DICTA.January 2016

Practice Tips: Global Becomes Local: Working with Interpreters . . . Page 9 Schooled in Ethics: Professional Conduct Obligations in Limited Scope Representations . . . Page 21

A Monthly Publication of the Knoxville Bar Association

January 2016

THE 2015 FRCP AMENDMENTS: CUTTING THE FAT

Photo Ops Husbands Win Ethics Bowl IX The husband’s team won Ethics Bowl IX and the members were: Joshua Ball, Joshua Hedrick, Stephen Ross Johnson, Jason Long, Hon. Gregory McMillan and Keith Stewart. The wives team included Laurie Ball, Kimberly Hedrick, Amy Benner Johnson, Carol Anne Long, Summer McMillan and Joanie Stewart. Special thanks to U.T. College of Law Professors Alex Long, Paula Schaefer, and Judy Cornett for their help in preparing for the Ethics Bowl competition, Emcee Steve Collins, Ask a Judge Lifeline and Panel Member Chancellor John Weaver and Ethics Panel participant Joe Jarret. The CLE Committee would like to recognize the following KBA members for their help in drafting the questions used in the Ethics Bowl: Samantha Parris, Ann Short, Paul Wehmeier, Stacie Miller, Deno Cole, Susan Herndon, Charles Young, Ken Hoffmeister, Judy Cornett, Paula Schaefer and Alex Long.

Barristers Elections The Barristers Annual Meeting, Elections & Holiday Party was held on December 9th. During the meeting, President Taylor Williams presented the 2015 President’s Awards to Kathryn Ellis and Heather Ferguson. The following members were elected to the Barristers Executive Committee: Samantha Parris, Vice President, Mitchell Panter, Secretary/Treasurer, Members-at-Large, Sarah Watson and Heather Ferguson. Rachel Hurt became President at the close of the meeting.

Believe in Yourself Trivia Champs Congratulations to the Team Believe in Yourself who won Team Trivia on December 1st. The team members were Spencer Fair, Kourtney Hennard, Daniel Swanson and David Watkins.

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DICTA

January 2016

In This Issue

Officers of the Knoxville Bar Association

January, 2016

COVER STORY 16

The 2015 FRCP Amendments: Cutting the Fat

5

President’s Message

9

Practice Tips

CRITICAL FOCUS President President Elect Treasurer Wayne R. Kramer Amanda M. Busby Keith H. Burroughs

E. Michael Brezina III S. Dawn Coppock Lisa J. Hall Dana C. Holloway

Secretary Wynne du Mariau Caffey-Knight

KBA Board of Governors Rachel P. Hurt Carrie S. O'Rear M. Samantha Parris Cheryl G. Rice

Immediate Past President Tasha C. Blakney

Keith D. Stewart Hon. Steven W. Sword Taylor A. Williams John E. Winters

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The Knoxville Bar Association Staff

What it means to be a Member of the “Knoxville Bar Association.”

Global Becomes Local: Working with Interpreters

Legal Update

Interesting Sixth Circuit Developments

Management Counsel: Law Office 101

Personnel Records: What to Keep, What to Shred

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Judicial News

21

Schooled in Ethics

24 Marsha S. Wilson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Wendy Williams Membership & Operations Coordinator

* QR Code * 27

Bar Associations Respond to Proposed Rule Changes Professional Conduct Obligations in Limited Scope Representations

Legal Myth Breakers

TRCP 6.01 and Statutes Of Limitation

Path to the Law Who Knew

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

Lacey Dillon Programs Administrator

Tracy Chain LRIS Administrator

Volume 43, Issue 1

DICTA is the official

DICTA

publication of the Knoxville Bar Association

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

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

Exceptions to this policy must be cleared by KBA Executive Director Marsha Wilson (522-6522).

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

January 2016

Kayla Swiney LRIS Assistant

Publications Committee Executive Editor Executive Editor Executive Editor Editor

J. Nicholas Arning, Jr. Cathy Shuck Chris W. McCarty Lee Nutini Heidi Barcus Melissa B. Carrasco Casey Carrigan Matthew Lyon Jack H. (Nick) McCall Angelia Morie Nystrom Katie Ogle Broderick Young Managing Editor Marsha Wilson KBA Executive Director

DICTA

6

Lawyer Hobbies

7

Attorney Profile

8

Governors’ Award Profile

14

Hello My Name Is

19

Tempus Fugit - Time Flies

20

Before the Bar

Greg Bennett - Skydiving Barristers President Rachel Hurt Dennis McClane C.J. Lewis

And so it begins

Hard-Working Foundations: Jobs You Won’t Find on Their Resumes

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Well Read

23

Long Winded

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Nice Niche

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Bill & Phil’s Gadget of the Month

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Guilty Pleasures Reversed

Thinking, Fast and Slow, Part 2 of 2 We Survived Tax Law

Amazon Echo

Holiday Bah-Humbug

COMMON GROUND 4 12 18 18 29 30 31

Section Notices/Event Calendar Legally Weird Barrister Bullets Word Play Bench & Bar In the News Pro Bono Project The Last Word

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EVENT CALENDAR & SECTION NOTICES

­event

Section Notices

calendar

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

Alternative Dispute Resolution Section The ADR Section has CLE programs planned for 2016. If you have program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Dana Holloway (643-8720).

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Solo Small Firm Section

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Barristers Planning Meeting

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Law Office Tech Committee

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Family Law Section CLE

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Professionalism Committee

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 further information on the Corporate Counsel Section, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148).

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Lunch & Learn

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Judicial Committtee

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Board of Governors Meeting

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CLE Committee Meeting

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

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Bar Leaders Meeting

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Access to Justice Committee

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

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 section or have suggestions for upcoming CLE programs, please contact the section co-chairs: Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123).

Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. For more information about the section, please contact Section Chairs LeAnn Mynatt (549-7000) or Jimmy Wright (637-3531).

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

Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Daniel Sanders (215-2327).

Juvenile Court & Child Justice Section Members of the KBA are invited to join the KBA’s Juvenile Court & Child Justice Section, formerly the Unmet Legal Needs of Children Committee. For information about the Section, please contact Joanie Stewart (215-2515).

Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and CLE. To have your name added to the section list, please contact the KBA office at 522-6522.

For more information about the section, please contact co-chairs Heather Anderson (934-4000) or Tripp White (712-0963).

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DICTA

February ■3

Fee Dispute Committee

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Solo Small Firm Section

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Law Office Tech Committee

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Professionalism Committee

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Barristers Meeting

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Lunch & Learn

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Judicial Committtee

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Board of Governors Meeting

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Real Estate Law

MARK YOUR CALENDAR Law Practice Today Expo April 21 & 22

January 2016

PRESIDENT’S MESSAGE By:

Wayne R. Kramer Kramer Rayson LLP

WHAT IT MEANS TO BE A MEMBER OF THE “KNOXVILLE BAR ASSOCIATION.” I have thought often of what I might say in my initial "President's do on our own, is be human. To be human requires community. It Message" after becoming the President of the Knoxville Bar Association requires us to live together, to laugh together, to love together, to (the "KBA"). In so doing, I focused on what contributes to who we are celebrate together, to grieve together. We simply cannot do those things as lawyers in this place where we practice our alone. It has never worked, and it never will. hat we do and how we do We stand on shoulders and our shoulders are a profession. The following represents my reflections on the subject as shared with the foundation for others. That is the way it has it shines a light on members of the KBA at its annual meeting held been, and that is the way it will always be. No Knoxville, and affects on December 11, 2015. computer, no technology, no phone system can As I was thinking about this morning, the what this place is, and how others change that reality. It is who we are as people, name “Knoxville Bar Association” kept coming across the state and country perceive and it is who we are as lawyers. It is what it to my mind. What does that really mean? means to be in an Association. our great city.

What does it mean to be a Member of this Bar? So, on this morning, December 11, 2015, I First, it is Knoxville, the community in look forward to joining with you as we go about which we live and work. It is our home. It is the community where we the business of the Knoxville Bar Association. Challenges lie ahead. raise our families. It is the community that molds who we are, how we There will be good days and days which are not so good for each one of practice law, how we interact with others, and how we see the world us individually, and for all of us collectively. As we join with each other around us. It is its own place, with its own culture, qualities and in this journey they call the law, I am convinced that if we remember, if characteristics. There are times when we are all thrilled to live here, and we remember that we are members of the Knoxville Bar Association, in no doubt, there are times we wish we could be somewhere else. But in the end all will be well. And if all is not well, then it is not yet the end. the end, it is in Knoxville where we have cast our lot, and it is here Thank you to those who have agreed to serve in leadership roles where we, as members of the Bar, are making a difference for our clients, with me. Thank you for this honor and thank you for this privilege. I our colleagues, and our community. We are not the Nashville, look forward to serving as your President in the coming year.

Chattanooga or Memphis Bar Associations or anywhere in between.

When we practice law. When we do good things. When we do not so good things. When we are good examples, and when we are not so good an example. It is here, in this place we call Knoxville, where such activities occur. So when we go about our daily routine and when we interact with other lawyers, litigants, and lay persons, we are representing this community. We need to always remember that. What we do and how we do it shines a light on Knoxville, and affects what this place is, and how others across the state and country perceive our great city.

But we are not just Knoxville. We are also the Bar. When we were sworn in, some of us many years ago, and others only earlier this fall, we took an oath. Among other things, that oath requires us to do good in the best possible way. And as members of the Bar, we must never forget upon whose shoulders we stand. Men and women of the Bar who have carried the torch, have laid the foundation, and have made possible so much of what we experience and hold dear today.

They were here, and they made a difference. They were here, and they helped others. They made us all better. They told us the stories.

They taught us the law. They are here. Some still in person, and others in spirit. But make no mistake about it, they are here. Yes, we are members of the Bar. It is a special group. We are fortunate to be members, and we must never forget that as well. For you see, the day will come when others in our profession will pass this way. Then, they will be the members of the Bar, and they will carry the torch based on the stories we tell, the things we teach them and the examples we set.

When one of us succeeds, we all succeed. When one of us falls, in a certain way, we all fall. When one of us does good, we all do good.

And in the end, we are also an Association. We are not alone. We are in it with each other. There are many things we can accomplish on our own. We can read. We can write. We can listen. But what we cannot

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January 2016

DICTA

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LAWYER HOBBIES By: Katie Ogle Haynes Meek & Summers

GREG BENNETT - SKYDIVING

When local attorney Greg Bennett began skydiving nineteen years ago, his interest was piqued when he overheard a conversation between two skydivers who were discussing their recent jump. Greg had previously made plans with friends to take a skydiving trip, but these plans never materialized, and Greg decided it was something he needed to do on his own.

“As bizarre as this sounds, I don’t remember very much about that first jump. The entire event was clouded by an overwhelming dose of adrenaline. I remember going through the 15 minute training session and the little Cessna that took us to 11,000 feet.”

“As one of the solo jumpers opened the door, I could feel the rush of cold air hitting my face and I realized that this was my moment.

With the two solo jumpers having already left the plane and attached firmly to my tandem master, we waddled nearer and nearer to the door.

Shortly after, the plane was gone and I was skydiving in open space.”

While Greg doesn’t remember many details of his first jump, he does remember how his love for skydiving began. “I have always been mesmerized by flying,” Greg recalls. “Even as a child, I still remember my first flight. I spent the entire time staring out the window of the plane in awe of the landscape below.”

After this first jump, which included a dive instructor strapped to him in a “tandem” jump, Greg began additional training to continue his passion for skydiving. He completed an AFF (Accelerated Free Fall) course that included seven jumps. These seven jumps begin with two instructors in the plane with the student, one on each side during a jump. The instructors hold onto you as you exit the plane, but once you have become stable in the air, they release their hold and you are skydiving. As you progress, the two instructors on the jump are gradually reduced to one instructor on the jump and then, toward the end of the training, the instructor remains, but you are exiting the plane, unassisted.

So, how many jumps has Greg made since that initial skydive nineteen years ago? 274. Surprisingly, this isn’t considered a lot in the skydiving world. Greg explains that most “good” jumpers will log 270 jumps in their first three years. However, he also credits his lack of jumps for his continued love of the sport, and unlike his first jump, he is now thrilled when the plane doors open at 11,000 feet.

“Skydiving is now what I had always anticipated it would be – an extension of my love of flying. Since I have truly shaken off the adrenaline (and it did not occur until about 50 jumps in), I now find a calming peace while in freefall. I can look out on the mountains of east Tennessee or the Atlantic coastline of Florida and see the beauty of what God has created.”

Greg is a member of the United States Skydiving Association,

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(USPA). Most drop zones require that active skydivers become members of this organization in order to be active skydivers. While Greg is not a member of any local club, he considers Skydive East Tennessee (SDET) as his home base.

“Even though we have not always been located in Sevier County, I have been jumping with this group of guys since my first jump in Tennessee. SDET is a corporate member of the USPA and as such abides by all of the safety rules and regulations required of a member drop zone. Most important to the novice skydiver is the required training of all tandem masters and pilots and the inspections and certifications required for planes and equipment. Once your skydive is complete and you are safely on the ground, none of this matters much, but, it’s still nice to know before you get in the plane.”

Greg has made jumps in Tennessee, North Carolina, South Carolina, Florida, Kentucky, Georgia and Nevada, but his most memorable jump occurred in the small town of Interlaken, Switzerland.

Greg explained that the town sits in a small valley, serviced by a lake and the Alps surrounding every side.

With 274 jumps under one’s belt, there are bound to have been moments when things did not go according to plan; however, Greg says that he has never had a major mishap, only a handful of fearful moments.

“I have had a spotter put us out of the plane so far off course that we never made our way back to the drop zone. I have been on a plane that developed mechanical difficulties and had to exit early. The pilot was able to limp the plane back to the drop zone, where it remained grounded for six weeks before being fixed. I have had a gust of wind collapse my canopy while attempting to land. Fortunately, it resulted only in a hard landing and not something more serious.”

Greg also stresses the importance of following safety guidelines and not taking unnecessary risks while on a jump. His goal is to continue skydiving until the younger of his two grandchildren turns eighteen and is able to skydive with him. His only modification over the last nineteen years has been the addition of ankle braces for added support during a landing.

So, what is Greg most commonly asked when someone finds out he is a skydiver? “People always want to know, ‘What color is your parachute?’- My answer, ‘royal blue.’ They inevitably then ask, ‘What about your reserve?’- My answer to that is ‘I don’t know, I’ve never seen it, and I’d like to keep it that way.’”

If you’re interested in completing your own jump, Greg is a great source of information, and could even be persuaded to log jump number 275. The approximate cost of a first jump is $225.00 for the jump, with video available for an additional fee. However, once you are released to jump on your own, the cost, depending upon drop zone and plane is only about $25.00 per jump. **Author’s Note: If any KBA member is persuaded to make their first skydive after reading this article, please submit photographs to DICTA for publication.

DICTA

January 2016

AT TO R N E Y P R O F I L E By:

Jamie Ballinger-Holden Baker Donelson

BARRISTERS PRESIDENT RACHEL HURT

If Rachel Hurt is just an acquaintance, you probably know that she is an attorney practicing medical malpractice and insurance defense with the firm of Arnett, Draper, and Hagood LLP, and that she is the new Barristers President. If you know Rachel well, however, you know that one of her favorite things is Disney – anything Disney.

When I first learned of Rachel's love of Disney, I found it a bit inconsistent. I first met Rachel in our trial practice class in law school in 2007. My first impression was that she was all business. She worked very hard. She took her classes seriously. She was a fierce competitor.

She was no-nonsense and intense. She is still all of those things. To me, Disney just seemed a little too unrealistic for her, a little too warm and fuzzy. Rachel always has both feet on the ground.

As my friendship with Rachel has grown over the years, I have come to understand that Disney is the perfect embodiment of Rachel.

Like any beloved Disney movie, Rachel leads a life that is well-planned, well-written, and has substance. It is full of detail, color, and laughter. It is award winning. But, most importantly, it is all heart.

Rachel primarily grew up in Mt. Juliet, Tennessee with her parents Gary and Linda Park and her brother Chris. After graduating from Friendship Christian High School, where she was selected as Homecoming Queen, she attended Syracuse University in New York where she graduated with honors in 2004, and served as the starting 2nd baseman for the Syracuse softball team. Rachel remains an avid Syracuse fan, and her leadership on the softball field remains a point of pride for her. She has also maintained strong friendships with her former teammates.

To honor her family's long history of service to our country, Rachel also served in the Air Force ROTC while at Syracuse. Though many people think that Rachel served in the armed forces, she tore her ACL and was honorably discharged from ROTC before she could serve. She also earned her Masters from Syracuse in Public Administration in 2004

January 2016

before deciding to attend law school at the University of Tennessee where she was a Member of the Tennessee Law Review.

After graduating law school in 2007, Rachel clerked with the Honorable Justice Cornelia Clark on the Tennessee Supreme Court from 2007 to 2009. Justice Clark remains a mentor to Rachel and, along with Rachel's mother, is one of Rachel's personal heroes. When Rachel's clerkship with Justice Clark ended in 2009, she joined the law firm of Arnett, Draper, and Hagood LLP. Rachel thrives in her practice and is passionate about the defense of her clients. Her personal motto is "get it done," and she does. She has a Martindale Hubbell AV Preeminent® Rating, and was named by Mid-South Super Lawyers as a Rising Star. She is one of those rare attorneys whose legal practice and passions dovetail. Rachel's love for defending hospitals and health care providers might very well come from her extensive exposure with each. Rachel has had nearly a dozen surgeries to repair numerous sports and other injuries.

The passion she puts into her practice is by no means dwarfed by her commitment to our profession. She is a member of the Knoxville Bar Association, the Tennessee Bar Association, and the American Bar Association, as well as the Hamilton Burnett American Inn of Court.

She is the former Chair of the Barristers Hunger & Poverty Relief Committee, and is a member of the 2015 Tennessee Bar Association Leadership Law Class. In 2012, she received the Donald F. Paine Volunteer Lawyer of the Year Award, and in 2013 received the Barristers President's Award. She is currently serving on the Tennessee Commission on Continuing Legal Education, and is an Adjunct Professor at the University of Tennessee College of Law.

Rachel's numerous accomplishments and accolades are proof of both her passion and abilities. Her heart, however, belongs to her husband, Adlai, and her 18 month old daughter, Olivia. Rachel and Adlai met at Syracuse and have been married seven years. They enjoy travel and golf and, of course, Olivia. Every night Rachel recites to Olivia her favorite quote by A.A. Milne: “You are braver than you believe, stronger than you seem, and smarter than you think. But the most important thing is, even if we're apart... I'll always be with you."

That is pure Disney movie magic.

For 2016, Rachel is focusing her passion on making the most of her year as Barristers President. She anticipates adding mini "Ted" talks to the Barristers' monthly programming to help young lawyers augment their skill set and develop professionally. She is also working on strategies to encourage more Barristers to do pro bono work, and she is committed to access to justice. Moreover, Rachel wants everyone to know that they are welcome at Barristers functions. Please plan on joining her for this exciting year of Barristers events and comaraderie.

DICTA

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GOVERNORS’ AWARD PROFILE By: Bill Vines Butler, Vines & Babb

DENNIS R. MCCLANE – RECIPIENT OF 2015 GOVERNORS’ AWARD

At the Annual Meeting on December 11, 2015, Dennis R. McClane was awarded the Governors’ Award, which is the highest award of the Knoxville Bar Association. The Governors’ Award has been designated by the Knoxville Bar Association as recognizing those attorneys who are felt by their peers to be outstanding and role models.

A plaque was given to Dennis R. McClane recognizing him “…for the distinction and honor brought to the profession by enduring faithful and distinguished service in this community.”

Dennis graduated with honors from the University of Tennessee with a BS degree and subsequently received his law degree from the University of Tennessee College of Law in 1976. He practiced with the firm of Baker, Worthington, Crossley, Stansberry & Woolf from 1976 to 1994. In 1994, he became one of the founding members of Woolf, McClane, Bright Allen & Carpenter, a firm which presently is composed of 31 lawyers.

Since its founding, Dennis McClane has served as the Chief Manager of the Woolf McClane firm, and has always been a member of the firm’s Executive Committee. Further, he has always served as Chairman of its Business Practice Section. His individual practice includes corporate, health care, real estate, mergers and acquisitions, and commercial transactions. He was named Knoxville BEST LAWYERS® Corporate Lawyer of the Year for 2009 and 2015. For years he has been listed in BEST LAWYERS® in America.

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He has served the Knoxville Bar Association for many years. He was a member of the Board of Governors from 1989-1996 and served as President of the Knoxville Bar Association in 1995. He has given freely his time and served on the Board of Directors of the Knoxville Legal Aid Society for eight years. He is a member of the American Health Lawyers Association, the Health Care Sections of the American Bar Association, Health Care Sections of the Tennessee Bar Association, the Business Law Section of the American Bar Association, and the Business Law Section of the Tennessee Bar Association. Presently, he is on the Executive Committee of the Tennessee Bar Association Business Section and has served as Chairman of the TBA Business Section.

Further, he has been an Adjunct Professor at the University of Tennessee College of Law. He was a member of the Leadership Knoxville Class in the year 2000. He has served on the Board of Directors of the Knoxville Bar Foundation for five years and served as its Chairman for the years 2006 – 2008.

He has “given back” to the University of Tennessee College of Law where he obtained his degree, serving on the Dean’s Circle and the Alumni Advisory Council. He has been a member of the University of Tennessee Knoxville Chancellor’s Associates and served as Chairman in 1997-1998.

In the community he has been quite active and served on the Advisory Board of the Knoxville Area Command of the Salvation Army and served as Chairman in 2001 and 2002. He is on the Board of Directors of the Knoxville Habitat for Humanity and on the Board of Directors of WDVX Radio Station. He is active in Sequoyah Hills Presbyterian Church, having served as Deacon and Elder.

Dennis and his wife, Pat, have been married for over 40 years. If there is any “free time” you can see them out walking with their two Labrador Retrievers, Graci and Sadie. The presenter described him as a “quiet tiger.” He drives a large pickup truck and is a devoted fan of country music! He is an interesting person.

Dennis McClane is an exemplary member of the Knoxville Bar Association and is deserving of its highest honor.

DICTA

January 2016

PRACTICE TIPS By:

GLOBAL BECOMES LOCAL: WORKING WITH INTERPRETERS In Knox County, the surrounding areas, and Tennessee, there has been a substantial increase in foreign-born populations. The increase can be attributed to many factors including the proximity to Oak Ridge National Laboratory, the University of Tennessee (faculty, staff and students), and the increased undocumented population. All of these factors significantly impact the ways in which lawyers, from all areas of the law, practice and interact with foreign-born individuals and specifically individuals whose second language is English. This article addresses the ethical implications and logistics of working with interpreters.

Working with Interpreters The Tennessee Supreme Court Rules 41 and 42 provide guidelines for removing language barriers to facilitate full participation in court proceedings in Tennessee. In summary these rules provide that “it is essential that the resulting communication barrier be removed, as far as possible, so that these persons are placed in the same position as similarly situated persons for whom there is no such barrier.”

Lawyers who have not worked with an interpreter before may not be familiar with the different types of interpretation and the difference between interpretation and translation. There are two main modes of interpretation: (1) Simultaneous Interpreting: the interpreter speaks after the source-language speaker has finished speaking. It often seems as if the interpretation is occurring at the same time.

(2) Consecutive Interpreting: the speaker frequently stops and the interpreter then steps in to provide what was said into the target language. Some interpreters will take notes during this process to make sure the details of the content are properly conveyed.

See Tennessee Supreme Court Rule 41, Terminology.

Interpretation occurs when an interpreter translates orally, while a translator interprets written text. Interpreting and translation require different skill sets meaning that a good interpreter will not necessarily be good at translating documents.

There are a few things that you should remember when using an interpreter: speak directly to the client and explain to the client that s/he should look at you as well, do not ask complex run-on questions, keep statements short, simple and open-ended, avoid idioms and terms of art, and try to explain legal terms in plain language. Remember that your client may not have extensive knowledge about the legal institutions in Tennessee and Knoxville. Accordingly, there are certain concepts you will have to explain in detail.

Pre-session with Client: Explain to the client the role of the interpreter. Make sure the client is comfortable with the interpreter and the situation prior to moving forward to substantive questions. Be aware of cultural issues or obvious sensitive situations (a male interpreter if a female client will have to recount gender related abuse or trauma).

Pre-session with Interpreter: Always explain to the interpreter the purpose of the interview prior to the meeting. If you are in court, you may want to provide the interpreter with a copy of case caption, so that the interpreter can familiarize himself with the parties and nature of the case.

If you are conducting an interview with a witness or client, it is helpful to tell the interpreter what the case is about and provide the names of any groups, or people that will be brought up during the course of the interview. In addition, remind the interpreter of the attorney-client privilege. Certified interpreters have their own code of confidentiality but if the interpreter is a volunteer, you will want them to sign an internal confidentiality agreement.

Common Pitfalls…

Utilizing family members or interested parties as interpreters: As an attorney, we may want to rely on an individual that our client brings along to a meeting to interpret. Attorneys must be careful in understanding that January 2016

Karla McKanders

Associate Professor of Law University of Tennessee College of Law

a third party may have interests that are adverse to your client’s interest and that the client’s interpreter is not bound by the same confidentiality rules as a third party interpreter. Tennessee Supreme Court Rule 41, Canon 5 Confidentiality (Interpreters shall protect the confidentiality of all privileged and other confidential information).

Friends and family members have a vested interest in the case and will often attempt to answer for the client, or change what the client is saying to make it sound better. This can be extremely detrimental to fact finding, as it could cause lawyers to miss an important piece of information. Further, the client may need to provide details that they are not comfortable discussing with friends and family. Tennessee Supreme Court Rule 41, Canon 3, Impartiality and Avoidance of Conflict of Interest, (stating “it is essential that the resulting communication barrier be removed, as far as possible, so that these persons are placed in the same position as similarly situated persons for whom there is no such barrier”).

Summation Interpretation: Try to avoid having the client and/or witness speaking for long periods of time. This practice can lead to the interpreter summarizing the speaker’s content. As lawyers, the details of a witness or client statement can dramatically affect outcomes for our clients. Accordingly, it is important to stop your client and the interpreter so that the interpreter can remember as many details as possible.

Understanding differences in dialect: There are many nuances in languages and dialects that can impact the interpretation that you receive.

Lay people often make assumptions regarding the language and/or dialect a person speaks. For example, there are many different dialects of Arabic.

Individuals from North Africa, Egypt, and the Middle East all speak different dialects of Arabic, which may affect the interpretation. Another example, frequently encountered in Knox County, occurs with indigenous Mayan dialects that are drastically different than Spanish. Some of the dialects are Q’anjob’al, Mam, and Quiché. To avoid this mistake, which can cost you a lot of time, you can schedule a telephone pre-session with the interpreter and your client or witness to make sure that they speak the same dialect.

Role of Interpreter as Cultural Broker: Some interpreters who are familiar with the witnesses country of origin or culture may attempt to correct the client or witness or provide additional information to help explain or clarify your client’s statement. Canon 7 of the Tennessee Supreme Court Rule clarifies the Scope of Practice stating “Interpreters shall limit themselves to interpreting or translating, and shall not give legal advice, express personal opinions to individuals for whom they are interpreting, or engage in any other activities which may be construed to constitute a service other than interpreting or translating while serving as an interpreter.”

When working with clients from other countries, language may not be the only barrier you encounter. There are also cultural practices embedded within language that impact the manner in which your client and witnesses communicate. While you may interpret certain non-verbal cues as dishonest, rude, arrogant, or indifferent, there may be cultural differences that impact the message your client is conveying.

How to Find an Interpreter?

When searching for an interpreter you must consider the type of certification and experience an interpreter may have. The Tennessee Administrative Office of the Courts provides an extensive database of court certified interpreters that can be used in court or hired separately. (http://www.tsc.state.tn.us/programs/court-interpreters/find-court-interpr eter) Using a court certified interpreter guarantees that the interpreter has received proper training and understands ethical rules when interpreting.

The court interpreters are also required to participate in continual training programs to ensure that they are keeping up with the industry standards for interpreting.

American Bar Association Spanish for Lawyers Phrase Book This is often a great resource to supply Spanish interpreters prior to your interview. http://shop.americanbar.org/eBus/Store/ProductDetails.aspx? productId=213047

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January 2016

L E G A L U P DAT E By: : Regina Koho Attorney, Tennessee Valley Authority, Office of the General Counsel1

INTERESTING SIXTH CIRCUIT DEVELOPMENTS In this month’s column, I focus on significant developments in the Sixth Circuit, specifically an update on a previously highlighted case and recent en banc activity.

I.

Certiorari Granted in Affordable Care Act Contraceptive Mandate Challenges

In the October column, I wrote about Michigan Catholic Conference v. Burwell, where the Sixth Circuit addressed the opt-out for non-profit employers objecting to the Affordable Care Act’s mandated contraceptive coverage.2 There, the court reaffirmed its pre-Hobby Lobby holding that this accommodation, relieving the challengers of their burden to provide coverage after notifying the Secretary of Health and Human Services of their objections, did not “substantially burden” their exercise of religion under the Religious Freedom Restoration Act.3 As I noted in October, petitions for certiorari in identical cases were already pending before the Supreme Court, and like the Sixth Circuit’s, the government prevailed in each. The Eighth Circuit subsequently created a circuit split by deciding cases in favor of the mandate’s challengers.

On November 6, 2015, the Court granted certiorari. Arguments will likely be heard in the spring.4 II.

En Banc Activity

First Amendment In Bible Believers v. Wayne County, the court grappled with the “heckler’s veto,” which “occurs when police silence a speaker to appease a crowd and stave off a potentially violent altercation.”6 In this case, an evangelical Christian group known as “the Bible Believers” sought to proselytize at the Arab International Festival in Dearborn, Michigan.7 Their mode of sharing their beliefs, however, consisted of “hurl[ed] words and display[ed] messages offensive to a predominately Muslim crowd,” such as “You believe in a prophet who is a pervert.”8 Not surprisingly, these messages were not well-received, and a crowd of mostly adolescent listeners began to react violently by shouting and throwing various items at the plaintiffs.9 Although there was a moderate attempt by police to temper the situation, the plaintiffs were eventually escorted from the Festival because their conduct was “affecting public safety.”10 The plaintiffs sued, alleging that their free speech rights had been violated.11 The district court granted the government’s motion for summary judgment, and the Sixth Circuit, in a split decision, affirmed.12 En banc review was granted, and arguments heard on March 4, 2015.

On October 28, 2015, a majority of judges reversed and remanded.13 The majority found that the plaintiffs’ removal from the Festival “effectuated a heckler’s veto by cutting off [their] protected speech in response to a hostile crowd’s reaction.”14 Because the majority also concluded the applicable law was clearly established at the time,15 it found monetary damages warranted.16 Five separate opinions were filed,17 the main disagreement being with the majority’s imposition of damages. The dissenters distinguished between the right outlined by the majority – “the general right to free speech in spite of a crowd’s outrage” – and “the more specific right of a speaker to be free from an effective removal when his safety and the safety of others have been compromised.”18 The dissenters found the latter far from clearly established.19 This case highlights the challenges facing courts when trying to January 2016

balance the vindication of fundamental rights with the need to “give[] government officials breathing room to make reasonable but mistaken judgments.”20 Due to the nature and number of dissents, the case, if appealed, may prove cert.-worthy – the Supreme Court generally views awards of monetary damages against governmental officials quite skeptically.

Second Amendment 18 U.S.C. § 922(g)(4) prohibits a person “who has been committed to a mental institution” from obtaining a firearm. Federal law allows such a person to later establish that they are fit to possess a firearm based on certain criteria.21 Rather than fund this “relief-fromdisabilities” program itself, the federal government provides incentives to states to establish programs, but some states, such as Michigan, have declined to do so.22 In 1986, Michigan resident Clifford Tyler was briefly committed to a mental institution after “an emotionally devastating divorce.”23 Despite having no trouble since then, Tyler was unable to purchase a firearm in 2011 due to his previous commitment.24 Tyler challenged § 922(g)(4) in district court, arguing that, as applied to him, it violated the Second Amendment.25 The district court granted the government’s motion to dismiss.26 A three-judge panel reversed and remanded. The opinion’s author, Judge Boggs, determined as a matter of first impression that strict scrutiny applied to Second Amendment claims, despite the fact that most circuits applied intermediate scrutiny.27 The court determined that it need not decide whether, as a general matter, § 922(g)(4)’s prohibition was impermissibly broad, as Congress had already done so by creating a relief-from-disabilities program.28 And because Tyler’s rights turned on whether his state had accepted federal funds to implement this program, § 922(g)(4) lacked narrow tailoring as applied to him and on the record before the court.29 On remand, however, the government would have the option of presenting evidence contesting Tyler’s factual allegations that he could safely possess a firearm.30 Judge Gibbons filed a brief concurrence, agreeing with the ultimate decision to reverse, but contending that it was unnecessary to decide which level of scrutiny to apply because both parties agreed on intermediate scrutiny, and Tyler prevailed under either framework.31 She also doubted whether strict scrutiny should apply in light of “the general trend of our sister circuits.”32 Arguments were held before the en banc court in October.33 The judges seemed particularly interested in what would happen if they ruled in Tyler’s favor, i.e., would the holding be limited to § 922(g)(4), or would it open the floodgates to other challenges? For example, one judge asked whether there would be any principled basis for precluding a non-violent felon (say, a computer hacker) from arguing that a categorical prohibition against their possession of a firearm violated the Second Amendment. Judge Sutton wondered whether the constitutional mess could be avoided through application of disability-rights law, but certain judges did not seem inclined to go that route because it had been neither raised nor briefed. In sum, the arguments did not strongly indicate which way the court will come out.

Regardless of the outcome, Judge Boggs’s opinion is worth a read for anyone interested in the development of Second Amendment law in the lower courts post-District of Columbia v. Heller.34 And should the en banc court go with strict scrutiny, the case may be headed to the Supreme Court.35

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L E G A L LY W E I R D By: Latisha J. Stubblefield Pilot Travel Centers, LLC

Snakes on a Plane, Turtles in my Pants…

When I hear the term “smuggler,” I immediately, correctly or incorrectly, associate this with drugs. However, apparently people smuggle all types of things… including reptiles. (Ew.) In the United States, it is illegal to export wildlife from the U.S. without a permit from the government. Is THIS what Snakes on a Plane is about? Reptile smuggling was certainly never one of those steamy storylines covered in Bad Boys I or II (side note: Bad Boys III and IV are set for release in 2017 and 2019). I digress.

Canadian Kai Xu, 27 years old, was caught last year at the Michigan-Canadian border with … wait for it… FIFTY ONE live, plastic-wrapped turtles taped to his legs. Kai Xu was attempting to smuggle said turtles from the U.S. into Canada. Apparently turtle smuggling is a relatively profitable business, particularly when you’re smuggling said turtles to China, where they are worth two to three times their American value. No, I do not know what they do with the turtles in China. Nor do I care to make that Google search to find out. I’m going to embrace the unknown on this one. It just seems safer.

Xu’s attorney explained that he “regularly deals in turtle shipments worth $30,000, $80,000, or $125,000.” His practice was to order the reptiles online and pick them up in the U.S., where he either shipped them straight to China or returned to Canada with them. Either method is illegal.

Authorities had been watching Xu in Detroit, where they noticed him hanging around UPS trucks and reemerging with “irregularly shaped bulges under his sweatpants.” I forgot to mention that Xu is apparently an idiot. I mean, what was his game plan? Was he just going to walk across the border into Canada? I would imagine that sitting, in any mode of transportation, would be extremely uncomfortable when you have FIFTY ONE turtles taped to your legs.

Xu has since pled guilty to smuggling and/or attempting to smuggle 1,000 reptiles in all. He now faces up to ten (10) years in prison for his guilty pleas. He is awaiting sentencing. Perhaps low-hanging fruit, but I’m going to assume those weren’t snapping turtles taped to his legs … ouch.

And to clarify the title, I do not have, nor will I ever have, turtles in my pants. Or any reptiles for that matter.

Legal Update

(Continued from page 11)

1 Any opinions expressed in this article are those of the author and are not attributable to the Tennessee Valley Authority.

2 Regina Koho, Post-Hobby Lobby Developments – Religiously Affiliated Non-Profits’ Challenge to the Affordable Care Act’s Contraceptive-Mandate Accommodation Rejected Again by the Sixth Circuit, DICTA, Oct. 2015, at 10.

3 Id. 4 Lyle Denniston, Briefing schedule set for birth control cases, SCOTUSBlog (Nov. 17, 2015, 5:01 PM), http://www.scotusblog.com/2015/11/briefing-schedule-set-for-birthcontrol-cases/#more-234682.

5 805 F.3d 228 (6th Cir. 2015) (en banc).

6 Id. at 235.

7 Id. at 235-36.

8 Id. at 238.

9 The facts were largely taken from a videotape of the incident provided by the plaintiffs.

Id. at 238 n.8.

10 Id. at 239-40 (internal quotation marks omitted).

11 Id. at 242. The plaintiffs also alleged free exercise and equal protection claims, but for brevity’s sake, I focus on the plaintiffs’ free speech claim because the legal analysis for this claim was key.

12 Id. 13 Id. at 233.

14 Id. at 242-43.

15 Id. at 252-55, 261-62. The majority held that both the individual officers and Wayne County were liable for damages. Id. at 261-62.

16 In cases brought under 42 U.S.C. § 1983, a government official may not be held liable for damages “unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct,” Bible Believers, 805 F.3d at 264 (Griffin, J., concurring in part and dissenting in part), a defense known as “qualified immunity.”

17 Bible Believers, 805 F.3d at 262-64 (Boggs, J., concurring); id. at 264-66 (Griffin, J., concurring in part and dissenting in part); id. at 266 (Sutton, J., concurring in part and dissenting in part); id. at 266-73 (Gibbons, J., dissenting); id. at 274-78 (Rogers, J., dissenting).

8 Id. at 268 (Gibbons J., dissenting).

12

See id. at 264-66 (Griffin, J., concurring in part and dissenting in part); id. at 266 (Sutton, J., concurring in part and dissenting in part); id. at 268-70 (Gibbons, J., dissenting).

20 Id. at 267 (Gibbons, J., dissenting).

21 Tyler v. Hillsdale Cnty. Sheriff’s Dept., 775 F.3d 308, 312 (6th Cir. 2014).

22 Id. at 312-13.

23 Id. at 313.

24 Id. at 314.

25 Id. at 311.

26 Id. at 315.

27 Id. at 323. When strict scrutiny is applied, the government must meet a higher threshold—it must show that “a challenged law furthers a compelling interest and is narrowly tailored to achieve that interest.” Id. (internal quotation marks omitted).

Intermediate scrutiny requires that the challenged law “be substantially related to an important governmental objective.” Id. (internal quotation marks omitted). Judge Boggs determined that strict scrutiny was more appropriate primarily because the right was a fundamental one and the Supreme Court had suggested that “there is a presumption in favor of strict scrutiny when a fundamental right is involved.” Id. at 326-27.

28 Id. at 332-33.

29 Id. at 334.

30 Id. at 344.

31 Id. at 344 (Gibbons, J., concurring).

32 Id. 33 The arguments occurred on October 14, 2015, and can be accessed on the Sixth Circuit’s website at the following link: http://www.ca6.uscourts.gov/internet/court_audio/ aud2.php?link=http://www.ca6.uscourts.gov/internet/court_audio/recent/10-14-2015 Wednesday/13-1876 Clifford Tyler v Hillsdale County Sheriffs Depart and DOJ.mp3&name=13-1876 Clifford Tyler v Hillsdale County Sheriffs Depart and DOJ. 34 554 U.S. 570 (2008).

35 See Lyle Denniston, Appeals court: Gun control must meet toughest test, SCOTUSBlog (Dec. 19, 2014, 8:25 PM), http://www.scotusblog.com/2014/12/appeals-court-guncontrol-must-meet-toughest-test/.

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DICTA

January 2016

MANAGEMENT COUNSEL: LAW OFFICE 101 By: Cathy Shuck Of Counsel, Wimberly Lawson Wright Daves & Jones, PLLC

Personnel Records: What to Keep, What to Shred?

A great item for your New Year’s To-Do List is cleaning up your practice’s personnel records. There are some items you must keep, some items you should keep, and some items you have to keep in a particular way. Retention periods for common employment documents are outlined below. Note that, of course, you must preserve any information subject to a litigation hold in accordance with the hold, notwithstanding any other time limits.

Pre-Employment Information Job applications, resumes, reference checks, interview notes, background checks, and the like should be kept for four years if the applicant is not hired. If the applicant is hired, this information should be maintained for the entire period of employment, plus four years after termination.

Employers who conduct pre-employment physicals and/or drug tests should keep that information in a separate, confidential file.

Supervisors and managers should not have access to the confidential file (see below).

Information Collected at the Time of Hire Federal I-9 forms must be kept on file for the duration of employment. They must be retained for the longer of three years from the date of creation or one year after termination. You do not need to retain copies of the documents used to fill out the I-9 form, but if you choose to retain copies, you must retain copies for all employees.1 The Tennessee Lawful Employment Act (TLEA) does require you to keep copies of the documents verifying employment eligibility under TLEA, unless you use the E-Verify system. If you use the E-Verify system, you must keep a copy of the verification in the employee’s file.

Record retention requirements under TLEA are the same as for the I-9: three years from the date of creation or one year after termination.2 Insurance benefit enrollment forms should be kept for six years.

W-4 forms should be kept for at least four years after the end of the last year to which the W-4 applied. For example, if a new employee fills out a W-4 in 2016, then fills out a new W-4 changing her withholdings in May of 2017, you should keep the first W-4 for four years after the end of your 2017 tax filing year (because the first W-4 was in effect for the first part of 2017).3 Information Collected During Employment Performance appraisals, notes about the employee’s work, information supporting promotions, disciplinary actions, and the like should be maintained throughout the employment. The information should be retained for at least four years after termination.

Payroll information should be kept for eight years. Employment tax information, like W-4 forms, should be kept for at least four years.4 FMLA records, if your firm is subject to the FMLA, should be kept for at least three years after the date the leave ends. It is a good idea to keep FMLA records for the same period as other employment records: the duration of employment plus four years. Because FMLA records usually contain medical information to support the need for leave, they should be kept in a separate confidential file.

Similarly, you may receive medical information about an employee pursuant to a request for a reasonable accommodation under the ADA. That information should also be kept for the duration of employment plus four years, and should be kept in a confidential file.

What Should and Should Not be in the Personnel File?

If a document is relevant to an employee’s performance, skills, or behavior, then it should be in the personnel file. Another way to think of it is, if the employee’s supervisor would find the information useful and relevant in making an employment decision, then the document belongs in the file.

Some information must be kept on file, but should not be accessible to the employee’s supervisor because of the nature of the information.

This includes medical information, as stated above, and can also include sensitive information such as wage garnishments, child support documents, responses to outside requests for verification of employment or payroll status, doctor’s notes, workers’ compensation information, and the like. Such information should be kept in a separate confidential file maintained by the office administrator or someone out of the line of direct supervision. If the information could create unfair or illegal bias – or the appearance of such bias – on the part of the supervisor, and is not directly relevant to the employee’s performance, skills, or behavior, then it should be in the confidential file.

Conclusion Over time, employee forms, records, and notes tend to accumulate.

Thoughtful pruning of current and terminated employee files can help save space, but be mindful of the myriad retention requirements before firing up the shredder.

1 See USCIS’s very helpful Handbook for Employers, available at http://www.uscis.gov/sites/default/files/files/form/m-274.pdf 2 See Tennessee Public Chapter 436 (effective January 1, 2012).

3 See the IRS’s retention list for employment tax info: https://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Employment-Tax-Re cordkeeping 4 Your accountant may recommend retaining the information longer.

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.

January 2016

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HELLO MY NAME IS . . . C.J. LEWIS By: Katie Ogle Haynes Meek & Summers

Have you ever met an attorney who you know is a good person the instant you meet them? While lawyers are often chided by non-lawyers for possessing less than desirable traits, one would be hard-pressed to find any in Knoxville Bar member C.J. Lewis.

In speaking with C.J. for this article, I learned much about his commitment to giving back to the community. For starters, C.J. and his wife, Emily, are an open foster home through Knox County’s Department of Children’s Services. Their home has been an “open” foster home for nearly two years. In that time they have had four placements, two girls and two boys. During these two years, C.J. was a full time law student, an intern in the Knox County Public Defender’s Office, and still managed to find time to teach Sunday School at West Park Baptist Church.

“Having kids at home makes me think about how I use every minute. I only have so many hours while they are home. It’s hard sometimes when they hear, “Daddy has to go work,” more than “Daddy’s home.” C.J. explained he is always seeking to be proactive about spending more time with them but that can prove difficult in the first few months of starting a law practice.

A Memphis native, C.J. graduated from the University of Tennessee’s College of Law in May 2015 and passed the bar exam in October of this year. He took the knowledge he gained interning at the Public Defender’s Office and immediately opened his own law practice.

I always ask how an individual’s educational path led them into their legal career when profiling them for this column. For C.J., his undergraduate background in sociology lent itself well to the practice but the law was one of a couple options that he decided to pursue.

“At the end of college I wanted to either become a lawyer or become a pastor. I thought about the attorneys that had mentored me during undergraduate mock trial at Rhodes College in Memphis: Dr. Watson, Kevin McCormack, Bill Monroe, Anna Smith, and many others. Each one of them taught me that a law license is a tool that you can use to make a difference in peoples’ lives. I decided that I wanted to become a lawyer so that I would have the power to help change lives.”

“Sociology helped me to see that we should not be quick to judge people who make decisions that society calls criminal. Many of us make choices that are poor; however, for most of us our position in society ensures that these poor choices are kept in private or are accepted by society. Poverty uniquely situates many people in a position where the poor choices are both public and criminalized. I bring this perspective into court and advocate on behalf of clients who are often pre-judged before they say a word.”

C.J.’s practice focuses mainly on criminal defense, a field in which he has become passionate over the development of his legal career. In discussing what led him to pursue a focus in this area, his response mirrors that of many UT Law alums.

“Since Dean Blaze’s criminal law class, I have known that no other area of the law calls my name so strongly. Indigent defense brings together my passion to serve others and my interest in criminal law. I clerked with the Public Defender’s Office in Knoxville, worked with Steve Johnson on the Innocence Clinic at UT, and with Joy Radice on both the Expungement Clinic and Clemency Clinic. Each experience helped to bring me to practicing as a criminal defense attorney.”

Not only did C.J. develop an interest in advocacy in law school, but he also won Advocacy Idol in 2013, Advocates Prize in 2014, and was runner-up in the Jenkins Trial Competition that same year.

Though it is clear to me that C.J. is an individual driven to become a better practitioner, father, and husband, his most important attribute is his care for the community he serves. He shows that devotion through the way he treats other bar members and the clients he tirelessly represents every day. Many thanks to C.J. for allowing DICTA readers to have a glimpse into his life, and for making a positive impact through his many community endeavors.

W E LCOM E NEW MEMBERS THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS: William E. Baltz Heather Bryan Jason S. Collver Garza Law Firm, PLLC Nicholas W. Diegel Wagner, Myers & Sanger, P.C. Stanton Fears Kramer Rayson Kathryn E. Fraser Knox County Public Defender’s Community Law Office Mary Christa Gorga Richard E. Graves Lindsey L. Hobbs Trina C. Hughes William A. Ladnier Tennessee Supreme Court Lindsey L. Lee C.J. Lewis

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George T. Lewis, III Baker, Donelson, Bearman, Caldwell & Berkowitz (Memphis) Ashlee B. Mathis The Isaacs Law Firm Matthew D. Matney Matt McLeod Alexandra Deas McMahan Jessica L. Moe Marc T. Napolitana Garza Law Firm, PLLC Lee T. Nutini U.S. District Court Jesse P. Oakes James F. Parker U.S. District Court Warren D. Pearson, II Amber Lampe Peters Moore, Ingram, Johnson & Steele, LLP

DICTA

Rebekah T. Pykosh Jewelry Television Garry M. Roberts Willie Santana Knox County District Attorney General’s Office Abby C. Satterfield Brooklyn D. Sawyers U.S. Attorney’s Office Grayson K. Schleppegrell Woolf, McClane, Bright, Allen & Carpenter, PLLC Lydia M. Simmons Great West Casualty Company Jacob T. Spangler ORNL Federal Credit Union Benjamin David Stallard Charles T. Stallings Erik J. Zetterberg

Law Student Members: Timothy C. Chambers Christopher K. Coleman Jessie Crane Christian L. Cummins Lynda Forrester Erin E. Gomez Andrew M. Hale Allison L. Hotz Alexandra Hull Andres Jiminez Kristen P. Kirkland Kathryn Mansfield Jarred Reed Keri Rule-Stafford Dara M. Vick Lauren E. Williams

January 2016

JUDICIAL NEWS By: Broderick L. Young Arnett, Draper & Hagood, LLP

BAR ASSOCIATIONS RESPOND TO PROPOSED RULE CHANGES The Advisory Commission on the Rules of Practice & Procedure filed its proposed Amendments to the Tennessee Rules of Evidence and Procedure on August 27, 2015. The proposals are wide ranging and comprise 140 pages.1 The filing included a solicitation of written comments on the proposed amendments from the bench and bar to which, the Tennessee Bar Association, Knoxville Bar Association, and to a lesser extent, the Memphis Bar Association, obliged. The comment period closed on November 25, 2015.2 Based on the volume of comments generated from the bar associations, below are what appear to be the more significant, if not controversial, proposals, along with selected commentary from the TBA and KBA. The recommendations which appear to have drawn the most attention, and criticism, from the bar associations are the changes to Rules 3 and 4 of the Tennessee Rules of Civil Procedure. The proposed 2016 amendment retains only the first sentence of existing Rule 3, with the remainder becoming new Rules 4.01(3) and 4.01(4). While it may seem logical to address all process related issues in Rule 4, it is the change to the issuance of new process deadline which appears to have caused the most concern.

RULE 3 COMMENCEMENT OF ACTION (a) All civil actions are commenced by filing a complaint with the clerk of the court. (b) Subject to the provisions of Rule 4.01(3) and (4), the filing of a complaint tolls any applicable statutes of limitation and repose.

RULE 4 PROCESS (3) If a plaintiff or counsel for plaintiff (including third-party plaintiffs) intentionally causes delay of prompt issuance of a summons or prompt service of a summons, filing of the complaint (or third-party complaint) is ineffective. If process is not served within 90 days from issuance, regardless of the reason, the plaintiff cannot rely upon the original commencement to toll any applicable statutes of limitation or repose unless the plaintiff continues the action by obtaining issuance of new process within 150 days from issuance of the previous process.

(4) If a plaintiff or counsel for a plaintiff (including a third-party plaintiff ) intentionally causes delay of prompt issuance or prompt service of a summons, the filing of the complaint (or third-party complaint) will not toll any applicable statutes of limitation or repose.

The TBA viewed the change from one year in the current Rule 3, to the proposed 150 days, “drastic,” and further commented, The TBA is not aware of any empirical proof or anecdotal evidence suggesting that the delayed issuance of summons is a problem in the Tennessee judicial system . . . the Association believes that the proposed 150 day deadline to reissue an alias summons is arbitrary, unworkable, peculiar and illogical.

The KBA also objected to the shortened deadline, “the KBA opposes the proposed change to the existing rule as being unduly burdensome and unnecessary.” The KBA further supported a change to the new Rule 3 to include the words “or petition” after the word “complaint,” to perhaps formalize the acceptance of “petitions” noted in the 2013 Advisory Commission Comment to the Rule.

The Advisory Commission has also recommended changes to Tenn.

R. Civ. P. Rules 4.04(11) and 4.05(5), which address service of process by registered or certified letter. The recommended versions of these rules remove the following identical provision, January 2016

For the purposes of this paragraph, the United States Postal Service’s notation that a properly addressed registered or certified letter is “unclaimed,” or other similar notation, is sufficient evidence of the defendant’s refusal to accept delivery.

The Advisory Commission’s recommendation with regard to Rule 4.05(5) also includes the following additional provision: Service by mail shall not be the basis for the entry of a judgment by default unless the record contains a return receipt showing personal acceptance by the defendant or by persons designated by Rule 4.04 or statute.

The TBA approved of each of the proposed changes with regard to this type of service as each of the recommendations, “more closely complies with constitutional due process requirements.”

The MBA’s Board of Governors ultimately favored the amendments, however, the MBA did note significant dissent among its members on the issue. One MBA member noted the frequency in family law cases of defendants actively avoiding service, and the problems the new rule would present. “Removing this provision is going to increase litigation costs, as I cannot see any recourse other than having my client hire a private detective or pay additional fees to a process server to track down a defendant.”

The KBA opposed the amendment to Rule 4.04(11) as “unnecessary,” citing case law from the Supreme Court of Minnesota: “actual notice in every case is not required” and, that it was “well settled, that as to notice, due process does not require exact certainty,” which is from McIntee v. State of Minn. Dept. of Safety, 279 N.W.2d 817 (Minn.

1979).

Finally, the recommendation which seemed to draw similar attention from bar associations was not a formal rule change, but rather the proposed addition of an Advisory Commission Comment to Tenn.

R. Civ. P 30.03.

Advisory Commission Comment [2016]. Rule 30.03 provides that “[e]xamination and cross-examination of witnesses may proceed as permitted at the trial under the Tennessee Rules of Evidence.” This language does not imply that Tenn. R. Evid. 615 is applicable to depositions. Unless otherwise ordered by the court, a lawyer may communicate with a deponent about deposition procedure or the substance of deposition testimony before, during (unless a question is pending) or after the deposition; however, such communications are subject to the Rules of Professional Conduct including, but not limited to, Tenn. Sup. Ct. R. 8, RPC 3.3 and RPC 3.4.

The TBA “wholeheartedly” agreed “with the Commission that consultation at breaks should not be denied,” however, the TBA expressed concern that the Comment’s reference to Tenn. R. Evid. 615 might also “be construed to eliminate the prevailing practice of excluding non-party witnesses from depositions, this would be inadvisable, and the comment should clearly reflect that non-party witnesses do not have the right to attend other depositions absent consent of the parties or a court order permitting it.” The KBA expressed concern that the additional Rule 30.03 Comment “regarding an attorney’s communication with a deponent about deposition procedure or the substance of a deposition testimony appears to conflict with an existing Advisory Commission comment.”

Available at, http://www.tncourts.gov/sites/default/files/2016_rules_package_final_ public-comment_order_8-27-15.pdf.pdf Available at, http://www.tncourts.gov/sites/default/files/combined_comments_to_2016_ rules_package_admin2015-01631_4.pdf

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15

THE 2015 FRCP AMENDMENTS: CUTTING THE FAT

This article is a feature about the most recent updates to the Federal Rules of Civil Procedure, which took effect December 1, 2015. If that doesn’t get you going, I don’t know what will. OK, so the FRCP isn’t the sexiest topic, but when the Rules Committee says “jump,” we say “how high?”

You have probably already seen the handy redlined copies of the new Rules amendments à la Track Changes. (If you haven’t, email me and I will send them to you.) My hope is that this article will update you on what you need to know about the amendments without boring you or forcing you to sift through redlined copies of the Rules. Perhaps most importantly, this article should befit its status as a feature, which means that it has to at least be interesting. (By the way, have you ever tried to pick out a cover photo that represents the excitement of an FRCP update? It’s nearly impossible.)

First, a little history lesson: the December 2015 changes were birthed through a long process that began with the Rules’ Advisory Committee hosting a conference in May 2010.

Approximately 200 judges, lawyers, and academics gathered together to discuss the status of civil litigation in America and how it could be improved. The committee then opened up the debate to the general public, receiving over 2,300 responses. Then came the arduous task of drafting.

In its release on the changes, the Federal Judicial Center explained that the Rules needed four broad updates to improve the state of civil litigation: (1)

Increased cooperation among civil litigants in the pretrial process (2) Greater proportionality in discovery (3) Earlier and more active case management by judges

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(4) Improved guidance on the preservation and loss of electronically stored information In short, the Rules changes are intended to make discovery more efficient and cost-effective, but are not intended to deprive litigants of any proof or defenses. Cooperation is “in” this season.

Now would be a good time to tell you what, exactly, has been changed. The major changes include updates to Rules 1, 4, 16, 26, 34, and 37. Minor amendments were made to Rules 30, 31, 33, 55, and 84 regarding forms that could not possibly fit into the word limit I was so graciously given. Here are some quick-hits on the important textual amendments and what to expect now that the changes have taken effect: Rule 1. This amendment encourages quicker, less expensive resolution of suits by placing the Rules’ goal of “secur[ing] the just, speedy, and inexpensive determination of every action and proceeding” on the shoulders of all involved—not just the attorneys, but also the court and the parties. Perhaps the most important practical thing to note about the new Rule 1 is that its revised language does not create new grounds for attorney sanctions. That would only serve to violate the kumbaya spirit of the new cooperation rule.

Rule 4. This revision reduces the time limit allotted for serving a defendant from 120 to 90 days after the complaint is filed.

Rule 16(b). This rule change helps federal judges create better scheduling orders.

Although the method of judges’ consultations with the parties has been deleted, the new rule

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still encourages any and all forms of scheduling conferences, especially “direct simultaneous communication” (even FaceTime or Skype for the “sophisticated”). You’ll begin to see more tailored orders that align with each of the litigants’ individual needs. You will also see them faster: the new rule requests that judges issue the scheduling order within 90 days (formerly 120) after any defendant has been served, or 60 days (formerly 90) after any defendant has appeared. The scheduling orders, in accordance with new discovery plans, must also include directions on preservation of ESI (see the Rule 37 amendment discussion below) and include agreements reached under Federal Rule of Evidence 502.

New scheduling orders should also direct the parties to request a conference rather than immediately filing motions related to discovery disputes. [In my line of work, we are already incorporating the more informal live teleconference method—I have found it to be quite helpful in reducing the amount of paper being pushed around.] In short, this Rule now requires judges to be proactive about discovery disputes before they turn into another battle of motion, response, and reply. Accordingly, we lawyers will save time and, therefore, we will save clients money.

Rule 26(b)(1). Another committee buzzword: proportionality. Like a middle child, the committee insists that proportional discovery is not a new concept, but “slightly rearranged” to move it to its proper showcase in Rule 26 so that attorneys and judges will focus on it. By proportional discovery, the committee means discovery that meets the realistic needs of a particular case. Beyond the “needs of the case,” factors to consider in determining proportional discovery include the amount in controversy, the parties’ relative access to relevant January 2016

COVER STORY

By: By Lee T. Nutini Judicial Law Clerk, United States District Court

information, the parties’ resources, the “importance of the discovery in resolving the issues” (a real zinger), and whether the burden or expense of the discovery will outweigh its benefit. You get the idea: if you don’t actually need it, please don’t ask for it. Note, however, that boilerplate objections in proportionality’s name are highly discouraged.

So, like Rule 16, this rule change also reduces discovery (i.e. “cuts out the fat”) to the actual needs of the case. You’ll start to find that judges will be more “aggressive,” to use the committee’s word, in their attempts to determine what proof is needed and if certain requests are wasteful or excessive. The determinative issue will be: what and how much document production will the proof in the case actually require? Gone are the days (we hope) of the warehouses of discovery, the thousands of pages of documents in a case whose trial you expect will only last three days.

The other major change to note here is that the “reasonably calculated to lead to discovery of admissible evidence” rule that has traditionally governed the scope of discovery has been ferreted out. As the Committee notes, Rule 26 was never intended to create such a rule for the scope of discovery. The new rule on the scope of discovery now stands as that which is proportional. The discovery you request does not have to be admissible in evidence, period.

Rule 26(d). You may now deliver Rule 34 requests 21 days after the complaint is served on a party, despite not having your first Rule 26(f ) conference. Requests will be considered served at the first 26(f ) conference, the date from which the time to respond is calculated.

As to the sequence of discovery, the rule now permits parties to stipulate to the sequence that the parties prefer.

Rule 37. This rule now specifies sanctions for failing to preserve (formerly “provide”) ESI, or electronically stored information, in agonizing detail. Being awarded spoliation sanctions now requires what I interpret as a three-step showing. You must show: (1) that the ESI should have been preserved; (2) the ESI was lost because the party failed to take reasonable steps to preserve it; and (3) the ESI cannot be replaced through additional discovery.

If you can make that showing, Rule 37(e) now imposes some specific limitations on the court ordering spoliation sanctions. The court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.

anticipated” as made famous in Zubulake v.

UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003), accord John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008). The revisions simply endeavor to resolve differences of opinion in federal circuits on the issue of sanctions and the particular showing required to impose those sanctions. See, e.g., Residential Funding Corp. v.

DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002). The committee also notes that only reasonable steps are required to satisfy the duty to preserve; perfection is not necessary. That is, the court may consider a party’s relative inexperience or the failure of their “cloud” computing system when assessing compliance with the duty.

Conclusion. The 2015 amendments ask judges to get involved in a “hands-on” capacity early in cases to reduce costs and efficiently administer justice. Practically, the revisions simply refocus our attention on the central aim described in Rule 1. The Advisory Committee reassures lawyers and jurists that the latest amendments do not change the Rules, but merely reinvigorate and remind all of us to be watchful over the precious resources of time and money.

This article is in memory of a man who would look with excitement on a feature about the Federal Rules; a man who truly loved the law: Lewis S. Howard (1930 – 2015).

Most importantly, the new Rule 37(e) does not alter or replace the common-law duty to preserve ESI when litigation is “reasonably

Rule 34. One of the less interesting amendments (is there a “more interesting” category?), this revision merely states that, when responding to requests for production that were delivered under Rule 26(d)(2), you have 30 days after the first 26(f ) conference to respond. In your responses, you may also produce copies of documents or provide ESI (already commonplace, but now official) rather than permitting an inspection, all of which should be produced by the time of the requested inspection. Also, objections to Rule 34 requests must specifically state “whether any responsive materials are being withheld on the basis of that objection.”

January 2016

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WORD PLAY

barrister bullets

By: Peter D. Van de Vate Law Office of Peter D. Van de Vate The Access to Justice Committee is soliciting ideas from you and your non-profit partners for ways Barristers can help serve you, your non-profit, and the Knoxville, Knox County, and Greater East Tennessee community. If you have an idea for a legal clinic, legal presentation on a specific topic or issue to educate the public, or specific legal need for a non-profit organization or other individual or group with a legal need, then please contact Daniel L. Ellis at dellis@ellisandellislaw.com or Kathryn Ellis at kellis@laet.org.

The Diversity Committee hopes to participate in the YWCA’s Annual Race against Racism on January 16, 2016. Pre-race festivities starts at 11:00 and the race begins at 1:00 P.M. If you are interested in joining the team, contact Amanda Morse at amanda.morse@knoxcounty.org or Zack Gardner at zgardner@kmfpc.com for details!

The Barristers Habitat for Humanity Committee is gearing up its efforts as the KBA Habitat build isn't too far around the corner, and the KBA has already begun its fundraising efforts. Stay tuned for updates regarding what the Barristers can bring to the Habitat party!

The Hunger and Poverty Relief Committee thanks each and every person and law firm who participated in the Annual Canned Food Drive and the Angel Tree program. With your help, we raised over $15,000 for Second Harvest and provided Christmas gifts for 21 children in Knoxville. Thank you for your continued support of our efforts.

“Auld lang syne” Well, ‘tis the season after all. If you are anything like me you hum along, not knowing the words or what they mean. Maybe this will help.

The phrase of the Scottish song, written by Robert Burns in 1788, means literally: ”old long since.” Burns was not the first to use the phrase. Poems by Robert Ayton (1570-1638), Allan Ramsay (1686-1757) and James Watson (1711) and others used it. Matthew Fitt used “In the days of auld lang syne” to mean “Once upon a time” in his renditions of fairy tales.

The song is used in many ways all around the world. While we tend to sing it as the ball drops in Times Square, as the Scots do, it has other traditional applications. It may be heard at farewells, funerals, graduations and the closing of a Boy Scout Jamboree; to mention only a few.

So, this year, let us sing it knowing the darned words: Should old acquaintance be forgot, and never brought to mind?

Should old acquaintance be forgot, and old lang syne?

The Law School Mentor Committee is looking for volunteers to conduct Mock Interviews February 1-5 at UT Law. A more detailed schedule will follow. Volunteers are also needed for a Solo/Small Firm Panel at UT Law in March. Contact Caitlyn Elam at celam@lewisthomason.com if interested in participating.

CHORUS:

Anyone interested in serving on the Mock Trial Committee contact Kathryn Ellis at kellis@laet.org or John Rice at jrice@esc-law.com.

Please start thinking about volunteering to judge the competition in February.

And surely you’ll buy your pint cup! and surely I’ll buy mine!

And we'll take a cup o’ kindness yet, for auld lang syne.

The Barristers’ Volunteer Breakfast Committee thanks 2015 participating firm sponsors and volunteers. We look forward to working with firms and members of the bench and bar in the coming year.

Please contact Samantha Parris, Barristers Vice President, at samantha@sparrislaw.com with any updates.

For auld lang syne, my dear, for auld lang syne, we'll take a cup of kindness yet, for auld lang syne.

CHORUS We two have run about the slopes, and picked the daisies fine; But we’ve wandered many a weary foot, since auld lang syne.

CHORUS We two have paddled in the stream, from morning sun till dine; But seas between us broad have roared since auld lang syne.

CHORUS And there’s a hand my trusty friend!

And give me a hand o’ thine!

And we’ll take a right good-will draught, for auld lang syne.

CHORUS Happy New Year!

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January 2016

TEMPUS FUGIT – TIME FLIES By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.

AND SO IT BEGINS In 1964, Bob Dylan sat on a stool in the middle of a stage with his Martin acoustic guitar on his lap and a harmonica at his lips and warned,

But, Dylan’s lyrics almost imply slowing down long enough to take stock of the world around you. The lyrics zero in on the value of your time to you in light of the fact that things are always changing. That is an interesting observation. It would seem that, if the times really are Come gather ‘round people always changing – and so far that observation seems to be Wherever you roam unchallenged – then it does matter how we invest our time.

And admit that the waters It makes sense to spend time in things that are going to continue to Around you have grown be valuable as the times change. Or, to paraphrase Dylan, if you are And accept it that soon standing in a puddle of water that looks like it is growing, it might be You’ll be drenched to the bone. time to take a few swimming lessons because that is probably what you are going to be doing if you stay where you are.

If your time to you is worth savin’ For the past four years, the DICTA Editors have, in their great Then you better start swimmin’ benevolence, let me write on many topics such as the importance of Or you’ll sink like a stone mentoring in the legal community, treadmill desks, pets, Japanese words For the times they are a-changin’.1 and phrases, ogres, Mark Twain’s first job, the history of the Twenty-Seventh Amendment, group dynamics, and yoga. The list reads like a Jeopardy game board. Come to think of it, that could be the The rest of the song talks about how things change. The person reason there is no “Letter to the Editor” section in DICTA. who is a loser now will be a winner later in time. The slow will be fast.

This year, the column is about change.

The first will be last. The present will be the What has changed? What is changing? How past. These are short, simple concepts, and t would seem that, if the times do you know if something has changed? How they rhyme quite nicely. really are always changing – and do we deal with change? How do we know But, that second phrase stands out from so far that observation seems to when something needs to change? the rest of the song: “If your time to you is The purpose is not to induce a widespread worth savin’, Then you better start swimmin’ or be unchallenged – then it does outbreak of metathesiophobia (the fear of you’ll sink like a stone, For the times they are matter how we invest our time. change) or tropophobia (the fear of moving) a-changin’.” among the members of the Knoxville Bar. Usually, when we think about saving time, Rather, the purpose of the column is to think about ways to spend the we are thinking about speeding something up. Instant potatoes allows us time that really is worth savin’ in activities that reflect the changing to transform small white flakes into larger white lumps, saving the time nature of the times and that will produce results which will not be one would ordinarily spend peeling, dicing, boiling, and mashing obsolete as quickly as the Palm Pilot. For, as surely as the sun will rise, potatoes. A microwave oven saves us time by allowing us to cook dinner omnia mutantur nos et mutamur in illis. “All things change, and we without waiting for the oven to preheat or even worse, the proverbial pot change with them.” to boil.

Airplanes save travelers countless hours of driving time, although 1 Bob Dylan, The Times They Are a-Changin,’ on The Times They Are a-Changin’ the actual time saved is negligible considering that much of that time (Columbia Records 1964). may now be spent in airports going through security screenings. The 2 For too many examples of the auto-correct feature gone awry, check out auto-correct feature on our cellphones saves us time by turning our www.autocorrectgonebad.com. poorly spelled words into borderline-inappropriate texts and e-mails.

OK. Maybe that last one is a bad example.2

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Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records: Patricia A. Alcamo Baker, Donelson, Beaman, Caldwell & Berkowitz 2065 Brookview Centre Way Suite 600 Knoxville, TN 37919 Ph: (865) 549-7000 FAX: (865) 329-5107 palcamo@bakerdonelson.com Dawn E. Bowie BPR#: 033113 Just Bowie Law, P.C. 320 Wears Valley Road Pigeon Forge, TN 37863 Ph: (865) 425-4224 dawn@justbowielaw.com

January 2016

Hillary E. Dewhirst BPR#: 022760 Norton & Luhn, P.C. 310 N. Forest Park Blvd.

Knoxville, TN 37919 Ph: (865) 971-4600 FAX: (865) 544-0700 hillary@attorneydewhirst.com Amber Lampe Peters BPR#: 034318 Moore, Ingram, Johnson & Steele, LLP 408 N. Cedar Bluff Road Suite 500 Knoxville, TN 37923 Ph: (865) 692-9039 FAX: (865) 692-9071 alpeters@mijs.com

Mary J. Rutherford BPR#: 015878 317 W. 1st North Street Knoxville, TN 37814 Ph: (423) 587-5184 FAX: (423) 587-6868 Marylaw@mrlawinc.com Kelly G. Taylor BPR#: 026324 The Trust Company of Knoxville 4823 Old Kingston Pike Suite 100 Knoxville, TN 37919 Ph: (865) 971-1902 FAX: (865) 971-1020 ktaylor@thetrust.com

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Name and Address Change: Amanda Tauber Tonkin (previously Amanda Sara Tauber) BPR#: 033660 Tennessee Department of Human Services 2700 Middlebrook Pike Suite 201 Knoxville, TN 37921 Ph: (865) 594-9113 FAX: (865) 594-2800 amanda.tonkin@tn.gov

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BEFORE THE BAR By: Sally A. Goade Judicial Law Clerk Tennessee Court of Appeals

HARD-WORKING FOUNDATIONS: JOBS YOU WON’T FIND ON THEIR RÉSUMÉS In the “Before the Bar” column this year, we have celebrated attorneys who were successful in other careers before they became lawyers, careers they still list on their biographical pages. For this final column, we are turning the spotlight onto some hard-working KBA members’ early job experiences, ones probably missing from their current resumes. As you enjoy our contributors’ stories, you might remember a “special” job experience long-since culled from your résumé.

eventual profession? The most persuasive sales pitch is just being nice to people; attention to detail is a very important trait to cultivate in any job; and I would someday work in a job that had air conditioning and didn’t require me to wear fake lederhosen.

Terry D. Tucker, Senior Counsel, Real Property & Transportation Division, Tennessee Attorney General’s Office

The Honorable Suzanne H. Bauknight, United States Bankruptcy Judge, Eastern District of Tennessee

From 1983 to 1987, I was able to put myself through law school as a full-time Deputy for the Knox County Sheriff ’s Department. One of my duties was to provide courtroom security in high-profile criminal When I was 19, I quit college and was working full-time at cases. My responsibilities included guarding the defendants so they did Bojangles. I worked many different areas in the front of the store from not escape or harm anyone and to make sure that no one harmed them. front cashier to drive-through. Then, to have a If the jury was sequestered, then I also stayed regular daily schedule (I don't know what I was would someday work in a job with them after the trial was adjourned for the thinking as I had to be at work at 5:00 a.m.!) day. I was responsible for their safety and that had air conditioning and and increase my hourly rate from minimum ensuring they did not receive any outside didn’t require me to wear fake wage ($3.35 at the time), I learned to make information about the case. During the day I biscuits. I became the Senior Biscuit Maker, lederhosen. heard the proof and in the evenings was able to making all of $5.25 per hour, on my way to observe the mood and demeanor of the jury. becoming a Master Biscuit Maker. I had special training about every This taught me valuable lessons that I still use in jury trials today. step in the biscuit-making process, from how to press the shortening The biggest lesson I learned is that the utmost effective testimony into the dry goods to how to roll the biscuits and even what order to put from a witness is that which is simple and resonates with the jurors’ them on the pan. Don’t ask me about how to make Bojangle’s biscuits, lifetime experiences. In one trial, the defendant had taken the gun with though – I signed an agreement not to disclose the “secret recipe” (as if I which he had committed two murders to a farm owned by one of his could possibly know it from using the packet marked “secret recipe”). friends, where he buried it. The farmer testified on direct that the defendant came to him, requesting to bury something on his farm, and that later the police came and dug in the area where the defendant had D. Adam Moore, J.D., Senior Vice President, Pinnacle Financial Partners been, finding a gun. On cross-examination, the defense asked the farmer if he had seen the defendant with a gun the day he came to bury To this day, I can’t stand the sight or smell of cookie cakes. I’ll something. The farmer replied, “No, Sir. He held up a bag and asked if intentionally avoid kids’ birthday parties where the circular sugary cakes he could bury something on my farm. Well, Sir, I could tell by the way are often served. During college, I had a number of part-time jobs in he was holding the bag it was either a pint of liquor or a gun and I knew order to pay tuition and book expenses that my family couldn’t afford. the defendant weren’t [sic] a drinking man.” Both the jury and I, as I One of those jobs was at the Great American Cookie Company learned later that evening, had thought about the last time we carried (GACC). To my disappointment, being a college guy working in the something we didn’t want revealed. We had indeed carried it differently. food court at the mall serving cookies to the masses isn’t that “great” after all. I’ll always support domestic manufacturing, but it should be referred to as the “Mediocre American Cookie Company,” at best. In David T. Black, Shareholder, Kizer & Black, Attorneys, PLLC reflection however, working at the GACC helped me raise the necessary The Importance of Body Language – 1968 funds to continue my education, and I’m grateful for the experience and opportunity. It taught me humility and hard work. It taught me to My first indigent appointment to defend a criminal case involved work cohesively with coworkers. It taught me to be articulate and two young men who were charged with stealing a car battery. They communicate effectively with customers. How else would customers professed their innocence. At the preliminary hearing the State called know they could buy five cookies and get one free? Going to class an “eye witness” who testified that at 3:00 a.m. he was unable to sleep during the day and working nights and weekends wasn’t easy, but it and was sitting on his front porch. He identified my two young made me who I am today. I want my three young kids to know the appointees and stated that they walked in front of his house to the value of hard work and perseverance. I want my kids to know that I will driveway of his next-door neighbor. They raised the hood of his love them and support them. My kids should also know, however, that if neighbor’s vehicle and removed the battery. They then retreated back in they take a job at the GACC, I won’t be stopping by for the “Buy 5, get front of the witness’s house. The Attorney General then asked the 1 free” special. witness: “Which one was carrying the battery?” There was a rustle to

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Matthew R. Lyon, Associate Dean for Academic Affairs/Associate Professor of Law, Lincoln Memorial University Duncan School of Law

my left, and the lad sitting furthest from me had raised his hand. The witness responded: “The one with his hand up.” Thereafter, I have never failed to make sure that my client understands the importance of demeanor and “body language.”

In high school I worked in games at Busch Gardens in Williamsburg, Virginia. What did I learn there that helped me in my

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January 2016

SCHOOLED IN ETHICS By: Paula Schaefer Associate Professor of Law University of Tennessee College of Law

PROFESSIONAL CONDUCT OBLIGATIONS IN LIMITED SCOPE REPRESENTATIONS Your neighbor Laurie is planning to represent herself in court in a contract dispute with a local business. Laurie is a bright business owner, and you think she will be able to handle the case on her own. She asks you to help her get started by reviewing and editing her draft complaint and giving her an overview of the steps in the litigation.

You understand that Laurie would like you to volunteer your time (and legal knowledge). You have no problem with doing this work for free, but you want to make sure that your good deed does not turn into months of working as an unpaid attorney in the shadows of the case. Beyond that, you want to make sure you comply with any professional conduct obligations. You should consider the following issues.

Is This a Limited Scope Representation and Should You Put Anything in Writing?

Tennessee RPC 1.2 allows lawyers to limit the scope of a representation “if the limitation is reasonable under the circumstances.”

Comment 7 explains that the facts of the client’s situation are key to determining what is reasonable. While lawyer and client may agree to limit the lawyer’s services to a brief telephone consultation for an uncomplicated matter, such a limit is unreasonable if it will not yield reliable advice. Id. In short, the client must receive competent representation even in a limited scope representation. Tennessee RPC 1.1. In a 2005 formal ethics opinion, the Tennessee Board of Professional Responsibility noted that the question of competent representation in the context of limited pro bono services usually turns on “whether the client will be in a better position with limited services than with no services.” Tennessee Formal Ethics Opinion 2005-F-151.

Rule 1.2 further provides that the client must give informed consent1 to the limited representation, preferably in writing. In a recent ethics opinion, the ABA suggested that because a client may want or need to disclose the scope of a representation to a court or opposing counsel, an attorney should draft the agreement with these audiences in mind. ABA Formal Opinion 472, p. 4, n. 11 (referring attorneys to an example of a limited scope agreement in the Reporter’s Notes to the Maine Rule of Professional Conduct 1.2).

Attorneys should note that the professional conduct rules apply regardless of whether the client is paying for the lawyer’s limited services. Thus, in our example, you must provide Laurie with competent representation, a limited representation must be reasonable under the circumstances, and you should seek Laurie’s informed consent. While it may seem like overkill to state the terms, risks, and benefits of this limited scope representation in an engagement letter, taking that step will ensure that Laurie understands what to expect (and not expect) from you in the future.

Must You Sign A Pleading (or Other Document) That You Assisted in Preparing for an Otherwise Pro Se Litigant?

lies in the fact that counsel may not wish to sign a pleading (perhaps wanting to avoid signaling she has a continuing role in the case), but may wonder whether failing to sign amounts to dishonest or fraudulent conduct. Tennessee RPC 8.4(c) (prohibiting attorneys engaging in “dishonesty, fraud, deceit, or misrepresentation.”).

The ABA concluded that an attorney does not have to sign such documents in most circumstances. The conclusion was based on reasoning that the fact of limited representation is not usually material (so it is not fraudulent) or dishonest (because it does not mislead the court). ABA Formal Opinion 07-446, p. 2-3. Two Tennessee formal ethics opinions have reached a similar result. Tennessee Formal Ethics Opinion 2007-F-153 concluded that an attorney may not engage in “extensive undisclosed participation in litigation” on behalf of a pro se litigant, but that counsel can provide undisclosed (i.e., unsigned) limited assistance to pro se litigant such as drafting a complaint. Tennessee Formal Ethics Opinion 2005-F-151 recommended that attorneys providing limited representation through a pro se clinic include the phrase “Prepared with Assistance of Counsel” in pleadings prepared for their clients.

Is Laurie Represented by Counsel for Purposes of RPCs 4.2 and 4.3?

Tennessee RPCs 4.2 and 4.3 impose different requirements on attorneys communicating with represented and unrepresented parties.

An attorney may be uncertain regarding which of these rules applies when dealing with a party who appears to be working with some assistance from counsel. In our example, would opposing counsel in Laurie’s case violate Rule 4.2 by talking directly with Laurie if that lawyer suspects that an attorney drafted Laurie’s complaint?

In a November 30, 2015 ethics opinion, the ABA encouraged attorneys who have reason to believe an opposing party has received limited legal assistance to ask the opposing party if he or she is represented “for any portion of the matter.” ABA Formal Opinion 472, p. 6. Unless the party states that the representation has concluded or that the issue to be discussed is outside of the limited scope representation, then the attorney should comply with RPC 4.2 and communicate with the party’s counsel. Id. at p. 7. If the representation has concluded or is outside of the representation, then counsel may communicate directly with the unrepresented party pursuant to RPC 4.3. Id. In the Laurie hypothetical, if Laurie explains to opposing counsel that your limited representation has concluded, the attorney may communicate directly with Laurie in accordance with Rule 4.3. If you clearly defined the scope of the representation in an engagement letter (discussed above), Laurie will be more likely to know how to answer an opposing attorney’s question about whether she is represented by counsel.

1 Informed consent is a client’s agreement after the lawyer “has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” Tennessee RPC 1.0(e).

Tennessee, various other states, and the ABA have addressed whether an attorney may be a “ghost writer” for a pro se litigant. Tension January 2016

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WELL READ By: Lee T. Nutini Judicial Law Clerk, United States District Court

THINKING, FAST AND SLOW DANIEL KAHNEMAN (FARRAR, STRAUS & GIROUX 2011) PART 2 OF 2 It isn’t only judges who make judgments. As lawyers, we make judgments every day – to separate the weak arguments from the strong, the persuasive facts from the lesser. Your mind has a method to its judging, and it is prone to error or influence in subtle ways. Harnessing and understanding our judgments is the subject of Kahneman’s book, Thinking, Fast and Slow. In the second part of his book, Kahneman moves from describing the operations of system 1 (reactive; intuitive) and system 2 (logical and controlled; prone to bouts of laziness) to describing the ways in which we make poor judgments. His central message is that we often ignore the role that luck plays in creating success for those around us. Each of the final chapters in the book, which can bog down and be repetitive at times, detail Kahneman’s theories on poor judgment that we can all utilize to avoid similar mistakes in our professional lives.

One way that we make poor judgments is by falling victim to the overconfidence we have in our beliefs. The problem, Kahneman explains, is that overconfidence often arises under the illusion of validity. (p. 209).

Because we forget that our systems 1 and 2 quickly construct a narrative about what we see, we believe in our valuations to a “preposterous” level, Kahneman says. He explains that we often suffer from “confidence by coherence” – that our judgments about people and their skills simply fail to look past the superficial level or take into consideration the time-proven concept of “regression to the mean”: that most things trend toward the average. That great performance you may have just witnessed was probably more about luck than you would expect.

Kahneman illustrates the illusion of validity with an experiment in the Wall Street context: firm executives maintained a policy of offering yearly bonuses or promotions to its wealth advisers picking winner investments and building high-performing portfolios. Kahneman tracked the winners and their “score” based on an objective formula from year to year. The problem? The year-to-year correlation of those high-performers was near zero, at 0.01%. The firm was both defensive and astonished to find out that it was rewarding luck as if it were skill.

The same misevaluation of skill can easily accompany our judgments in the legal sector. Bonuses and promotions are fine incentives, but why build your firm based on judgments founded solely on chance results?

Kahneman’s book also argues that, when we analyze a person’s skill or value, we create reasons for their successes that ignore regression to the mean. When we see one firm succeed and others fail, we assume that perhaps others were complacent: sort of a zero-sum illusion. But, Kahneman explains, “[T]his is the wrong way to think about what happened. The average gap must shrink, because the original gap was due in good part to luck, which contributed to the success of the top firms and to the lagging performance of the rest.” (p. 207). In short, Kahneman believes that we tell ourselves the story of a particular firm’s rise and fall, writing a narrative about triumph and failure, all while ignoring the determinative power of luck.

A sports analogy: Whatever your feelings on the New England Patriots’ seemingly endless success in the NFL for the past decade, many have commented that the team often inserts underutilized, overlooked, or undrafted rookies into their lineups. The Patriots are the rare

22

organization that does not seem to make poor judgments when it comes to rating the skill or value of any one “star” player. Relying on regression to the mean, it certainly appears that the skills of star players and our beliefs about them should all be regressed to the mean: the fact that all NFL players are, on average, pretty darn good. Even undrafted players are, at a minimum, serviceable when given the time and opportunity.

Kahneman might say that our judgment error is that we are overconfident about the differences between a star player and a third-stringer.

A personal analogy: We should avoid being overly confident about our own successes too. For example, the byline near my name identifies me as a federal law clerk, with all the connotations that may go along with that title. What the byline does not report is the countless times I was not picked; the scores of federal judges who did not choose me. My success was and is undoubtedly due in some degree to chance, and Kahneman would tell me to expect neither more nor less out of others.

But, thankfully, what we can control is the amount of effort and preparation we put into our work so that we may shine when our opportunity finally arrives.

You really only have to get lucky once.

DICTA

January 2016

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

WE SURVIVED For the second year in a row, I was forced to miss the KBA annual meeting. My apologies to Tasha and Wayne. I really wanted to be there, but unfortunately work interfered. I am sure it was a successful event and it appears that power transitioned to a new administration with minimal outcry or bloodshed. This column is normally reserved for a running diary on the events at the annual meeting. I am just going to speculate on what happened in my absence.

I am sure everyone enjoyed fellowship and pastries (no bacon) at the continental breakfast before the meeting. Angel tree ornaments were handed out and now 30 or so members of the bar are stressing out about shopping for racecars or baby dolls to give a child a Merry Christmas. I understand the slideshow was on full display prior to the meeting (I apologize if I was in any pictures, I am becoming less photogenic with age, not that I was ever very photogenic to begin with).

I imagine Tasha called the meeting to order right on time (8:30 a.m.?) and our members promptly dispensed with the reading of the minutes and summarily approved the treasurer’s report (because nobody, at least not me, really understands it anyway). Awards were given out.

From what I understand, Dennis McClane received the Governors’ Award. Surely he is a worthy recipient of our Association’s highest honor and I have no doubt that Bill Vines, as ever, was eloquent in the presentation. Lee Ann Mynatt, likewise, was a well-deserving recipient of the Courage in the Face of Adversity Award and I admire her immensely. Could there be anyone other than Sarah Sheppeard to receive the first annual Don Paine Lawyer Legacy Award? I can’t think of a better tribute to Don. I was glad to see the DICTA Award go to Robbie Pryor for his outstanding article about Herb Moncier. As an added bonus, I didn’t have to listen to Chris McCarty attempt his stand-up routine while giving out the award, so I did win a small victory by my absence. Finally, I am told that Troy Weston and Jamie Ballinger-Holden won President’s Awards for community service while Carrie O’Rear and Mark Castleberry won President’s Awards for throwing parties. That sounds about right.

An appropriate memorial was held for our departed brethren and election results were announced. Congratulations to our new governors.

We had a full slate of very worthy candidates and the bar would have been lucky to have any of them. If you did not win a seat on the Board of Governors this year, please consider running in either the Republican or Democratic primaries for president. Both parties are suffering from a dearth of qualified and electable candidates at this point. Can you really do worse than a socialist who won’t comb his hair or an egomaniac whose hair frightens small children?

The meeting ended with our newly installed president, Wayne Kramer, outlining his vision for the new year. Anyone who knows Wayne can’t help but like him. His intelligence, affability, and commitment to the profession promise that we will have another great year ahead. As for the year we left behind, Tasha, you are a rockstar.

Thank you for your innovation and energy. You leave behind a wonderful legacy of active leadership.

Anyway, now that the annual meeting is over, the real crunch toward the holidays has begun. I realize that, by the time most of you read this, the new year will be here and the mad rush will be over. You will either be dead or alive, but semi-comatose, from the frantic pace of the holidays. I guess if you are dead, you won’t actually be reading this column, so this is dedicated to you, the survivors.

Congratulations, you survived the numerous “holiday” (for some members of our UT Diversity Committee) parties a.k.a. “celebrations of the birth of our lord and one true savior, Jesus Christ, who baptized us January 2016

with his blood so that the sins of all may be forgiven” (for some members of our legislature and Washington delegation). Either way you choose to refer to it, you made it through the gauntlet of sugar cookies, sausage balls, eggnog, and secret Santa gift exchanges, which can take down a lesser man/woman. If you gained less than 10 lbs and collected fewer than 3 ugly (“no way in the world would I wear that in public”) scarves during this period then you have to consider it a success. If your party included adult beverages, then you also had to avoid the trap of saying something really stupid to a co-worker you would regret in the new year. Well done.

Next comes the shopping. If you are reading this column, you were able to successfully navigate the nightmare of the mall or you wisely did your purchasing online. You were able to buy presents that your friends and family wanted (at least the gifts were satisfactory enough such that they didn’t feel the need to kill you). I feel more pressure shopping for my wife than in any other endeavor I undertake. That is particularly absurd when you consider the fact that she orders many of her own gifts through Amazon, hands them to me, and only asks that I wrap them.

In reality, I am only truly responsible for two to three original gift ideas each year and I almost never pull that off well. Nevertheless, hope springs eternal, and this may be the year I get it right. I just have a feeling Carol Anne will love the personalized bowling ball I got her.

With shopping and parties off the list, you had to make sure the house was adequately decorated. My family does this well ahead of time (the day after Thanksgiving in fact), but I recognize there are some who make this a last minute ritual. For those of you who waited, congratulations, you apparently were able to successfully untangle the mass of lights and string them on the tree without killing yourself or someone else out of frustration. In fairness, I guess you could have killed someone else while trimming the tree and you are reading this from jail.

Marsha, do we deliver DICTA to jail? Anyway, kudos on surviving the stress of decorating.

Family dinners, travelling, church services, nativity pageants, post-holiday deflation, too much time with family, and bowl games (come on UT!) were all successfully negotiated if you are reading this article. Now is the time to regroup, start fresh and look forward to the new year. I hope you all had a wonderful December and I look forward to seeing everyone in 2016.

DICTA

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LEGAL MYTHBREAKERS By: David E. Long David A. Chapman Leitner Williams Dooley & Napolitan PLLC

TRCP 6.01 AND STATUTES OF LIMITATION On January 8, 2016, Jack and Jill file a personal injury complaint in the local circuit court alleging that “[t]he plaintiffs’ injuries occurred on January 7, 2015.” January 7, 2016 is not a holiday, a weekend, and the day is bright and sunny. The court clerk’s office is open for business.

The complaint alleges various non-specific personal injuries as a result of the alleged accident, but does not contain any allegation regarding property damage or any other legal theory outside of damages stemming from the plaintiffs’ alleged personal injuries and/or loss of consortium.

The defendant files a motion to dismiss alleging that the statute of limitations ran, barring the lawsuit. Plaintiffs argue that Tennessee Rule of Civil Procedure 6.01, by its language grants an extra day. Does it?

No. In Tennessee, the statute of limitations for personal injury claims is one year from the date on which the cause of action accrues.

Tenn. Code Ann. § 28-3-104. The statute provides, in pertinent part, as follows: (a) The following actions shall be commenced within one (1) year after the cause of action accrued: (1) Actions for libel, for injuries to the person, false imprisonment, malicious prosecution, breach of marriage promise. Tenn. Code Ann. § 28-3-104(a)(1) (1972).

TRCP 6.01 is not an easy read. However, the calculation of time with regard to the statute of limitations is governed by Tenn. R. Civ. P. 6.01 which provides:

was time-barred. Id. Similarly the Plaintiffs’ Complaint in the above example is time-barred because it was filed on the first day after the anniversary date of the personal injury accident at issue. None of the exceptions within the purview of Tenn. R. Civ. P. 6.01 are present.

January 7, 2016, the date the complaint should have been filed was on a non-holiday, week day of business and meets no other exceptions set forth in TRCP 6.01. See Tucker v. U.S., No. 3:06-cv-282, 2006 WL 2323252, *1 (E.D. Tenn. Aug. 9, 2006); Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998) (“When a statute of limitations is measured in years, the last day for instituting the action is the anniversary date of the start of the limitations period.”); Merriweather v. City of Memphis, 107 F.3d 396, 398 (6th Cir. 1997) (discussing the Tennessee personal injury statute of limitations and holding that for purposes of calculating a statute of limitation, the one-year period “ends on the same calendar date the following year”).

Legal holidays are set forth in Tenn. Code Ann. § 15-1-101. One should be cautious in making sure the holiday is one recognized by the state of Tennessee, when filing in a state court. TRCP 6.01 is a confusing read because it is capable of being interpreted two ways. For instance, if the “day of ” the accident is not counted, then it is easy to come to the conclusion that TRCP 6.01 “adds” another day to the year.

The case law, however, rejects that argument. It would be better, perhaps, to simply rewrite TRCP 6.01 to say the day of the accident, etc., is included. That would make the rule clearer. It is not likely, however, that TRCP 6.01 will be amended. As such, it should be read in conjunction with case law interpreting it.

In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the date of the act, event or default after which the designated period of time begins to run is not to be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday as defined in Tenn. Code Ann. § 15-1-101, or, when the act to be done is the filing of a paper in court, a day on which the office of the court clerk is closed or on which weather or other conditions have made the office of the court clerk inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than eleven days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.

Tenn. R. Civ. P. 6.01. (emphasis added).

Taken together, Tenn. Code Ann. § 28-3-104(a)(1) and § 1-3-102 (“Computation of time”), Tenn. R. Civ. P. 6.01 dictates that “the last day to file a personal injury action in Tennessee is the anniversary date of the accident, unless that date is one of the dates expressly excluded by Rule 6.01.” Smith v. Hose, No. 03A01-9501-CV-0006, 1995 Tenn. App. LEXIS 410, *4 (Tenn. Ct. App. June 21, 1995) (citing McCleary v.

Morgan, 60 Tenn. App. 578, 449 S.W.2d 440 (Tenn. App. 1968); West v.

Cincinnati, N.O. & T.P. Ry. Co., 108 F.Supp. 276 (E.D. Tenn. 1952) (applying Tennessee law); Coleman v. Dooley, 1991 Tenn. App. Lexis 29 (Tenn. App. January 18, 1991)). The Smith Court held that a complaint filed on the day after the anniversary date of a motor vehicle accident

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DICTA

January 2016

NICE NICHE By: Eric Butler Lewis Thomason

TAX LAW What is your primary practice area?

I practice tax law, with an emphasis on tax controversy matters. I primarily represent taxpayers in state and federal tax examinations, collection of delinquent taxes, criminal tax investigations, and civil tax litigation in state and federal courts. I also assist clients with their estate planning and business succession planning, handle probate matters, and advise my clients and their accountants on various tax issues.

How did you decide to become a tax attorney?

After graduating from law school, I served for two years as a judicial law clerk to the Honorable Alan E. Highers, Tennessee Court of Appeals for the Western Section. During my tenure as a judicial law clerk, I had the opportunity to work on several state tax cases. I really enjoyed my tax courses in law school as well as the tax cases coming before the court, and Judge Highers recommended I pursue my LL.M. in Taxation. When my clerkship ended with Judge Highers, I enrolled in the LL.M. in Taxation program at the University of Florida School of Law. When I took Professor David Richardson’s tax procedure course in the LL.M. program, I knew I wanted to focus my practice on tax controversy matters.

What does a normal week look like for a tax attorney?

To be perfectly honest, there is no “normal” week for a tax attorney, particularly for a tax attorney handling controversy matters. Tax controversy work is really a specialized subset of general tax law, because you have to apply general tax law while also applying unique procedural rules to resolve a dispute administratively or in court. The diversity in cases I am involved in on a daily basis is one of the things I enjoy most about my profession. One week I could be meeting with special agents with the Internal Revenue Service or Tennessee Department of Revenue discussing a complex criminal tax case, or meeting with a state or federal prosecutor to negotiate a plea agreement. The next week I could be drafting a pleading to file in United States Tax Court, preparing a case for trial, meeting with a state or federal agent to handle an audit of a client’s tax returns, meeting with a state or federal agent to resolve a delinquent tax liability, or representing a client in a sentencing hearing following a plea to a tax violation. Each case I work on has a unique set of facts, and I enjoy helping clients resolve their particular tax issue in the best way possible.

each instance, I represent the client before the taxing authority during these often complex administrative investigations. If an examination or collection matter cannot be resolved administratively, I will represent the client in appealing the government’s findings to the administrative appeals function and then, if necessary, to the appropriate state or federal court. In recent years, the IRS has implemented a mediation or arbitration style program to allow taxpayers to settle disputes short of litigation following an examination, and I have participated in several of these settlement conferences. In criminal tax investigations, I represent clients as the investigation progresses, which may result in plea negotiations with state and/or federal prosecutors or may lead to a trial.

While my client matters could be classified as a tax examination matter, a tax collection matter, a criminal tax matter, or a tax litigation matter, each type of case in each category has its own set of unique facts and issues with various moving parts. Many of my cases last several years, during which time I get to really know the client and their business.

Is there anything people would find surprising about your practice?

I think most people would be surprised at the level of professionalism displayed by the vast majority of the employees with the Internal Revenue Service and Tennessee Department of Revenue. The general public has a negative opinion of our state and federal taxing authorities, and several recent news stories have only served to perpetuate this negative image. Recent state and federal budget cuts have also forced these agencies to do more with less. While no organization is without faults, I have seen the employees of the Internal Revenue Service and Tennessee Department of Revenue exhibit the utmost professionalism while performing a difficult job under very difficult circumstances. I recently ended my three-year appointment to the Taxpayer Advocacy Panel, which is a federal advisory panel composed of citizen volunteers appointed by the Secretary of the Treasury who report to the National Taxpayer Advocate on various systemic issues impacting the federal tax system. As a panel member representing Tennessee taxpayers, I had the opportunity to travel across the United States meeting with employees in the various divisions of the Internal Revenue Service. Despite a lack of funding for certain critical functions within the IRS, the ground-level employees I met and worked with during my three-year term were dedicated to making the federal tax system function despite budgetary shortfalls and negative publicity.

Tell us what types of problems or issues you typically deal with for clients?

Given the nature of my tax controversy practice, there really is no typical issue or problem I encounter with my clients on a regular basis.

The majority of my clients come to me after they have been contacted by the IRS or the Tennessee Department of Revenue. The client or their accountant typically have received a letter notifying the client their tax returns have been selected for audit, or they have received a notice the taxpayer’s assets may be levied upon to pay a delinquent tax debt. Or worse yet, the client or accountant received a visit from a criminal agent advising them the taxpayer is under investigation for tax evasion. In About this column: If you have a suggestion of a niche practice for this column, please contact Chris McCarty at cmccarty@lewisthomason.com.

January 2016

DICTA

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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

Phil Hampton Founder and CEO, LogicForce Consulting

AMAZON ECHO We saw it advertised on TV. It looked silly, slightly weird, and not really a practical gadget. So, of course, we bought it. We’re talking about Amazon Echo, a sort of wireless speaker/cloud connected know-it-all/digital assistant. Pre-conceived notions aside, however, Echo made a great first impression on us, and we have been using it quite a bit ever since.

Echo is really just a Bluetooth wireless speaker that comes equipped with voice-activated software that allows you to dictate commands, such as play music, read the news, give a weather update, or just answer some off-the-wall queries á la Siri. The speaker itself is housed in a weird looking tube that will not be mistaken for a decorative vase in your office or home, but as far as Bluetooth speakers go, it’s actually pretty good. It won’t replace our Bose or SoundBlaster Roar as our speaker of choice, but it’s a lot better than our smartphone speakers and some of the other less expensive pieces in our growing Bluetooth speaker collection.

What makes the Echo more than just a nice-sounding speaker, though, is the voice activation feature that connects you to Amazon’s cloud resources via voice commands. The out-of-the-box code word to get Echo’s attention is “Alexa” (nice, we always wanted an assistant named Alexa). Once you say her name, the Echo device lights up to indicate that it’s listening (again, something we’ve always dreamed about in an assistant). You can then ask Echo (we mean “Alexa”) any number of things. For example, Bill asked Alexa to play some tunes from Loudon Wainwright III. Immediately Alexa responded with “shuffling music from Loudon Wainwright III from Google Music” and started playing one of Bill’s favorite songs, “Dead Skunk.” Alexa also connects you with a select group of music streaming services, including Pandora and iHeart radio. Sadly for Bill, though, there is no current integration with Spotify.

You can also have Alexa give you the latest news headlines or sports score updates; give a weather forecast; set an alarm; or preview today’s events from your Google calendar (assuming you use Google calendar…we don’t). Not surprisingly, if you are an Amazon Prime customer, Amazon allows you to re-order previously ordered items from Prime with nothing more than a voice command. That may prove to be just too convenient. From there, it’s just an interactive game to see what Alexa will respond to and how she will respond, e.g. ”Alexa, what is the population of Botswana?”

Even though we have this type of functionality on our smartphones (Siri on the iPhone and Google Now on our Androids), Amazon’s version, nicknamed o yelling at our electronic “Alexa”, seems to work better and to be more devices can now translate “intelligent.” Amazon into responsive action. touts its cloud-based That is a dream come true. system as ever-learning, getting to know its master’s speech patterns, preferences and proclivities (that really scares us), and getting smarter the more you use it. In addition, Echo will interact with a select group of home automation control devices, such as WeMo and Insteon, allowing you to turn on lights, coffee pots, etc. with voice commands (spooky but so cool).

Echo’s marketing collateral touts its “far-field voice recognition” as a differentiator; so we gave it a test. We set the Echo up in one room (with music playing) and went about 20 or 30 feet into another room to

see if it would respond to our voice command. We had to raise our voice a little, but it worked. Echo heard the command and obeyed.

Wow…so yelling at our electronic devices can now translate into responsive action. That is a dream come true.

About the only thing we didn’t like about the Echo (or wished was different) is that it does not have a battery. It has to be plugged in to a power source all the time. So this is not a device that you are going to carry around with you in your backpack. But, you might start out with one at your house and then decide to buy a second one for the office.

Yes, we bought two.

The bottom line is that Echo represents a promising new entry into the growing genre of so-called intelligent personal digital assistants. We like where Amazon is going with this. While it might seem a little creepy to have this cloud-connected device sitting in your house listening to your voice all the time (ok…so maybe it’s really creepy), we really like having this digital assistant faithfully obeying our commands and pulling data we really need from the cloud – when we need it.

Alexa, keep it up. We love you, Alexa.

S

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DICTA

January 2016

PAT H TO T H E L AW By:

Janet Gurwitch

WHO KNEW Here is a chapter from the book I think I might try to write. I think it will be titled: “How Did I Get Here from There” My first profession was as a Speech Therapist. I toted that profession many places following my husband Bert’s career from one store and city to another. I worked at the Atlanta Speech School in one of the first schools for children with learning disabilities; at LSU as a lecturer and Clinic Instructor; for the Atlanta Hebrew Day School as a resource teacher for speech and language impaired children and for the Decatur, Georgia school system in two elementary schools and the high school. It was during that last time in Atlanta that I realized I wanted something different.

It was 1980 and I took a Changing Careers course at a local community center. After the eight week sessions I was left with two possibilities – be a Consultant or an Attorney. Well, the only accredited law school in Atlanta was Emory and I had neither the grades nor the money to attend Emory so I set my sights on consulting. I had an idea I thought was saleable; I would offer companies who move their executives from office to office, city to city a course for those executive’s wives on “How to Seamlessly Move From One Community to Another With a Family” and I began talking to successful consultants to see if this was the correct path for me. Then Georgia State University announced plans to open a law school in the fall of 1982 and everything came to a screeching halt.

The bad news was I would have to take the LSATs and get a good score to be accepted. I went to graduate school, worked through two pregnancies and continued working after my children were born just so I wouldn’t have to ever take another standardized exam. So I took the LSATs. It was the last time the LSATs were like GSATs, you know with a math and verbal sections. I hadn’t had a math course since 1961.

Needless to say I did not do well and Georgia State suggested I retake the exams at the next sitting when the exam would be changed to test skills necessary for law school. I did and my score was well above the requirement. So I became a law student in the fall of 1982.

I attended school part time for three quarters. I loved the classes and Socratic Method and decided to go full time when Bert announced another move, this time to Alexandria, Louisiana. In March of 1984 I said good bye to law school and moved to Alexandria where I lost all hope of getting that degree. For the next 12 months I was probably certifiably crazy. But hope came when Bert decided to move us again, this time to Omaha, Nebraska.

I finished law school in May 1987 at the University of Nebraska-Lincoln. I don’t know where I finished in my class but I would guess it was probably somewhere close to the middle, but I finished. I never expected to “practice” law; my clerking job was with the State of Nebraska writing regulations for EMTs and nursing homes. So I took the Civil Clinic course just to see what the practice of law was like.

When my supervisor and the director of Clinics suggested I should be a Legal Aid attorney I took their advice.

Before I knew it I was taking the Bar Exam in Nebraska, then in Iowa and lastly in Tennessee, because Bert, yet again, decided to move

January 2016

his career one more time. It took more than a year for me to finally follow Bert here; KLAS (now LAET) held a job for me from March until I finally gave in a started working there in October 1989. I found a calling at KLAS, advocating for victims of Domestic Violence (DV), and, later, prosecuting DV cases for General Randy Nichols which also led me to be a part of the founding of the Randall E. Nichols Family Justice Center. Lastly, I found a volunteer community at the Knoxville YWCA, an agency that is dedicated to the empowerment of women and girls and the elimination of discrimination.

And that’s how I got here from there. As a high school classmate said to me at my 50th class reunion “who would have thought that you were smart enough to be a lawyer?” As I always say “Who Knew?”

DICTA

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GUILTY PLEASURES By: Angelia Nystrom UT Institute of Agriculture

GUILTY PLEASURES REVERSED: HOLIDAY BAH-HUMBUG I love holidays. All of them. I have decorations for Valentine’s Day, Easter, Memorial Day, the Fourth of July…and the list goes on and on.

Hugh says that if there were decorations available for Labor Day and Arbor Day, I would have those, too. My absolute favorite, though, is Christmas.

I love Christmas. Really love Christmas. I spend days on end after Thanksgiving decorating at our house. I had a closet built in our bonus room to hold all of my Christmas decorations. On the first pretty day following Thanksgiving, you are likely to find me hanging out of our second story windows, attempting to affix Christmas wreaths to the windows. Hugh says our house “looks like it puked Christmas.”

I love everything about Christmas. Almost. Nothing turns me into Scrooge quicker than The Elf on the Shelf. That cute little stuffed toy is my own personal nemesis. I hate him. Despise him. It didn’t start out this way, though.

I first saw The Elf on the Shelf about fourteen years ago at Junior League’s Tinsel and Treasure, and I fell in love – so much so that I purchased elves for each of my nieces and goddaughters. When Trace was born, Hugh and I immediately purchased our very own Elf for Trace. Like about ninety percent of all families with an Elf, we named our Elf “Buddy.”

Life with Buddy was good for the first five years. Buddy would make an appearance when the Christmas decorations were removed from the closet, would perch himself on a high shelf in our family room next to a jar of moonshine and would remain there until the Christmas decorations were put away. We told Trace that Buddy stayed there because he could see the entire room. The fact that Buddy stayed next to a jar of moonshine was Hugh’s and my own little “inside joke” about “Buddy the Drunken Elf.” Trace was happy with this…until he started school.

When Trace started kindergarten, The Elf on the Shelf became a regular topic of conversation in the weeks between Thanksgiving and Christmas. Trace would come home, telling me how the other children’s elves would move around their homes and would get into all sorts of mischief. He would regale me with tales of elves that fished in the toilet, ate candy in pantries, rode in Barbie cars, and did all sorts of other fun things. For the first couple of years, we had Trace convinced that our Buddy was much better behaved than other elves and that he liked the comfort of his “spot.” Of course, that only worked for so long.

For the past couple of years, Trace looks every day for Buddy to see where he has moved and whether he has gotten into some sort of mischief. When I was out of town for work last week, Buddy did not move, which caused great distress in our house. Trace was sure that something was wrong with Buddy and that he needed to be “cheered up.” This weekend, we purchased Buddy a suitcase full of t-shirts from the “Claus Couture Collection,” as well as a Cousin Eddie bathrobe and slippers. Trace is certain that these will inspire Buddy to engage in a little holiday mischief.

Every time Trace asks what I think the Elf will do, I cringe. When I read Facebook posts about elves that have met their ends at the hands of the family dog, I secretly smile. That smiling stuffed toy has officially turned me into The Grinch.

I was certain, though, that I was not

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the only “holiday junkie” who could be turned into Scrooge by a tradition that should be fun but somehow had become anything but. I quickly realized that I am not alone.

A number of our colleagues turn Grinch-y when the holiday music starts. Says Ian Hennessey, “No other song seems to be able to cancel out Christmas cheer for me quite like the Beach Boys' ‘Little Saint Nick.’ Specifically, the line repeated many, many times throughout the song: ‘Christmas comes this time each year.’ Really? A holiday with a specific date occurs...annually? Is this supposed to be profound?

I’m gonna need to run, run reindeer all through the mall if I have to hear this one. more. time.

Plus ‘Oooo Little St. Nick’ (over and over again) is just sappy sweet awfulness. Baby Jesus needs to sleep, not hear you croon over Santa's hot rod sled.”

Lisa Hall, Alicia Teubert and Nick McCall go Scrooge when “Grandma Got Run Over by a Reindeer” hits the airwaves, and Lisa particularly dislikes “Blue Christmas” with Porky Pig. Brian Lapps hates “Christmas music played on mall organs (the kind that used to be sold in shopping malls).” In that same vein, David Eldridge is not a fan of “the endless sappy jewelry TV ads.”

Cindy Wagner, LeAnn Mynatt and Susan Fendley are not fans of holiday traffic, particularly around the malls, while Justin Martin hates pine needles. Donald Farinato is not a fan of “Setting up Christmas lights. Working on getting all the times to work properly. Trying to figure out why some a blinking … and some are out… and where the receipt is so that I can take it all back to the store. In the traffic.”

Brad Morgan goes batty over certain holiday attire. Says Brad, “I hate Christmas Jammies pictures. Christmas Jammies videos. Christmas Jammies songs. Plastered everywhere. By everyone. All of the time.

Without respite.” Heather Anderson is not a fan of holiday cards, or rather ill-timed holiday greetings. “I hate getting Christmas cards before it’s even December (I like to mail mine on Christmas Eve from the airport!); Christmas decorations for sale in stores immediately after Halloween; perfect Christmas day photos.”

Others share Heather’s sentiment for the rushing of the holiday season. Says Tasha Blakney, “I hate Christmas decorations out in store BEFORE HALLOWEEN. Come on, people. One thing at a time.”

Nick McCall agrees. “I absolutely hate Christmas decorations in place well before Thanksgiving – e.g., at Halloween or earlier; really, people?”

Zach Farrar hates the timing for another reason. “The most annoying thing for me during Christmas is the idea that Christmas ends December 25. There are 12 days of the Christmas season in the liturgical calendar. Christmas is not over December 25, it is only beginning. So leave those Christmas decorations up, make a joyful noise, and continue the merry making and the cups of cheer for the entire 12 days of Christmas!”

My fellow Grinches, may your hearts grow three sizes this holiday, and may all of you have holidays that are merry and bright.

DICTA

January 2016

BENCH AND BAR IN THE NEWS This “members only” column is published each month to share news and information among KBA members. Submissions should be limited to 75 words and will be edited for space and other considerations.

ATTORNEY POSITION AVAILABLE Knoxville firm (Gentry Tipton & McLemore) seeks an associate attorney with at least 3 years practice experience involving commercial lending, transactions, entity representation, private offerings and/or real estate development.

Strong work ethic required. Please send resumes in confidence to: PO Box 1990, Knoxville, TN 37901 or email to caf@tennlaw.com.

HERSTON – ONE OF THE 100 BEST BLOGS Editors of the ABA Journal selected Herston on Tennessee Family Law, a blog published by attorney K.O. Herston in Knoxville, as one of the 100 best blogs for a legal audience. “For us at the ABA Journal, this isn’t just another award. We view our annual list as service to our readers, pointing them to a collection of some of the very best legal writing and commentary on the Web,” a release states.

AFFILIATED ORGANIZATION The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, January 14, 2016, at 12:00 p.m. in the U.S. Attorney's Office, Knoxville, Tennessee. Steve Linn of Forensic Pursuit will be presenting the topic of E-CSI for Legal Professionals. The presentation will be a one hour program. A lunch buffet is available at the cost of $12/person with reservations. Please contact Kati Wheatley, ACP at president@smparalegal.org or (865) 985-0706 for additional information and/or lunch reservations.

SEARCHING FOR A WILL The family of Wilma Jo Wilson is looking for a copy of her will.

Wilma Jo Wilson Date of Birth: 9/6/1934 Date of Death: 11/28/2015 Address: 4712 Gray Road KT Knoxville, TN 37938 Will was drafted by attorney Howard Bozeman (now deceased).

Contact: Pam Wilson, (865) 804-4989, pkwilson4@att.net

FOLLOW THE D.A’S OFFICE District Attorney General Charme Allen invites all members of the Knoxville Bar Association to go online to keep up with the activities of the District Attorney General’s Office. You can visit the DA’s Office website www.knoxcounty.org/dag to view our calendar of events and to receive information about our Office and the criminal justice system, and you can also “Like” our Office’s page on Facebook and “Follow” our Office on Twitter.

OFFICE SPACE AVAILABLE: • A perfect office space available with signage on Peters Road. The office has just been renovated and ready for new occupants. Space offers room for two private offices and reception area and other area for a work station. The location is visible from Kingston Pike and would make a great office for an accountant, insurance agent, attorney or mortgage broker, engineering firm or anyone who would like high visibility.

Offers a carport for your parking along with a paved parking lot. Carport also has a storage closet. Rent: $900.00 per month. Contact Karen Emmert at 356-5049.

• Beautifully Decorated and Furnished office space located at Franklin Square off Kingston Pike. Only $450.00 a month (includes utilities). For more details, call Patricia at 755-1005.

• Office Space for Lease: Fountain City: 5344 N. Broadway. Approximately 2,000 sq ft. *Will divide space* One level.

Across from Fountain City Park. Space on either side occupied by long-term law firms. Two (2) Year minimum lease required. Great for satellite office.

Qualified prospects call: 805-1911.

SHOP AMAZON… BENEFIT LEGAL AID! When you shop online at Amazon, a portion of your purchases can benefit Legal Aid of East Tennessee. Simply use the AmazonSmile portal to enter Amazon’s website and 0.5% of the price of your eligible purchases will be donated to LAET. Use this link: http://smile.amazon.com/ch/58-9132803, or visit www.laet.org and click on the “Support Us” graphic on the home page. Amazon does the rest and LAET gets the donation!

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

January 2016

DICTA

29

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

PRO BONO PROJECT

By: Terry Woods Project Director

THE ANNUAL “YOU SHOULD PUT THAT IN DICTA” ARTICLE Every month or so, someone discovers a particular Pro Bono Project perk and says, “I never heard that. You should put that in DICTA!” Good idea! Here is version 15.

1.

2.

3.

4.

5.

6.

7.

8.

9.

You get CLE credit for pro bono work! It’s true! You get one hour of dual credit for every five hours of pro bono service you report, up to three hours (with a carryover of three hours to the next year).

[Tenn. S. Ct. R. 21, § 4.07(c)] The Catch: You must provide the service through “court appointment, an organized bar association program or legal services organization” such as the Pro Bono Project, for example. Several years ago, the CLE Commission sent volunteers a bill after we reported their pro bono time. Fortunately, the Commission no longer does that.

You can refer a pro bono file to us! Why would you do that? First, you would get CLE credit, avoid being surety on a cost bond (see # 5), and enjoy all of the other wonderful benefits of handling a Pro Bono Project file. Second, it helps us prove that lawyers really are doing pro bono work. If you already have a pro bono case that was not referred to you by the PBP, let us know. We will have your client sign a couple of forms so that we can open a file and verify the client’s eligibility for our records.

You can withdraw from a pro bono case! Your eyes aren’t deceiving you. The same rules apply to withdrawal from a pro bono case that apply to withdrawing from a fee-generating case. (RPC 1.16) You don’t have to do everything a pro bono client wants! Your ethical duty to perform pro bono services does not trump all other ethical obligations. You don’t forfeit your professional judgment just because your client is indigent. (RPC 3.1) You should not pay expenses for a pro bono client! Surely this needs no elaboration. As for being surety on a cost bond: Don’t!

Security for costs is waived by TCA § 20-12-127, and Supreme Court Rule 29 creates a presumption of indigency for litigants who meet “the Legal Services Corporation’s poverty guidelines,” which includes all PBP clients.

You may seek attorney fees in pro bono cases! The only restriction on collecting attorney fees is that you collect them from the adverse party instead of the client. You won’t get CLE credit if you collect a fee, but hey! use the fee to attend a KBA CLE (see # 7).

You could get a free KBA CLE program! The KBA awards tuition waivers to everyone who performs a specified amount of pro bono service through the PBP: You get a free Lunch & Learn for doing 25 hours of service and a free extended CLE for doing 50 hours of service.

You are covered under LAET’s professional liability insurance policy.

You aren’t likely to need this (because there’s only been one claim filed by a PBP client since the program’s creation in 1982), but you can rest easy with the $1,000,000 coverage the PBP provides when you represent a PBP client. By the way, that’s primary coverage!

Your own policy doesn’t kick in except for excess coverage. And seriously, folks, I can’t think of a situation in which there is $1,000,000 at stake in a PBP case.

You can finally get some long over-due recognition! The PBP gives awards to lawyers (as well as a law student and law firm) who make exceptional contributions to the PBP during the year. These awards are presented along with the KBA Awards (see # 7) at the annual ProBonoPalooza in July. And award winners get their

photos taken with at least one judge!

10. By now you’re probably asking, “So what is pro bono service anyway?” That’s a good question. It isn’t as simple as it sounds.

Rule of Professional Conduct 6.1 says, A lawyer1 should aspire to render at least 50 hours of pro bono publico legal services2 per year. In fulfilling this responsibility, the lawyer should: (a) provide a substantial portion of such services3 without fee or expectation of fee4 to: (1) persons of limited means; or (2) . . . organizations in matters that are designed primarily to address the needs of persons of limited means;5 and6 (b) provide any additional services7 through: (1) delivery of legal services at no fee or at a substantially reduced fee to individuals, groups or organizations . . . ;8 (2) delivery of legal services at a substantially reduced fee to persons of limited means; or (3) participation in activities for improving the law, the legal system, or the legal profession. (c) In addition to providing pro bono publico legal services, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.9 The comments to the rule explain compliance. Comment 9, in fact, seems to offer a reprieve: “There may be times when it is not feasible for a lawyer to engage in pro bono services.10 At such times a lawyer may discharge the pro bono responsibility by providing financial support to organizations providing free legal services to persons of limited means.”

Why are you expected to perform pro bono service and give money to Legal Aid? Comment 10 says, “Because the efforts of individual lawyers are not enough to meet the need for free legal services that exists among persons of limited means, the government and the profession have instituted additional programs to provide these services. Every lawyer should financially support such programs, in addition to either providing direct pro bono services or making financial contributions when pro bono service is not feasible.”

And one more revelation: You don’t have to wait for us to call you! When you are ready for your next pro bono case, call me. Terry Woods, cell 865-384-2175, fax 865-525-5277, email TWOODS@LAET.ORG 1 Translation: “Every lawyer, regardless of professional prominence or professional work load, has a responsibility to provide legal services to those unable to pay.” Tenn. S. Ct. R. 8, RPC 6.0 cmt. [1] 2 Emphasis on “legal services” 3 Emphasis on “substantial” 4 Translation: Unintentional pro bono doesn’t count.

5 Translation: Activities benefiting poor people (i.e. coaching Youth Polo probably doesn’t count).

6 Not “or” 7 Emphasis on “additional” (i.e., service under subparagraph (a) is not enough. Note that I did not write the rules.)

8 Just read the rule; you’ll get the idea.

9 Make your checks payable to “Legal Aid of East Tennessee.”

10 Don’t get excited. “Lack of time” is not an excuse. See Note 1 supra.

The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 502 S. Gay Street, Suite 404 • Knoxville, TN 37902 phone (865) 525-3425 e-mail: TWOODS@LAET.ORG fax (865) 525-1162

30

DICTA

January 2016

THE LAST WORD

Q:

By:

Jack H. (Nick) McCall

Dave, as you retire as Executive Director of LAET, what are your thoughts and “last words” as you survey your career in legal aid?

A:

DAVID R. YODER Executive Director, Legal Aid of East Tennessee

I’ve been doing a lot of reminiscing since I made up my mind and announced my “retirement” plans. Forty years: it has been a wonderful ride. I have met so many incredible people along the way, and many of them being the clients with whom I have worked. I have had the pleasure of meeting and working with all sorts of different people – in government, sciences and the humanities. Personally, I cannot think of anything else professionally that would have given me the opportunity to meet the incredible range of persons that I have in my forty-year legal career.

For example, years ago, I got to serve under the Governor of Michigan, Bill Millikin. He was a Republican. In spite of the local party chairman – who was just convinced I had to be a Democrat – the Governor appointed me to the Michigan Domestic Violence Prevention and Treatment Board. Governor Millikin was the kind of leader and person that the GOP--or any political party, for that matter – needs now. He was an incredible and thoughtful leader, a guy who worked hard and did not yell, and who involved lots of diverse people in government decision-making. He thought more about the people of Michigan than he did about himself – all of the people. At “Bill’s Beefsteak Barbecue” – that was Governor Millikin’s birthday party – I met Barbara Bush. I still find her to be an incredible lady. I was really very impressed with her on that occasion; her energy, intellect and people skills at that event were just amazing.

During my tenure in Gary, Indiana, at the time that the Reagan Administration was gearing up to do away with federally funded legal aid, an effort was being made to eliminate LSC program’s access to training. I decided that we would host a first-annual regional “working conference” for legal aid; it would avoid violations of the new regulations by focusing only on substantive legal training for Legal Aid staffers. We held the conference in a former Sheraton Hotel that had been abandoned; the City of Gary opened and cleaned the place up just for our conference. If that was not enough, I had the incredible treat of getting to meet the late Julian Bond, who had agreed to serve – gratis – as our keynote speaker. I will never forget picking him up at O’Hare and driving him to and from Gary, enjoying a wide-ranging, thoughtful and inspirational discussion with him along the route.

I had the honor of working on the Haley Farm (Alex Haley’s 157-acre farm) project after moving to Knoxville and joining LAET, at the time, KLAS. During that project, I met Maya Angelou and also Marian Wright Edelman of the Children’s Defense Fund. I spent several evenings volunteering with an absolutely incredible group of poets, writers, activists, etc. from around the world.

As I said earlier, mostly, I have found myself recalling the clients – so many of them. As I said at a presentation at the 2015 “Equal Justice University” in Murfreesboro in September, the clients are the ones from whom I have often gotten the strength to keep pushing. So many of them face incredible challenges – challenges, by the way, that would knock most of us completely off our feet – and yet, not only have they survived, but they keep going. Of those clients, the ones I want to single out for special recognition, and who have honored me the most by trusting me to represent them are so many of the victims of domestic violence. They often were scared as hell, and with good reason, but they trusted me to help them face it.

I recall, too, the “good old days” of legislative advocacy, at a time when we could often effectively convince state legislators to change laws that needed to be changed. From the legislation creating the Michigan Domestic Violence Board, to helping get nursing home and housing reform legislation enacted: these were richly rewarding experiences, and the impact they made for the benefit of low-income citizens was absolutely life-changing, for them, but also for me.

I have met wonderful lawyers and judges along the way. I have great faith in our profession. While I am disappointed by too many of our members who have not stepped up to the plate of our profession’s responsibility for access to justice, when you shake out the chaff and get to the grain, we have an incredible number of wonderful people.

Many of the finest clients, social services workers, United Way volunteers and staff, law school Deans and faculty, Bar leaders, lawyers and judges, state legislators and yes, Congressmen (though I still miss Pete Visclosky of Indiana), I’ve found in Tennessee. For the professionalism and friendship shown to me by all, I am truly grateful.

One last word, though, as we look forward to Congressional funding for 2016: While I will be retired by the time this may hit, the U.S. House of Representatives has passed an appropriations bill cutting the Legal Services Corporation’s budget by 20%. If that becomes the 2016 LSC appropriation, some $480,000 will be lost to LAET. Here is what that loss means in real, direct terms: In 1981, we had 81 Legal Aid lawyers providing service across the 26 counties of East Tennessee. Today, that number is just 21 – and, that is before the full impact of 2016 budgetary cuts may fall. Those 81 lawyers in 1981 were entirely funded by LSC and Congress. Today, LAET has to fund our 21 lawyers through forty different funding streams.

Obviously, I cannot tell what all the impacts will be just yet on LAET, but one frequent, incredible disappointment I have had during my 22 years here has not changed. That is the fact that few lawyers are willing to step up and take on the fight for fair funding for Legal Aid and, therefore, take on the fight for fair funding for access to justice. That remains a sore point and an area of critical need.

“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.

January 2016

DICTA

31

NON-PROFIT ORG. U.S. POSTAGE

PAID P.O. Box 2027 Knoxville, TN 37901

KNOXVILLE, TN PERMIT NO. 652

Annual Meeting KBA President Tasha Blakney presided over the Annual Meeting of the Knoxville Bar Association on Friday, December 11, 2015. More than 250 lawyers and judges were in attendance. Ms. Blakney announced that the following KBA members were elected as officers for 2015: Wayne R. Kramer – President; Amanda M. Busby – President-Elect, Keith H. Burroughs - Treasurer, and Wynne du Mariau Caffey-Knight - Secretary. The membership elected the following KBA members to the four open positions on the Board of Governors: Michael Brezina, Carrie O’Rear, Cheryl Rice, and Hon. Steve Sword. Mr. Kramer assumed the presidency of the Knoxville Bar Association at the close of the meeting. Dennis McClane was presented the highest award of the Knoxville Bar Association, the prestigious Governors’ Award and Robbie Pryor was announced as the best DICTA Author for 2015. LeAnn Mynatt was presented with the Courage in the Face of Adversity Award and Sarah Sheppeard was presented with the Don Paine Lawyer Legacy Award. Carrie O’Rear, Mark Castleberry, Jamie Ballinger-Holden and Troy Weston were each presented with the President’s Award.