memorial in World’s Fair Park. And, one of the Knoxville Bar Associations’ own, Jack “Nick” McCall, co-authored the book with John Romeiser, Professor Emeritus of French and Francophone Studies at the University of Tennessee. I was excited to read the book because of my history as a Normandy Scholar and also because both Nick and John are friends. Nick has been a frequent lunch companion for years and John was my professor at the University of Tennessee in the Normandy Scholars Program. He was with me in Normandy, France when I met my husband in 2000. Needless to say, I want to be upfront that this is not an unbiased review! Seeing the names on the Memorial is powerful. But, the book endeavors to provide a glimpse of the women and men behind the names using the vast materials gathered by the East Tennessee Veterans Memorial Association. These materials have been submitted by family members, friends, genealogists, historians, and veterans for the past 11 years. For most veterans featured, the write up of their life includes a photo, excerpts of the memories of their friends and family, local newspaper coverage at the time of their death, and the military circumstances of their death. As is expected, many of these veterans died doing extraordinary acts of bravery, and, upon reading it you are in awe of their courage and, very often, selflessness. The book, however, also shares the heartbreaking deaths of those, for example, who were never seen again in the Pacific when their ship was downed or those that died from illness. It recognizes that service and honor takes many forms. The book is 389 pages and is beautifully written. Though it is ripe with history, it is also accessible for those that might not typically choose a history book. It has a variety of poetry, both from veterans and notable authors, woven throughout. It is divided into 16 sections. Each section focuses on the stories of veterans in different contexts with the first section providing an indepth look at the fourteen East Tennesseans who received the Medal of Honor. The sections that follow are devoted to the veterans of the conflicts since World War 1, including World War II, the Korean War, the Vietnam War, and the Wars in the Middle East. The book also has sections devoted to East Tennessee Aviators, including Charles McGhee Tyson, and the Japanese Hell ships, September 2020
among others topics. The final section is The Roll of Honor, listing the 6,200 names of the veterans lost from World War I to the present day organized by County. Of course, anyone with a love of history will enjoy the book. But, I also believe anyone with a love of East Tennessee and its people would like it just as well. For me, the most moving part of the book were the photos. The young faces pictured, paired with the memories of their friends, so often reminded me of my own friends and neighbors. When reading a book this close to home, you know that those featured are related to folks you work with, shop with, and live close to. It helped me learn more about the veterans behind many of the Memorial Bridges and Highways we have in East Tennessee. There is a whole lot of story behind those green and white road signs. Most importantly, the stories of thse veterans reminded me how very connected we all are and how precious our time together as a community is. East Tennessee is a place that many brave men and women called home and never returned. This book sees that their lives, not just their deaths, are remembered.
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YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris Lincoln Memorial University Duncan School of Law
YOU KNOW IT’S ALL ABOUT THE MASKS, ‘BOUT THE MASKS . . . Like educators all across our great nation, I’ve spent much of the past six months teaching online and trying to figure out how to teach online, in that order. As a teacher of constitutional law, I’ve also spent a great deal of time fielding questions about the various measures that various governments have taken to combat the Covid-19 pandemic—especially mandates to wear masks. It’s always about the masks. Usually, these questions begin: “Is it constitutional for the government to . . .” In general, my answer has been “yes.” This is because of something called “the police power,” the inherent power of every sovereign state to protect its own people. Note the word “state.” States possess all of the powers of any sovereign government, limited only by the U.S. Constitution. In contrast, the national government has limited, enumerated powers, which do not include a general police power. That’s why almost all government efforts to fight the pandemic have emanated from the states. This is not to say that the national government has no role to play. It does: The Feds can lead, co-ordinate, stockpile, fund, support science, and set a good example. But the states are the sharp point of the spear. These concepts have been recognized for well over a hundred years, most notably in 1905, when the United States Supreme Court acknowledged the power of state governments to meet public health emergencies. At the turn of the twentieth century, the enemy was not a novel coronavirus, not a new strain of influenza, but an ancient enemy: smallpox. If you don’t know what smallpox is, count yourself lucky. It’s a highly-infectious disease that caused untold misery and death, covering its victims with liquid-filled pustules that, once popped, often caused horrible scarring.1 The good news was that increasingly-effective vaccines were available in the United States. The bad news was that some people refused to be vaccinated. As we’ve all learned lately, vaccines can protect all of society, especially those who cannot be vaccinated (babies, people with medical conditions) only when something called “herd immunity” is achieved. When a significant majority of people are immune, the rate of new infections become low enough that the few remaining outbreaks can be quickly eradicated. Which is why many states enacted compulsory vaccination statutes in the nineteenth century. And, of course, anti-vaxxers challenged those laws. In 1905, the Supreme Court heard the case of a man who claimed that the Commonwealth of Massachusetts’ vaccination law was unconstitutional. The Court disagreed, recognizing the state’s inherent power to protect the public from infectious disease. While the case is over a hundred years old, it is still good law, as noted in a recent opinion by Tennessee Attorney General Herbert Slatery: “Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’ Jacobson v. Massachusetts, 197 U.S. 11, 38, 25 S.Ct. 358, 49 L.Ed. 643 (1905).”2 General Slatery then concluded that, pursuant to both national
and Tennessee law, a governmental mandate that requires the general population to wear face coverings in public due to the health emergency caused by COVID-19 would be constitutionally defensible. The constitutionality of any particular governmental mandate, though, would depend on its specific terms and the underlying authority of the governmental entity issuing it.3 Note the caveat: A “governmental entity” that issues a mask mandate must have the authority to do so. Which brings us to the other major question I’ve been asked lately: “How can a bunch of unelected bureaucrats on the Knox County Board of Health tell me what to do?” Answer: Because that’s what the law says. Tennessee, like many states, follows a version of the Dillon Rule, which gives the state government control over municipal governments. I’m glossing over some complexity here, but the short version is: 1) all state power in Tennessee ultimately resides in Nashville; 2) municipalities can only exercise those powers granted by the state government; 3) any conflict between state and local governmental action will be resolved in favor of the state. In our present situation, the Tennessee General Assembly has granted broad emergency power to the governor and the governor has, through several executive orders, delegated some of that power— specifically, rule-making authority—to local public health departments. In Knox County, Section 38-32(f ) of the County Code provides that the public health department must follow the direction of the Board of Health. All of this is set out in great detail in the relevant order of the Board of Health, Regulation 2020-1, which is available online: covid. knoxcountytn.gov/board-of-health. In sum, the Board of Health’s authority comes from the state, through the governor, and from the county, through the Knox County Commission. So, while the members of the Board are not themselves elected by the public, the public did elect the officials, state and local, who gave the Board its emergency power. If the public doesn’t like what the Board is doing with that power, the public can contact the relevant elected officials and tell them about it. And ultimately, of course, there’s always the next election. In the meantime, it’s the law and it’s constitutional: Wear your mask.
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A teenaged George Washington contracted smallpox on a trip to Barbados. He survived and suffered only minimal scarring. Much worse was smallpox’s other major non-lethal effect: blindness. We should all be grateful that Washington obtained immunity from the disease prior to the Revolution and without major disfigurement or loss of sight. State of Tennessee, Office of the Attorney General, Opinion No. 20-14, Constitutionality of Governmental Mandate to Wear Face Coverings, July 24, 2020, 5 (quoting South Bay United Pentecostal Church v. Newsom, 140 S.Ct. 1613, 1613-14 (2020) available at: tn.gov/attorneygeneral. Id. At 8-9.
Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. 26
DICTA
September 2020
TIME OUT By: Ann Short The Bosch Law Firm
APPRECIATION Go along with me for a few minutes and do exactly as I ask – please. Go buy a package of 5-flavor Life Savers. Seriously, don’t read any further until you have pack of Life Savers. Now, round up two or three friends or children who (to your knowledge) are not COVID infected. Unroll the entire package of Life Savers and place them randomly on a plate in the middle of your group. Instruct the participants: “Shut your eyes, pinch your nose, and pick one of the Life Savers from the plate. Keeping your eyes shut and nose closed off, put the Life Saver in your mouth.” Continue the instructions: “Move the Life Saver around in your mouth, as you normally would. Notice how the candy tastes.” Final instruction: “Now, release your nose and breathe normally.” Ask each participant: “What flavor of Life Saver do you have in your mouth?” What just happened? If your participants followed along, they should report that with their eyes shut and nose pinched, the pieces of candy had a general sweet taste. When they released their noses and breathed normally, they should say they could smell and taste the Life Saver’s flavors: cherry, orange, pineapple, lemon, and lime. Smell, taste, and flavor. There are five tastes: sweet, sour, bitter, salty, and umami. Taste is the perception produced or stimulated when a substance in the mouth reacts chemically with taste receptor cells located on taste buds in the oral cavity, mostly on the tongue. Flavor, however, is a combination of taste and smell. That is, taste, along with smell, determines flavors of food and other substances. Try to imagine losing your sense of smell. The simple pleasure of smelling coffee brewing, bacon frying, or a newborn baby – gone. Not being able to smell smoke or a skunk to avoid something dangerous or unpleasant. The scientific name is anosmia, and it can disrupt every aspect of life from the practical to the emotional. Some people are born with the condition. Others suddenly lose olfaction because of a head injury, a nasal tumor, radiation, or viral infections. By now, most of us have heard or read that a significant percentage of COVID-19 patients have anosmia. Scent lodges itself largely in the long-term memory system of the brain. For that reason, the sense of smell can transport us to other places and call forth memories of other people. The scent of Old Spice aftershave always reminds me of my father; the smell of Elmer’s glue takes me back to grade school; and I keep a small tin of cherry pipe tobacco to remind me of Bob. Having those connections severed can be quite overwhelming. As Rudyard Kipling wrote, “Smells are surer than sights and sounds to make your heart-strings crack.” Doctor Jayant Pinto has observed, that of all the senses, “smell is the most undervalued and under-appreciated – until it’s gone.”1 Depression frequently follows anosmia. Some of you may recall Michael Hutchence, an Australian musician, singer-songwriter and actor. He co-founded the rock band INXS and was the lead singer and lyricist of INXS from 1977 until his death. In August 1992, Hutchence and a female September 2020
companion were walking late at night on a street in Copenhagen after drinking heavily. Hutchense refused to move for a taxi. The taxi driver then assaulted him, causing him to fall backwards and hit his head on the roadway. Hutchence suffered a fractured skull in the altercation but did not immediately seek medical assistance. As a result, his fractured skull left him with an almost complete loss of the sense of smell. This injury led to periods of depression and increased levels of aggression, ending with his suicide in 1997. The COVID-19 pandemic has upended our sense of normality. There are, however, many messages in the mess. Appreciation is one such message. The sense of smell, I encourage you, should be appreciated and savored. When next you wake, take a few seconds, a few minutes, to “appreciate” the smell of the snoring dog in the bed, the coffee brewing, the bread in the toaster, the shampoo in a hot shower, a warm towel fresh from the dryer. And, when was the last time you paused to appreciate the smell of rain? During a thunderstorm, lightning can split oxygen and nitrogen molecules in the atmosphere, which recombine into nitric oxide. This substance interacts with other chemicals in the atmosphere to form ozone, which has a chlorine-like smell. Another rain odor is called “petrichor.” It is derived from a pair of chemical reactions. Some plants secrete oils during dry periods, and when it rains, these oils are released into the air. The second reaction that creates petrichor occurs when chemicals produced by soil-dwelling bacteria are released. These compounds combine to create the pleasant petrichor scent when rain hits the ground. “Stop and smell the roses” may be a cliché, but appreciating the meaningful things and people in our lives may play an even larger role in our overall happiness than previously thought. Rutgers University psychology professor Nancy Fagley administered a survey measuring levels of appreciation, which Fagley defines as “acknowledging the value and meaning of something—an event, a behavior, an object— and feeling positive emotional connection to it.” This phenomenon is distinct from gratitude, Fagley says, which is a positive emotion directed toward a benefactor in response to receiving a gift of some sort. What Fagley discovered is that appreciation appears to be twice as significant as gratitude in determining overall satisfaction with life.2 As for practicing appreciation on a daily basis, Fagley suggests focusing on and valuing what we have, spending time outdoors, and reflecting on our blessings and relationships with others. To that list, I add, “Don’t forget the Life Savers. Stop and smell the Life Savers!” 1 See https://www.theatlantic.com/health/archive/2014/10/the-eerie-relationshipbetween-smell-and-death/381057/. 2 See https://greatergood.berkeley.edu/article/item/a_scientific_reason_to_stop_ and_smell_the_roses.
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BENCH AND BAR IN THE NEWS How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to Marsha Watson at mwatson@knoxbar.org. CHANCELLOR MOYERS TO JOIN BERNSTEIN, STAIR & MCADAMS LLP Knoxville law firm Bernstein, Stair & McAdams LLP announced today that Knox County Chancellor, Michael W. Moyers, will join the firm effective January 22, 2021, upon his resignation, after having served on the Bench for over 14 years. Chancellor Moyers is the second Knox County Chancellor to join the firm with Chancellor Daryl R. Fansler having joined the firm in 2014 after his service of 16 years on the Bench. Chancellor Moyers will practice primarily in the areas of Mediation and Arbitration, General Civil Litigation, Appellate Advocacy, Family Law, and Zoning and Municipal Law. FREE LAW BOOKS AVAILABLE Free set of American Jurisprudence with beautiful binding. Not updated, but the set makes a great backdrop for portrait photographs, interviews, etc. Will deliver free to ground level of your Knoxville office. Call 423333-5360. Set is boxed. Will follow you to your Knoxville office for delivery. For space reasons need to get rid of the set ASAP. LOCAL ATTORNEY GLEN KYLE RECEIVES CERTIFICATION IN ELDER LAW The National Elder Law Foundation (NELF) – the only organization approved by the American Bar Association to offer certification in the area of elder law - announces that Glen A. Kyle of Knoxville has successfully completed its requirements and examination leading to such certification. Mr. Kyle is one of only fourteen attorneys certified in Elder Law in the state of Tennessee.Owner of the Franklin & Kyle Elder Law practice in Knoxville, Mr. Kyle has exclusively practiced elder law for seven years and focuses his practice on life care planning, Medicaid plan-
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ning and advocacy, estate planning (powers of attorney, wills, and trusts), conservatorships, probate, and trust administration. FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates. Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource at www.knoxbar.org. LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources. OFFICE SPACE AVAILABLE: • Downtown Office Space - Downtown attorney has office space available for rent at The First Horizon Building, 800 S. Gay St., 22nd floor. The rent includes phone and internet. Westlaw available. Email jfanduzz@gmail.com for inquiries • West Knoxville-Bearden Office Space - West Knoxville lawyer has office space for rent at 4008 Sutherland Avenue. The rent includes internet, ample parking and common area maintenance. Inquiries: leslieahull@gmail.com. • Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 900 sq ft. Office Space includes a reception area, conference room and work area for additional employees. Very Affordable Rate with a two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.
DICTA
September 2020
LONG WINDED By: Jason H. Long London Amburn
A SEPTEMBER TO REMEMBER My kids are getting to that age where, at least half the time, they are annoyed or embarrassed by me. Its ok. I get it. I was the same way when I was their age and, truth be told, I can be quite embarrassing and annoying sometimes. The thing that really sets my son over the edge is when I start quoting movies he and his sister have never heard of. He just rolls his eyes, and I am sure internally he is saying something to himself like “O.K. Boomer.” (Actually, I am a Gen Xer, the forgotten generation, and no one has come up with a cool derogatory phrase to encapsulate us yet). One of my favorite go to quotable movies is Office Space, a 1999 comedy, written and directed by Mike Judge, starring Ron Livingston as Peter, the sad sack white collar office worker attempting to navigate his mundane existence. At one point in the film, Peter goes to see a therapist, in the hopes he can cure the depression he feels from being stuck in a dead end, meaningless job. Peter explains to the therapist, “ever since I started working, every single day of my life has been worse than the day before. So that means that every single day that you see me, that’s the worst day of my life.” To which the therapist, ever the professional, responds “Wow, that’s messed up.” I thought of that quote recently because it seems to encapsulate 2020. Since March, I feel like the entire world is living through progressively worse and worse days. Confirmed COVID-19 cases (and deaths) continue to rise, there have been incidents of police violence and civil rights protests (I’m not saying a civil rights protest is bad – I think it is a very good thing. I just think it is bad that is has become necessary to engage in such protests to achieve civil rights), vicious and downright hateful political campaigns (especially here in Tennessee), hurricanes, flooding, earthquakes, fires, sand storms, economic collapse, soaring unemployment, and murder hornets (never forget the murder hornets) have all added their names to the litany of issues we have had to cope with on a daily basis, one problem piling on top of the other. My mom always told me that “God never gives you more than you can handle,” but it seems like the Lord has an awfully high opinion of us these days. Nonetheless, I am an optimist. I refuse to believe that things are ever as dark as they seem and I always think that a new day brings with it new hope. With that mindset, I can’t help but think that we are in for brighter days soon, and I am ready to welcome the coming month, September, with joy and verve. Mark my words, September will be the turning point when things get better. (Of course, I am also the guy who predicted Trump could never win elected office, and I encouraged my daughter to go to a trampoline party for a friend’s birthday, resulting in a broken ankle, so take what I say with a grain of salt). September is the month for love. So that right there should make you feel better. The official flowers of September are “Forget me nots,” “asters” (I hate to admit that I didn’t even know what an aster was. I had to look it up. They are basically purple daisies.) and “Morning Glory” – all are said to represent various forms of love. Admittedly, romance is September 2020
difficult in these days of social distancing. However, if you are looking to add that romance back in your life, embrace September. That’s what it is there for. Need further proof that September is an awesome month? The September birthstone is the sapphire, one of my all-time favorite gems. Did you know that the blue color of a sapphire comes from intervalence charge transfer, which is the transfer of an electron from one transitionmetal ion to another via the conduction or valence bond? I bet you didn’t. I copied that sentence from a Wikipedia page, have read it six times, and still don’t know what it means. It’s easier for me to believe that the blue hue comes from magical smurfs trapped inside. However the sapphire gets its color, it is supposed to represent energy and healing, something the world needs now more than ever. There are some great holidays to celebrate in September as well. Leading off the lineup is Labor Day. Put away the whites and the seersucker and celebrate a day off. As lawyers, we should all look forward to celebrating Constitution Day (the day our Constitution was ratified) on September 17. A personal favorite, sometime around September 22, we will celebrate the autumnal equinox, as summer transitions to fall. Big boys who sweat a lot are particularly excited about fall approaching. September 9 is National Teddy Bear Day, and September 16 is National Play-Doh Day (seems like a pretty big coup for the Play-Doh folks to have their own holiday). As great as all of these holidays are, I’m most looking forward to September 19, International “Talk Like a Pirate” Day. A number of historic events are worth remembering in September as well. On September 22, 1862, President Lincoln signed the Emancipation Proclamation. On September 6, 1901, President McKinley was shot at the Pan-American Exposition in Buffalo, New York (not really a cause for celebration, unless perhaps you were an overenthusiastic Theodore Roosevelt fan, but it does mark the last historically significant event to occur in Buffalo – no Dennis Francis, I do not count any of the Bills’ AFC Championships as historically significant events). On September 1, 1939, Adolf Hitler invaded Poland, sparking World War II. Certainly, that is no cause for celebration, but the unity of people across the globe rising up to fight Hitler and the Nazis is something we can take pride in. Finally, on September 11, 2001, al-Qaeda terrorists hijacked commercial airliners and flew them into the World Trade Center and the Pentagon. Again, the event itself was a dark day in our history, but it is the last time in my life that I can remember so many Americans being united for a common cause. September is going to be a good month. I can feel it. Maybe we won’t be back to normal, maybe we won’t have solved all of the world’s problems, but wouldn’t it be nice if we spent some time in September giving each other flowers to show our love, hugging tight to our old teddy bears, and, for just one day, talking like a pirate. Arrgh!
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LEGAL AID OF EAST TENNESSEE PRO BONO UPDATE Legal Aid would like to thank the members of our bar that continue to help our clients during this most unusual of times. The COVID pandemic has changed the way we serve our clients, and our pro bono attorneys have met the challenge of
accommodating these changes. In mid-June we held a telephone clinic in collaboration with students from both of our local law schools. The students conducted telephone intake then several of you provided telephone advice to these clients. This clinic provided a great experience for our law students and an opportunity for members of the bar to continue to provide pro bono services without seeing clients in person. Monthly veteran’s clinics came to a screeching halt in March, but with the help of Tracy Chain at the KBA and several dedicated pro bono attorneys, there was a virtual clinic on August 12 to help veterans with their legal problems. The outstanding support of our local attorneys has helped LAET continue to provide services to our most vulnerable neighbors through this pandemic. Thank you!
ANNUAL FALL HIKE - SATURDAY, OCTOBER 17, 2020 The Professionalism Committee invites members to the annual fall hike on Saturday, October 17, 2020. The destination is Hen Wallow Falls, a beautiful waterfall in the Great Smoky Mountains National Park featuring a 90-foot drop with excellent opportunity to see salamanders and fall in. Meet at the Cosby Picnic Area (near the entrance to Cosby Campground) at 9:00 a.m. The trailhead is the Gabes Mountain trailhead approximately 100 yards away from your parking space. Picnic to follow the hike at the Cosby Picnic Area. Just leave your car where it is. The roundtrip distance to the waterfall is 4.4 miles roundtrip and the hike is considered moderate in difficulty. You may bring snacks and water for hiking as well as food and your favorite beverage for the post-hike picnic lunch at the Cosby Picnic Area. Please confirm your participation and get directions by registering online (click on Oct. 17 on the event calendar at www.knoxbar.org). If you have questions about the hike, please contact Garry Ferraris at gferraris@ ferrarislaw.com. If you plan to bring food or drink for the picnic lunch, please let Chancellor John Weaver know what you plan to bring at john.weaver@knoxcounty.org. All are welcome to bring their family, and join us on Saturday, Oct. 17, 2020, for this special time of enjoying nature, comradery and good food! 30
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THE LAST WORD By: Jack H. (Nick) McCall Note: One of the glories of summer—every American summer—is baseball. As for so many things in 2020, this has been a summer like no other. Before coronavirus’ full impact hit Knoxville this spring, Nick McCall interviewed Tyler Chastain on coaching baseball. This is offered not just to tell Tyler’s story, but also in the fond hope that one day, we can all hear again the treasured sounds of a baseball bat cracking against a fast ball; the thump of a solid catch landing in an outfielder’s glove; and the cheers of a roaring crowd as a fast-running batter comes in to home base.
Q:
A:
Tyler, would you tell us what led you to coaching youth baseball?
TYLER CHASTAIN Bernstein, Stair & McAdams LLP
I always played baseball while I was in high school. As soon as I graduated law school, one of the partners at my first firm, Hodges Doughty & Carson, asked me to help him coach a youth team. A year out of law school, I started coaching at the West Hills rec park before I had kids. I did a baseball mission trip to Cuba for ten days before my kids were old enough to play; I kept playing until I was 30. My son Hudson was born in 1999, and I started him at Lakeshore in T-ball when he was three. I started coaching one of his teams up through 8th grade; we played at Lakeshore and Farragut. When he was 10, we started a local “travel ball” team; when he was 12, he started playing at CAK. Hudson went on to play at Transylvania University. Coach Tommy Pharr had won five state titles at Farragut over an eight-year stretch before CAK hired him. He let me use the field for practice when Hudson was in 5th grade. The next year, Tommy needed a coach for the 6th grade team. I took on CAK’s middle school program when Hudson was in 6th grade. This is now my tenth year of coaching at CAK. We had one team for the first two years; I have run two teams for the last eight years. Our Middle School program is grades 4-8. Our Junior Varsity team is 4th through 6th graders, and Varsity is 7th, 8th and high 6th graders. I especially like coaching middle schoolers. A lot of people don’t like to coach middle school. You’ve got such a wide range in that age segment. The span of ages run from some kids who are going to get their learning permits this summer, to kids who are going to turn ten during the year. My thing is to try to keep them interested in baseball. Baseball is a hard sport: it’s not one that you can just pick up and play if you’re not steadily practicing. (Even if you do practice, it’s not always fun.) Sometimes, I enjoy the younger kids the most; the things they say and do, I have to take a step back and wonder. At CAK, the high school program is very good. It’s won the last three State titles in a row, and Coach Pharr is just a tremendous coach. He gives me full rein to help the middle schoolers grow, and he gives us ample field time. We have an indoor batting dome; he lets us practice three nights a week. We practice during the season on Saturdays, too. If you’re not playing another sport, you can practice baseball year-round at CAK. I have three other coaches; the coaches are all dedicated, and it’s not what I’d call “daddy ball.” I haven’t had my son on the CAK team for six years. That gives me a little more credibility because I don’t have to worry about who gets to play. My coaches have sons, but they don’t coach their sons.
You know the saying that you have “Friday Night Lights” in football? Well, we have drizzly Wednesday nights in baseball. When you’re on the team, maybe you’ve got your mom there; sometimes, the game starts too early, and your dad can’t make it; you look in the stands, and there are maybe 15 people there. So, our goal is to make it fun for them and give them a chance to play. I could do other things, I’m sure, with my time. We haven’t had kids at home for three years now; my wife joins me to watch and help out with the games. We try to treat the kids like they are our own; that means that we try to impart discipline. When the kids come to practice, they have to wear their hats; they have to wear their shirts tucked-in. We stress: Look like you want to be out here. When the kids leave the middle school program, we want them to have had fun, and if they want to go on to play baseball in high school, they’ve got the foundation. We use the same vocabulary and the same drills that they will face on the first day of high school practice. If someone asks me, “What’s your record?,” I’m not worried about the record. We’ll load the kids up and go to Chattanooga to Baylor or McCallie. They have to learn to travel and pack their bags; they have to learn how to communicate and tell their parents what time they need to pick them up. They have to learn how to keep up with money and buy food before games. We do it all to give them something more than just, “Here’s a bucket of balls; play ball.” They’re only young once. The last thing I want is to have a kid say: “I haven’t had any fun, so I don’t want to play baseball.” Kids develop at different speeds. I have some of the 6th graders who are better than some of the 8th graders, but if that 8th grader sticks with it, he may be a great high-school player. Very few high-school players will play college baseball, so we try to keep the middle school program the best we can. At the end of the day, if they don’t like it and quit, they’re never coming back. You rarely see a child who quits in middle school ever come back to play again. I don’t allow parents to coach with me unless their sons have been in the program at least one year. I want to see how dedicated they are. The worst ride home for most kids is the one where they haven’t played well, and they’re going to hear all about it from their parents. There’s not one kid out there who’s trying to mess up. We try to create some separation with our parents to let the kids grow up a little. If you yell at them, they’re not going to come back. Unlike football—where there’s some distance and noise; the parents can yell all they want—in baseball, the parents are 10 feet away. (I tell some kids, “If I see you looking back at your parents after every swing, I’m going to take you out, and we’ll talk about it.”) If I see a kid who’s a high-school senior, and he still calls you “Coach,” even if he’s not playing ball anymore, you know you’ve left a memory.
“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 September 2020
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