Practice Tips - Dates, Deadlines, and To-Dos - 10 Practice Tips for Calendaring . . . Page 9 Management Counsel: Law Practice 101 - Wearables in the Workplace: A Double-Edged Sword . . . Page 13
A Monthly Publication of the Knoxville Bar Association
June 2016
TENNESSEE JUDICIAL SELECTION IN 2016
Photo Ops Law Day 2016 On Friday, May 6th, members of the Knoxville Bar Association celebrated Law Day with a luncheon and CLE featuring UT College of Law Professor Judy Cornett. David Yoder, retired Director of Legal Aid of East Tennessee, was presented with the Law & Liberty Award by the Knoxville Barristers.
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DICTA
June 2016
In This Issue
Officers of the Knoxville Bar Association
June, 2016
COVER STORY 16
Tennessee Judicial Selection in 2016
CRITICAL FOCUS President President Elect Treasurer Wayne R. Kramer Amanda M. Busby Keith H. Burroughs
Dwight Aarons 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 Keith D. Stewart
Immediate Past President Tasha C. Blakney
Hon. Steven W. Sword Taylor A. Williams John E. Winters
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President’s Message Practicing Law & Technology in the Twenty-First Century
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Practice Tips Dates, Deadlines, and To-Dos - 10 Practice Tips for Calendaring
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Legal Update Jones v. Windham: the Tennessee Court of Appeals declines to adopt the “preemption rule” for an employer's vicarious liability for negligence of its employee
The Knoxville Bar Association Staff
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Nice Niche Elder Law
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Management Counsel: Law Office 101 Wearables in the Workplace: A Double-Edged Sword
Marsha S. Wilson Executive Director
Tammy Sharpe CLE & Sections Coordinator
Wendy Williams Membership & Operations Coordinator
Lacey Dillon Programs Administrator
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Schooled in Ethics ABA Formal Opinion 474: The Ethics of Referral Fees
CONVENTIONAL WISDOM Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org
Tracy Chain LRIS Administrator
Brittany Headrick LRIS Assistant
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Hello My Name Is Miriam Johnson
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Outside My Office Window It Ain’t Over Till It’s Over
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Tempus Fugit - Time Flies Fascinating Lint
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Well Read Spring Cleaning for the Mind
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Of Local Lore and Lawyers Of Guilt and Ghosts
Volume 43, Issue 6
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.
Publications Committee Executive Editor Executive Editor Executive Editor Editor
J. Nicholas Arning, Jr. Cathy Shuck Chris W. McCarty Lee Nutini
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).
Heidi A. Barcus Melissa B. Carrasco Casey S. Carrigan Kathryn St. Clair Ellis Elizabeth B. Ford Mark S. Graham Rachel P. Hurt Joseph G. Jarret F. Regina Koho David E. Long
DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members.
Managing Editor Marsha Wilson KBA Executive Director
June 2016
Matthew R. Lyon Christina F. Magrans Jeffrey T. Malotte Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Melissa C. Reinders James K. Scott Ann C. Short
DICTA
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Long Winded
24
Lawyer Kids
25
Open Service Project
28
Around the Community
Celebrate
School’s Out for Summer; Lawyer Kids Hit Holiday Road The Second Quarter
Slavery Still Exists: Trafficking and the Exploitation of Human Beings for Profit
COMMON GROUND 4 18 18 18 26 27 29 30 31
Section Notices/Event Calendar Barrister Bullets Word Play Legally Weird Guilty Pleasures Ask McLawyer Bench & Bar In the News Pro Bono Project 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 the fall of 2016. If you have program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Dana Holloway (643-8720). Bankruptcy Law Section The Bankruptcy Section will meet quarterly. To have your name added to the section list, please contact the KBA office at 522-6522. If you have program topic or speaker suggestions, please contact the Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. The Section is planning “power hours” for Pro Bono Week, October 23 – 29, 2016! If you would like to help in planning this event and/or are willing to commit time during Pro Bono Week, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Headrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs: Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. For more information about the section, please contact Section Chairs LeAnn Mynatt (549-7000) or Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like further information on the section, please contact Leah McClanahan (545-4260) or 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). Senior Section The next Senior Section luncheon will be held at 11:30 a.m. on June 15, 2016 at Calhoun’s on the River. The featured speaker with be Bill Haltom, Lewis Thomason, who will speak about his new book “Milk and Sugar, The Definitive Guide to Seersucker.” Members are encouraged to wear seersucker to the program. If you have suggestions for speakers, please contact Chair Wayne Kline at 292-2307. Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and CLE. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Heather Anderson (934-4000) or Tripp White (712-0963).
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DICTA
June ■1 ■8 ■8 ■9 ■9 ■ 11 ■ 14 ■ 15 ■ 15 ■ 20 ■ 20 ■ 20 ■ 23 ■ 23 ■ 24
Fee Dispute Resolution Committee Legislative Committee Meeting Barristers Monthly Meeting Lunch & Learn Judicial Committee Fireflies in the Smokies Professionalism Committee Senior Section Board of Governors Meeting Interprofessional Relations Committee Diversity in the Profession Committee Barristers Access to Justice Committee Barristers Volunteer Breakfast Employment Law Section CLE Family Law Section CLE
July ■6 ■6 ■ 12 ■ 14 ■ 14 ■ 15 ■ 18 ■ 18 ■ 18 ■ 21 ■ 26 ■ 28
Fee Dispute Resolution Committee Law Office Tech Committee Professionalism Committee Lunch & Learn Judicial Committee Barristers Summer Party Interprofessional Relations Committee Diversity in the Profession Committee Barristers Access to Justice Committee TSCPA Interprof. Social CLE Committee Barristers Volunteer Breakfast
Save the Date Annual Supreme Court Dinner September 7, 2016 (see notice on page 2)
June 2016
PRESIDENT’S MESSAGE By:
Wayne R. Kramer Kramer Rayson LLP
PRACTICING LAW & TECHNOLOGY IN THE TWENTY-FIRST CENTURY For those of you who attended the recent KBA Law Practice Today Expo, I suspect that you left feeling, as I did, that as we move forward in the twenty first century, it is more likely than not that the practice of law will continue to change in a dramatic way. Just as the experiences of those of us who are a part of the “baby boomer generation” and older, now seem almost ancient, today’s practice of law will likely appear ancient to attorneys 40 years from now. We are driven by a new reality in the practice of law, one dramatically affected by technological advances and the reality of economic pressures in the post-recession days following 2008 and 2009. The issues raised in our own Law Practice Today Expo, including those involving technology and its impact on lawyers, were “spot on” for all of us practicing law in the early 21st century. Indeed, they are being considered across the country through conferences of the American Bar Association and elsewhere. A time long ago (the Spring and Fall of 1973), as a senior at Maryville College, I was required to research and prepare a senior thesis, and it remains a requirement for all seniors today. In those days, it was often referred to as an independent or special studies project. I was a religion major, and the title of my thesis was “The Humanization of Technological Society.” I recently re-read that thesis and found it interesting, not because I wrote it, but because of the time in which it was written and the questions being addressed in the early days of the new technology. My thesis began with the following statement: This is the age of a scientifically and technologically oriented society in which an emphasis on the humanness in people is perhaps dying a little bit every day. No longer is the world merely our school, our town or our community. Quoted within the body of the thesis was as excerpt from Lewis Mumford’s book, In the Name of Sanity (New York, Harcourt Brace and Company, 1954). In that book, Mumford, an American historian and “philosopher of technology” of the 20th century, said, among other things, the following:
and other technological means. In fact, there are many today who believe over the next 25 years, the notion of a law office, conference rooms, face to face meetings with clients and other attorneys, and many things which have been a part of our experiences for a long time will simply no longer exist. Clients will contact lawyers though their computers, or similar means, will obtain the information and/or advice desired and complete the project without ever even talking to, and certainly without meeting and interacting with, the attorney in any true “human interaction.” It will not happen overnight. It will evolve slowly and it will evolve methodically. It is the reality of the 21st century and yet, just as was true in the spring of 1973, in the end, the answer will never be in the machine but will be in the individuals who run the machines. Our challenge will be to continue to insure that human interaction and understanding the pulse of our clients will be a part of providing and receiving legal services. We do not sell widgets. We advocate. We advise and we counsel. To do so within the context of an ever-changing technological landscape filled with time pressures, economic pressures and a consuming public more interested in quick results than in a long-term reflection will be critically important. Indeed, it will ultimately determine the future of our profession and whether we will be more than merely online sales people. No, technology is not bad in and of itself. In fact, it can be very good, and it certainly is helpful. Nevertheless, as we utilize that potential, we must also “develop the potentialities that exist within us.” In other words, we must always remember that we and our clients are first and foremost human beings and in the end, the solutions to legal problems and conflict are found within us, working with our clients. They are not found in the technology itself. In the early 1970’s the terms “machine” and “computer” were often used to describe the same items. A computer was a machine, as evidenced by large “mainframe” computers at least the size of a refrigerator.
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…We will not summon the political will and intelligence to control the powers that we have unleashed outside us, unless we develop the potentialities that exist within us and project new goals that lie beyond us. And finally, the thesis went on to conclude that the “answer is not in the machine, but rather in the [individual] who runs the machine.”1 It is easy to get caught up in the intrigue of numerous technological gadgets and to ultimately allow them to control how we live our lives and, in our world, how we practice law. There is no question but that technology is an integral part of everything we do, and it would be very difficult to practice law today without the advances that have taken place and that help us to advise and advocate for our clients. It enables us to accomplish many things more efficiently and more effectively. It is and will continue to be a significant part of our daily work. Furthermore, our clients, particularly those under 40, will increasingly seek legal expertise through the internet
June 2016
DICTA
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HELLO MY NAME IS . . . MIRIAM JOHNSON By: Katie Ogle Haynes Meek & Summers
Assistant District Attorney Miriam Johnson has called a few different places “home,” but says that Knoxville has a different feel than these other cities. “Since moving here for law school in 2012, I’ve noticed that people are genuinely interested in getting to know me, and more senior members of the bar are willing to lend advice at any time.” A native of Miami, Florida, Miriam moved to Cookeville, Tennessee during high school, and was involved with the drum line. She then graduated from Tennessee Tech with an undergraduate degree in English Literature in 2012. After taking the LSAT, and beginning her tour of law schools, the University of Tennessee was her top choice, and the first place she visited. In her first year of law school, Miriam’s interest in criminal law was sparked. “I have to give all the credit (or the blame) to Dean Doug Blaze for introducing me to this field. After taking one of his classes, I knew that this was going to be my career.” In her short time as an attorney, Miriam has had no lack of experiences relating to her chosen career field. Following her first year of law school, Miriam was selected to be a summer intern in the Knox County District Attorney’s Office and worked with the DUI unit. After that summer, she was asked to remain as an intern during the school year, and didn’t hesitate to jump on the opportunity. Miriam also served as an intern at the U.S. Attorney’s Office for the Eastern District of Tennessee during her law school tenure. She credits this experience as excellent preparation for drafting legal arguments, as well as a deeper understanding of the justice system. After graduating from law school in 2015 and passing the bar exam, she was offered a full-time position at the Knox County District Attorney’s Office. “Getting used to having my own case load was a bit of an adjustment at first, but now that I’m nine months in, I’m pretty comfortable in second sessions court as a DUI prosecutor.” Miriam also noted that since she’s always been a student, it’s a welcome change to not have any homework after working a full day. So, what does Miriam do with all of her free time now that she isn’t a student? “I love watching t.v.,” says the self-proclaimed Netflix junkie.
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She lists “Empire,” “Blue Bloods,” and “Scandal” as some of her most often watched shows, but there is one series that stands out for her as a true favorite. “I’d be remiss if I didn’t mention “The Big Bang Theory,” Miriam noted during her interview. “I watch it every week, and have been since I started working at the DA’s office as an intern. I’ve seen every episode.” In addition to her Netflix habit, Miriam also includes needlepoint and cross stitching as hobbies that help her relax. “I know they’re ‘old lady’ hobbies,” laughs the young attorney, “but I’ve been doing them since I was thirteen, so it’s just become my ‘go-to’ way to relieve stress.” Not only does she create lovely pieces through needlepoint, but Miriam often works 500 or 1000 piece puzzles to frame or give as gifts. She notes that she primarily likes to work puzzles with landmark scenes, like the Louvre or the Coliseum. Miriam also enjoys visiting her parents in Cookeville, and her Beagle “Josh” who lives with them.
Author’s Note: Many thanks to Miriam for allowing DICTA readers to have a glimpse of her life. If you are a new attorney to the Knoxville Bar Association or if you know of a new attorney that you would like to see featured in this column, please contact the author.
DICTA
June 2016
DICTA EDITORS’ NOTE:
C IR S C UP IS UL E S AT R U E IO N
DICTA is a monthly publication of the Knoxville Bar Association. DICTA is offered to all members of the Knoxville Bar Association as one of the many benefits of membership. This issue represents one of our “super circulation issues” and is sent not only to all members of the Knoxville Bar Association but to all lawyers licensed to practice law in Knox County and all of its contiguous counties, Blount, Loudon, Anderson, Union, and Sevier. DICTA is an important publication to the Knoxville Bar Association and it provides news regarding members and events of the Knoxville Bar Association as well as information on upcoming CLE seminars. It also provides news and notices from the Knoxville Bar Association president, the Barristers, and the Knoxville Bar Association's nineteen different committees and eleven different sections. If you are interested in becoming a member of the Knoxville Bar Association, please contact KBA Executive Director Marsha Wilson at 505 Main Avenue, Suite 50, P.O. Box 2027, Knoxville, Tennessee 37901-2027, (865) 522-6522 or access our award-winning website at www.knoxbar.org.
June 2016
DICTA
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OUTSIDE MY OFFICE WINDOW By: Robert E. Pryor, Pryor, Priest & Harber robertpryorjr.blogspot.com
Jr.
IT AIN’T OVER TILL IT’S OVER You can’t tell by looking at me, but I’m a killer. Most of us don’t know what we are capable of until circumstances bring us to question everything we believe in and transform us into something unrecognizable to our former selves. For me it all began on a cold January morning in 2015. The scratching, pattering feet above my head startled me from sleep at 5:30 a.m. My wife, who heard it first, was sitting up in bed, the remote in her hand scanning channels. I turned, my hair in full bed-head mode, my eyes still full of sleep and the insane look of a crazy man directed at her face. “Squirrels,” she said. Fact - squirrels can dig through wood siding and love to make nests in soffits. The soffit above my bedroom ran the length of the house and directly above the headboard to our king-sized bed. They must have done most of their work while I was away at work, for I certainly would've heard them burrowing into the side of my house had I been present during construction. Regardless, the work was done and the nest settled before I heard the first evidence of the squatters on that cold winter morning. They were having a house-warming party. Perhaps they abandoned the stealth with which they entered my home because they were lulled by the misperception no one cared about their intrusion, but I suspected, and soon became convinced, that the noise was all part of a grand plan. After locating the newly formed hole, I vowed to my bride that I would not hurt the little guy or his friends but would instead trap them, fix the hole, and return all trespassers to their natural habitat. I’m not a hunter. Never have been. I’ve never owned a gun. I’m not a member of PETA, but I do love animals, especially if they are cute. Squirrels are cute, at least I used to think so. Long story short - two weeks later I discarded three $30 traps and made my way to Gander Mountain. That place has everything. When I entered, sleep deprived and full of murderous rage and hatred, I was prepared to price AR-15’s and flame throwers. A knowledgeable and bearded gentleman in the firearms department said that all I needed was the Crossman BB/Pellet gun. Hell, there was even a photo of a squirrel on the box. Perfect. The man handed me some plastic-tipped-hollow-point pellets and I was in business. If your testosterone is low, you’ve been castrated in a lawn maintenance accident or you are just feeling inadequate as a man, head on down to “The Mountain” for an afternoon. Don’t wear loafers. After paying another man with a beard, I exited the store, ripped open the box, slid one in the chamber and strolled across the parking lot to my car like a gangster with strict instructions. Once inside my car, I fired up the engine, put on my sunglasses and turned up Thunderstruck by AC/DC. It was time. The hunt began that evening. Sometimes they would dance their war dance in the early evening, but it was in the mornings when the party really got started. When Nancy or I would hear the antagonizing patter of feet, I’d grab the gun, my hat and gloves, and sneak quietly out the side door. My furry adversaries turned out to be a worthy enemy. I missed many opportunities early on because of my approach and lack of skill. I’d startle them or make myself too obvious. It only took a couple of misses and they were on to me. My first kill was by sheer luck. I walked around the side of the house and caught him outside the hole and on the roof. I’ll spare you the gore, war is not pretty. It took several shots. A forensics and ballistics report would destroy any self-defense claim. I felt no guilt and actually spit on the bastard. Keep in mind, I’d not slept past 5:30 for a couple of weeks. I left his carcass outside on the
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ground beneath the entrance/exit hole as a reminder to all of his friends that a cold-stone killer was in the neighborhood. The dancing increased, and I swear they began singing every morning. Were those instruments? Several trips to “The Mountain,” to restock on ammunition and three or four kills later, the sounds from above convinced me a lone squirrel remained. For the next 3 weeks he played the Roadrunner and I the Coyote. I could not lure him from his warm home inside my home or I’d miss him sneaking in. I’d run around the yard chasing him, firing indiscriminately out of frustration, bullets pinging off the front door and basketball goal. More than once, my wife said, “You’ve lost your mind.” As the commercial says, “Dad says it’s personal this time.” He mocked me, scampering and laughing at all hours of the day, calling out my name while I slept, and burrowing just as deep inside my mind as he was inside my house…until February 26, 2015. I stood behind a tree at 6:30 a.m. It was 23 degrees and snow was on the ground. I peeked around the edge of the tree looking for my enemy. He knew I was there, somewhere, waiting. I slowly took aim. Right before I pulled the trigger a maniacal smile grew on my face. The shot caught him right behind the ear and he fell back into the hole. I hit the game-winning shot with no time on the clock. I got the gold medal. I celebrated like I’d won the lottery. I’ve always been a gracious loser but a terrible winner. It’s never been enough to cross the goal line, Pryors have to spike the ball. After my end zone dance, a dilemma became clear - I had to climb up and remove the body or the smell would invade my home. I actually considered taking the little fella to the taxidermist. I was about halfway up, 12 feet off the ground, when the extension ladder moved slightly to the left. Then, in slow motion and without a bit of effort on my part, I watched as the end of the ladder released whatever hold it had on the end of the house and I immediately understood the meaning of Karma. During the moment I was in free fall, before I lay in the snow on top of the fallen ladder unable to breathe, before crawling into my own house covered in snow and mud, before the x-rays and the diagnosis of three fractured ribs, before all that came next, I knew I would always be the Coyote. Well played my little friend. Well played.
DICTA
June 2016
PRACTICE TIPS By:
Rachel Park Hurt Arnett, Draper & Hagood
DATES, DEADLINES, AND TO-DOS 10 PRACTICE TIPS FOR CALENDARING If your life is like mine, everything is calendared - hearings, depositions, meetings, events, committee and board activities, family time, personal time, to-dos, etc. I calendar everything (just ask my staff who gets to read, usually with enjoyment, where I have calendared when I need to pressure wash the driveway, restock the diapers, and call friends). If I don’t get the task on the calendar, I know I will forget, or worse, won’t make the time. Done the right way, a well-kept calendar can keep you more than organized; it can improve your efficiency, reduce your stress, and, if you are really lucky, facilitate a manageable work/life balance. So, being someone who lives and dies by the calendar, here are some tips: (1) Calendaring ALL deadlines, hearings, depositions, and meetings is a MUST to a good practice and necessary to avoid a call from the Board of Professional Responsibility. The Rules require competence, promptness, preparation, and diligence (at a minimum). See Tenn. S. Ct. R. 8, RPC § 1.1; 1.3; 1.4. Missing a Scheduling Order deadline, a hearing, a statute of limitations, etc. can be devastating to a case and/or the client. At best, a calendar failure causes unnecessary stress and anxiety. (2) Consider a priority system. I color code. My Outlook calendar has 19 different colors that I have assigned to certain topics, including: Trial = red (for obvious reasons); Yellow = Deadlines; Pink = My Daughter (again, obvious reasons). My Outlook program offers 25 different colors. I know what colors I cannot ignore (Red, Yellow, and Pink are at the top). Other colors, like to-dos, are usually less critical. So, brighten your day and start coloring. (3) Use technology. To me, smart phones and electronic calendaring are a given. I have used both my entire practice, and it is all I know. But, there are other useful resources as well. Although these tech apps and websites are beyond the scope of this article, one example is: http://www.timeanddate.com/date/dateadd.html. This website allows you to count days when the Scheduling Order says “150 days from trial”. With this website, you don’t have to flip through the calendar counting days. With the push of a button, the days are calculated. (4) Put all the detail in the calendar: names, telephone numbers, contact information, directions, and details of the event (who is being deposed; what motion is being heard, etc). Running late to a scheduled event and not being able to find the important details can be very stressful. This is avoidable stress if calendar entries are complete on the front end. (5) Employ help. I rely heavily on my paralegals, who, in my humble opinion, are the best. With me, it takes a village, and I can admit that. In addition to keeping me updated, verified, and reminded with all things calendar related, they also, on occasion, add calendar appointments like, “Go home, hug your daughter, and have a drink.” And, if it is on the calendar, it will be done! (6) Review your calendar. I look at mine daily (at the end of the day for the next day) and weekly (usually on Friday for the following week). It does not help to have everything calendared and then fail to look to see what lies ahead. Just showing up to an event is usually not enough. Being prepared also helps. By looking at the calendar in advance, you know for what you need to be prepared. (7) Make sure you block out personal time. I diary exercise (or I did in June 2016
2012, which was the last time I did exercise), playdates, car washes, house cleaning activities, golf, etc. As my schedule fills up, I want to make sure that I also provide time for me, my family, and my outside-the-office responsibilities (like restocking the diaper supply). (8) Keep a back-up calendar. In addition to my electronic calendar, which is all I reference 98% of the time, I also keep a paper calendar. I do this for two reasons. One, in case there is confusion, I refer to the paper calendar, assuming that I won’t err twice. Second, I have been told (but have not confirmed) that my professional liability insurance policy requires that I keep two calendars. Not wanting to take the chance, I go with what I have been told. Do you know what your policy requires? (9) Email yourself reminders. Another useful calendaring technique is to email yourself in the future. For example, you send a letter to opposing counsel asking for deposition dates. You then send yourself an email to be received 10 days in the future. In the body of the email I type, “Rachel, have you heard from attorney X about deposition dates in the case of Y?” This email prompts me to reach out to opposing counsel again. After I have connected with the attorney, I email myself in the future again. This process goes on until the depositions are set. This practice keeps my cases moving and keeps me on track with outstanding matters.1 (10) Make a cheat sheet of deadlines important to your practice. I have a cheat sheet for appellate practice deadlines from the time a notice of appeal is given through the time the Supreme Court opinion is published. I have cheat sheets for local rules and the Tennessee Rules of Civil Procedure. This way, when a timing issue comes up, I am not spending precious time looking for the applicable rule again and again to see how many days I have to take the necessary action. Those are my tips. These and $3.49 will buy you a tall coffee at Starbucks. 1 To do this, simply write your email and before hitting “send”, switch to “Options”, and then click “request a Delay Delivery”. In the “Do not deliver before” field, enter the date and time the message should be sent.
DICTA
Please note the following correction to the Practice Tips article from the May DICTA. Under the “Notice” section of the article about Detainer Warrants, it stated that if the tenant does not cure the breach within fourteen (14) days, the landlord may take legal action (filing the detainer warrant) only after thirty (30) days have elapsed from the date of the notice. This is no longer the case. Now, the landlord may file the detainer warrant after simply giving the tenant fourteen (14) days to cure after notice of the breach has been given. In addition, if the breach is remedied, but the tenant breaches the agreement for a second time within six (6) months, the notice of the breach only has to be provided seven (7) days in advance of filing the detainer warrant, no longer fourteen (14) as the article states. The notice requirements in the article were from the 2010 version of the Code, but these two have since changed.
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DICTA
June 2016
L E G A L U P DAT E By: Hannah S. Lowe Trammell, Adkins & Ward, P.C.
JONES V. WINDHAM: THE TENNESSEE COURT OF APPEALS DECLINES TO ADOPT THE “PREEMPTION RULE” FOR AN EMPLOYER'S VICARIOUS LIABILITY FOR NEGLIGENCE OF ITS EMPLOYEE The Tennessee Court of Appeals recently released Jones v. Windham, in which the court addressed an issue of first impression in Tennessee: whether a plaintiff may proceed with a direct negligence claim against an employer when the employer has admitted vicarious liability for the negligence of the employee, or whether the claim is preempted by the admission of liability.1 In the 2-1 decision, authored by Arnold Goldin, with J. Steven Stafford joining2, the Court of Appeals held that a plaintiff may proceed with a direct negligence claim when an employer has admitted vicarious liability for the acts of the agent.3 Jones arose out of an automobile accident of March 23, 2011. Shavonna Windham (Windham), a van driver for a daycare, struck and injured a minor child while driving in the course and scope of her employment. The minor child's mother, Melanie Jones ( Jones), timely filed a lawsuit in the Shelby County Circuit Court seeking damages on behalf of the child and for her own claims related to loss of consortium.4 In addition to claims against Windham for negligence, Jones also alleged claims against Windham's employers, Remark and Kimberly Chism (Employers), for vicarious liability for Windham’s negligence.5 Jones also alleged direct negligence claims against Employers for negligence per se, negligent hiring, and negligent retention.6 In addition to compensatory damages, Jones sought punitive damages against all defendants.7 Employers filed an answer to the complaint, in which they admitted that the doctrine of respondeat superior applied and conceded that they were vicariously liable for the negligence of their employee.8 Employers later filed a motion for partial summary judgment on the direct negligence claims, in which they proposed a rule whereby a plaintiff would be prevented from pursuing a direct negligence claim against an employer once that employer has admitted vicarious liability.9 Employers also sought summary judgment on the punitive damages claim.10 Jones argued that the proposed rule was inconsistent with Tennessee's modified comparative fault scheme.11 She further argued that even if the trial courts were to adopt the proposed rule, the direct negligence claims should be permitted in this case because those claims were accompanied by a claim for punitive damages, and many states that follow the proposed rule make an exception when direct negligence claims are accompanied by a claim for punitive damages.12 The trial court granted Employers’ motion as to the direct negligence claims, but denied it as to the punitive damages claim.13 Jones moved for an interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure, which was denied.14 She then sought an extraordinary appeal under Rule 10, which was granted.15 On appeal, the appellate court observed that other jurisdictions are fairly evenly split on the issue of whether a plaintiff may proceed with a direct negligence claim against an employer when the employer has admitted vicarious liability; with the conflicting rules referred to as the “preemption rule” and the “non-preemption rule.”16 The preemption rule bars a direct negligence claim such as negligent entrustment or negligent hiring against an employer when the employer has admitted vicarious liability for the actions of its agent.17 The main concern underlying the rule is that independent negligence claims – which are most often supported by prior bad acts of the employee – can be used to introduce evidence that would unduly influence a jury’s decision on the issue of the employee’s negligence.18 Under the preemption rule, an independent negligence claim is considered to confer no benefit on the plaintiff once the employer has admitted vicarious liability, and the employer effectively becomes strictly
liable for the damages attributable to the agent.19 Under the non-preemption rule, the employer’s admission of an agency relationship from which vicarious liability may arise does not preempt a claim that the employer’s own independent negligence may have caused or contributed to the injury.20 “[T]he legal theories supporting claims of independent negligence do ‘not rest on the employer-employee relationship, but rather involve the employer’s own negligence in entrusting, hiring, supervising, training, or retaining an employee with knowledge, either actual or constructive, that the employee posed a risk of harm to others.’”21 The appellate court ultimately held that the preemption rule is not in accord with Tennessee’s system of comparative fault, and an employer’s admission of vicarious liability does not bar a plaintiff from proceeding against the employer on independent negligence claims.22 Although the court recognized there are concerns a jury could become prejudiced by evidence used to support an independent negligence claim, it reasoned that “appropriate procedural safeguards can be employed by the trial court to mitigate against any potential unfairness.”23 Given its ruling that the preemption rule should not be adopted in Tennessee, the appellate court reversed the trial court’s dismissal of Jones’ direct negligence claims against Employers.24 The dissenting opinion argues that Tennessee should adopt the preemption rule, on the basis that it is improper to allow a plaintiff to proceed against an employer on a negligent hiring or negligent supervision theory of liability where the employer has admitted respondeat superior liability for the employee’s negligence.25 In Judge Gibson’s view, adoption of the preemption rule is not inconsistent with Tennessee’s comparative fault principles, and once an employer has admitted vicarious liability, “[a]dditional theories of negligence serve no real purpose.”26 Judge Gibson suggested that the torts of negligent hiring, negligent supervision, and negligent retention should only be available to a plaintiff for tortious action of employees that fall outside of the scope of their employment; i.e. outside of the doctrine of respondeat superior.27 Judge Gibson opined that Tennessee should adopt the preemption rule with an exception for verifiable claims for punitive damages, as “adoption of the preemption rule would encourage employers to take responsibility for the negligent conduct of their employees while still appropriately compensating plaintiffs for injuries.”28 A Tennessee plaintiff may therefore continue to pursue a direct negligence claim against an employer who admits vicarious liability for the actions of its employee. It remains to be seen how the Tennessee Supreme Court might ultimately come down on this issue. 1 Jones v. Windham, W2015-00973-COA-R10-CV, 2016 Tenn. App. LEXIS 182 (March 11, 2016). 2 Judge Brandon Gibson authored a dissent. 3 Id. at *15-17. 4 Id. at *2-3. 5 Id. 6 Id. 7 Id. 8 Id. at *4-5. 9 Id. at *5. 10 Id. 11 Id. 12 Id. 13 Id. at *6. The Court of Appeals noted that although the trial court's order did not provide specific legal grounds for its decision as required by Rule 56.04 of the Tennessee Rules of Civil Procedure, it was apparent that the trial court attempted to adopt the employer's proposed rule when it granted summary judgment on the direct negligence claims. Further, it was unclear why the trial court did not dismiss the punitive
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NICE NICHE By: Amelia Crotwell Elder Law of East Tennessee
ELDER LAW •
What is your primary practice area?
My primary practice area is elder law with a strong emphasis on Life Care Planning, which is a comprehensive approach to tackling the challenges of aging and disability. And, by the way, I love what I do. By combining the skills of elder law attorneys, licensed clinical social workers, and public benefits advisors, my firm helps families prepare for the unexpected as well as find and pay for the care they need. We protect what matters most to our clients: safety and quality of life for loved ones, cherished relationships within the family, hard-earned savings, and peace of mind. •
How did you decide to become an elder law attorney?
After a decade of practice, I was disenchanted with civil litigation and found working outside the courtroom to find practical, efficient solutions for clients to be much more satisfying. I also love the population that I work with: typically retired people with families who have worked hard and now are grappling with a chronic illness that presents challenges in every aspect of their lives. They are so grateful for our assistance and I get a lot of personal satisfaction out of the relationships we form. •
What does a normal week look like for an elder law attorney?
For me, a normal week is highly structured. I typically take no more than four 2-hour consultations for new clients. On Tuesday and Friday mornings, we have case review in which attorneys and staff touch on every case and have an in-service training. Tuesday afternoon is quiet time for drafting and research. Friday mid-day I mentor associate attorneys and review the week with my office manager. I return phone calls in three, 1-hour blocks during the week. The rest of my week is scheduled with current clients for strategy sessions, signings, CLE or bar events, marketing, and steering the practice. •
What types of problems or issues do you typically deal with for clients?
We love our proactive and planning ahead clients who want to get their affairs in order and save their kids worry and stress, but many of our clients don’t seek us until crisis occurs. They have experienced a
LEGAL UPDATE
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•
Is there anything people would find surprising about your practice?
I wanted to have a non-traditional law firm. Our purpose is to deliver customized services with honesty, respect, and compassion. People may be surprised by the range of services we offer and problems we address beyond traditional planning. Clients are amazed by the amount of support our care coordinators provide, including home visits to assess health and make recommendations; advocacy with doctors and residential facilities to ensure the best possible care; and emotional support and educational classes for family caregivers. A client may come to us seeking a discrete service, like a will, but they learn we can address their care needs and find ways to pay for care so they form a long-lasting relationship that allows us to do so much more in their lives.
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damages claim against the employers when it chose to dismiss the direct negligence claims, since under Tennessee law there can be no claim for punitive damages when there is no claim for actual damages. Id. at *6, n. 4 (citing Goodale v Langenberg, 243 S.W.3d 575, 585 (Tenn. Ct. App. 2007)). 14 Id. 15 Id. at *9. 16 Id. at *11. 17 Id. at *11. See, e.g. McHaffie v. Bunch, 891 S.W.2d 822, 826 (Mo. 1995). 18 Id. at *11-12. 19 Id. at *12-13. 20 Id. at *13 (citing MV Transportation, Inc. v. Allgeier, 433 S.W.3d 324, 337 (Ky. 2014)). 21 Id. at *14. 22 Id. at *15. 23 Id. at *15-16. The “procedural safeguards” suggested by the court included appropriate jury instructions regarding the permissible use of evidence submitted in the case, or bifurcating the trial under Rule 42.02 of the Tennessee Rules of Civil Procedure.
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dramatic change in health that has triggered anxiety about the future. The trigger might be a dementia diagnosis, a stroke that renders an elder suddenly unable to live alone, or an injury that leaves a previously healthy individual with a limiting disability. They ask, “How will we pay for care?” “How can I avoid going to a nursing home?” “Will mom lose her house if she qualifies for TennCare?” or “Will this affect my public benefits?” Our team meets our clients wherever they are in their planning or crisis and addresses their short- and long-term legal, financial, and care challenges. Our legal team ensures that assets and health care are handled according to the client’s wishes, even if he or she later becomes unable to communicate. Meanwhile, our care coordinators work with the client and family members to develop a utting together a strategic plan to maintain action plan for the client is independence for as long the most creative, intuitive as possible. Typical services for a client part of what we do and next to the include establishing a client contact, is my favorite part of sound estate plan, the practice. protecting assets, assisting in qualifying for public benefits like TennCare or Veterans benefits, assessing options for care providers, advocacy with facilities, and guiding the client and family members through informed decisions about how, where, and by whom care will be provided. Putting together a strategic action plan for the client is the most creative, intuitive part of what we do and next to the client contact, is my favorite part of the practice.
24 Id. at *28. The court noted that the ruling on the first issue before the court mostly pretermitted the second issue of whether the trial court erred in dismissing all claims for compensatory damages against the employers while allowing a claim for punitive damages to proceed, and while the trial court’s ruling that a punitive damages claim could proceed where a direct negligence claim could not was inconsistent and untenable, the inconsistency no longer existed in light of the court’s finding that the preemption rule did not apply. 25 Jones v. Windham, W2015-00973-COA-R10-CV (Tenn. Ct. App. 2016). *As of the time of publication, the dissenting opinion was not available to the author on LEXIS, and therefore the LEXIS citations are not available for the dissent. 26 Id. at p. 3 of the opinion available via the Tennessee Administrative Office of the Courts: http://www.tncourts.gov/sites/default/files/jonesmelaniedis.pdf. 27 Id. at p. 5. 28 Id. at pp. 6-7. Judge Gibson further noted that he was unable to determine on the record before the court whether the punitive damages exception would apply in this case.
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June 2016
MANAGEMENT COUNSEL: LAW OFFICE 101 By:
Brandon L. Morrow Kramer Rayson LLP
Wearables in the Workplace: A Double-Edged Sword A few years ago, my wife, Jenny, received a Fitbit1 as a gift. In case you’re unaware (or have been living under a rock), a Fitbit is an activity tracker, usually worn on the wrist, that measures the number of steps walked, heart rate, quality of sleep, steps climbed, and other personal metrics. Since that time, she has become semi-obsessed with getting her “10,000 [steps] a day.” However, I digress. The point is that the Fitbit is, perhaps, the most popular example of a relatively new trend: wearable technology. Wearable technologies or just “wearables” are clothing or accessories that incorporate computer and advanced electronic technologies.2 This category includes more than just the Fitbit – the Apple Watch, Google Glass, GPS access cards, and even the iPhone are all examples of wearable technologies. Like most emerging technologies (i.e., smartphones, social media, etc.), wearables are making their way into the workplace. The potential benefits to utilizing wearables in the workplace are endless, but so are the pitfalls. Potential Uses for Wearables Wearables improve logistics. For example, the "pickers" who work in Amazon warehouses wear GPS tags and have handheld scanners that tell them the most efficient route to take to collect an item for delivery. Some companies have gone even further, issuing glasses that incorporate high-definition cameras to scan bar codes. This process ensures the correct item is pulled for shipment to minimize returns, direct the sequence of item selection to improve efficiency, and advise of fragile items to prevent breakage. Wearables are replacing ID badges. A wearable device can act as an access card or badge to provide entry to workplaces, worksites, or computer systems, thereby reducing the need for key cards or passwords. In the First Tennessee Plaza, where my office is located, the security guards employ wearable technology to “check in” after they have secured each floor. Adhesive geotag barcodes are placed on each floor, and guards are required to scan the barcodes with a smartphone-like device to signal that they have visited each area. Some of the most popular uses for wearables are for employee wellness programs, which companies are adopting, at least in part, to rein in soaring health care costs. Companies are issuing Fitbits or similar devices to employees to encourage and, perhaps, track physical activity. Potential Pitfalls for Employers
employers should be careful not to utilize the technology in a way that runs afoul of the law. For example, under the National Labor Relations Act, employer surveillance of employees engaged in Section 7 activities, such as union organizing, is generally considered an unfair labor practice.4 If an employee wearing a device attends a union meeting during a break with a recording feature on, the employer might be accused of spying on the meeting and, thus, violating Section 7 rights. As mentioned earlier, the Fitbit can track the amount of sleep an individual gets each night. If an employer is aware that an employee has not slept much in recent days, does the employer have a duty to ensure the employee does not operate any heavy machinery or otherwise perform any tasks that may be dangerous if sleep deprived?5 Privacy Issues Some employees may be skeptical of wearables in the workplace. And perhaps, rightfully so. What data will be collected? Who will be privy to it? And what measures are being taken to ensure that it is secure? Employers may be able to alleviate some of these concerns by providing notice to the employees, having policies about how the technology will be used, what information will be collected, and ensure that the policies are employed and enforced consistently across the workforce. These policies and procedures should cover why and how wearable technology will be used with as much specificity as possible. As with any workplace policy, employees should be trained on the specific components of the policy. Following the training, employers should obtain a written acknowledgement signed by employees stating their understanding of the policies and procedures and consenting to the business use of the information and data obtained using wearable technology. Looking Forward There will likely be some legislation spawned by wearable technologies being put to use in the workplace. Similar to what happened when employers began accessing social media accounts, state legislatures will likely step in with legislation to regulate the use of this fairly new technological concept.6 In an emerging field where there are more questions than answers, some guidance would be helpful. Stay tuned . . . maybe even on a high-tech, wearable device. Fitbit, Inc., https://www.fitbit.com. What is a Wearable Device? WearableDevices.com, http://www.wearabledevices.com/ what-is-a-wearable-device. 3 Patience Haggin, As Wearables in Workplace Spread, So Do Legal Concerns, Wall Street Journal, March 13, 2016, http://www.wsj.com/articles/as-wearables-inworkplace-spread-so-do-legal-concerns-1457921550. 4 See, e.g., Auto. Plastic Tech., Inc., 313 N.L.R.B. 462, 466-67 (1993) (surveillance of employees distributing union literature was unlawful); see also Brent G. Tabacchi, Note, Randell Warehouse of Arizona: Surveillance, Coercion, and the Unionization Campaign, 2001 U. Ill. L. Rev. 911 (2001) (discussing employer surveillance in union organizing campaigns). 5 Scot Thiel, Wearables at Work: Data Privacy and Employment Law Implications, DLA Piper, April 22, 2016, https://www.dlapiper.com/en/latinamerica/insights/publications/ 2016/04/wearables-at-work/. 6 See, e.g., Tenn. Code Ann. § 50-1-1001 et seq. (“Employee Online Privacy Act of 2014”). 1
As is the normal course, technology is outpacing the law at an exponential rate. The result is that we have more questions than answers, at least at this point, about wearables in the workplace. For example, if productivity data from wearables is used to assess performance, could less active employees use this metric as a basis for a disability discrimination claim?3 What about if the data indicated that an employee might have a disability, does this trigger the employer’s duty to engage in the interactive process? Even if the employee never mentioned it herself? A wearable device, such as Google Glass (or even an iPhone), has the capability to record audio and video. If these items are issued to employees, for warehouse scanning or any number of uses, then
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About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Cathy Shuck at 541-8835. June 2016
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June 2016
TEMPUS FUGIT – TIME FLIES By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.
FASCINATING LINT By all accounts, Aldus Manutius was an unassuming man. Aldus was born and raised in a small town with his three sisters; he studied the classics at the local universities and in his early thirties, settled down for a career as a teacher and writer of educational aids for students.1 Except for a six-day stint in the local jail (he was suspected of hooliganism), Aldus’s life did not seemed destined for the history book or a Harry Potter novel for that matter, despite the obvious similarities to one particular wizard headmaster who also was a teacher, writer and suspected hooligan. But, despite his initial efforts, Aldus was not destined for obscurity. For most people, a mid-life crisis results in a motorcycle, a puppy, or a tattoo of Judy Garland. For Aldus, turning 40 meant leaving academia for a career in an emerging profession which relied on an untested new technology to bring a product to a market that did not exist.2 One can only wonder what Mrs. Manutius had to say about that. Of course, with a husband whose motto was fastina lente (“make haste slowly”),3 Mrs. Manutius may have had a lot more to worry about than her husband’s midlife crisis. As an aside, one suspects the motto was not the correct response to the question, “Honey, did you take out the trash?” At the age of 40, Aldus abandoned a career in education to open his very own print shop. This was a bold move considering Gutenburg’s printing press was barely twenty years old at the time, and there really was not a market for published works outside the religious realm. Undaunted, Aldus decided to make his own market by publishing, of all things, a book of Greek grammar, Erotemata written by Constantine Lascaris.4 Four years later, he had printed a book of Latin grammar, Institutiones grammaticae.5 Both would have made the New York Times bestseller list, if the New York Times had been around to make such a list. From books on grammar, Aldus turned to publishing the works of various authors, most of which were so famous they, like Bono and Madonna, had been reduced to only one name: Aristotle, Herodotus, Homer, Plato, Erasmus, Euripides, Sophocles, Virgil, Dante, and of course, Aesop himself.6 Without Aldus, parents and teachers everywhere would have missed out on pithy sayings things like, “familiarity breeds contempt,”7 and “do not count your chickens before they are hatched.”8 What Aldus and his company, the Aldine Press, did that no one else was doing, was print these works in small typeface so they could “be held in the hand and learned by heart by everyone.”9 He essentially invented the paperback.10 Keep in mind that each letter, each word, each paragraph, and each punctuation mark of each page had to be carefully set by hand—backwards—before a single page of a book could be printed. This was an improvement from copying books by hand, but the amount of effort required to identify and correct an error BEFORE it was memorialized in print would have made typesetters legendary, if any of them ever left their careful proofreading to see the light of day. As it turns out, the motto fastina lente was a good one for someone in that business. If a devotion to grammar and the invention of proofreading and paperbacks were not enough to elevate Aldus Manutius to hero status in
June 2016
the legal community, Aldus made his mark in two other ways which attorneys use to this day. You see, Aldus was the first to use the phrase, “this page left intentionally blank” (or at least the Latin and Greek equivalents of the phrase) in a book so bookbinders wouldn’t be concerned that they had missed something.11 Where would the legal profession be without that helpful phrase or its equivalent – “paragraph 7 intentionally deleted” – to keep us and the Courts from reading too much into the white spaces? Even more significantly, Aldus invented italics.12 Actually, it was Aldus’s typecutter, Franceso Griffo, who initially cut the wooden blocks into those beautiful, compact, slightly slanted letters, but Aldus was the one who put them in print.13 Without Aldus and his printing company, we would have to use the less attractive underline to cite to case names or movie titles. Without the italic typeface, “fastina lente” just looks like the spell-checker forgot to correct the phrase “fascinating lint.” Italics give foreign phrases an exotic flare. Most importantly, how could counsel indicate written sarcasm without this typeface? Don’t tell me the phrase “Defendant argues the light was green” carries the same punch as “Defendant argues the light was green.” That slight slant to the right makes me question the color of the light and Defendant’s motives. Why does this matter? The legal profession is the art and science of words. It is easy to take for granted the basic things that make words work: grammar, careful proofreading, italics, and even the reassurance that a blank page has purpose. By giving us these tools, Aldus has left an indelible, italicized mark even if few still know his name. To the others who, through attention to detail, thoughtful risk-taking, and hard work are quietly leaving their own indelible mark on the legal profession, fastina lente – keep making haste slowly. 1 Encyclopedia of World Biography 2004, Aldus Manutius, Encyclopedia.com, http://www.encyclopedia.com/topic/Aldus_Manutius.aspx, last visited May 9, 2016. 2 Id. 3 Id. 4 Encyclopedia Britannica, Aldus Manutius the Elder, http://www.britannica.com/ biography/Aldus-Manutius-the-Elder, last visited May 9, 2016; Encyclopedia Britannica, Constantine Lascaris, http://www.britannica.com/biography/Constantine-Lascaris, last visited May 9, 2016. 5 Encyclopedia of World Biography 2004, Aldus Manutius. 6 Encyclopedia Britannica, Aldus Manutius the Elder. 7 Aesop, The Fox & the Lion, in Aesop’s Fables, available at http://www.pageby pagebooks.com/Aesop/Aesops_Fables/The_Fox_and_the_Lion_p1.html. 8 Aesop, The Milkmaid & her Pail, in Aesop’s Fables (Univ. .Mass Amherst) available at http://www.umass.edu/aesop/content.php?n=23&i=1. 9 Jennifer Schuessler, A Tribute to the Printer Aldus Manutius & the Roots of the Paperback (N.Y. TIMES, Feb. 26, 2015) available at http://www.nytimes.com/ 2015/02/27/arts/design/a-grolier-club-tribute-to-the-printer-aldus-manutius.html. 10 Id. 11 Id. 12 Encyclopedia Britannica, Aldus Manutius the Elder. 13 Encyclopedia Britannia, Italic, http://www.britannica.com/topic/italic (last visited May 9, 2016).
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TENNESSEE JUDICIAL SELECTION IN 2016
Tennessee’s judicial selection process has been somewhat of a moving target for the last several years. Fortunately, the process has been clarified through a series of legislative, constitutional and executive actions, and we have finally settled (at least for now) the procedures applicable to filling vacancies in both the trial and appellate courts in Tennessee. You may recall that for many years judicial selection in Tennessee was conducted by a statutory process, first enacted in 1971, which provided for the Governor to fill judicial vacancies from a list of names selected by an appointed Judicial Selection Commission. This process, which the Legislature modified from time to time over the ensuing 30-plus years, came to be known as “The Tennessee Plan.” In 2009, the General Assembly passed a wholesale replacement of the Tennessee Plan.1 The new statute provided for a 17-member, legislatively-appointed advisory body, known as the Judicial Nominating Commission (“the JNC”), to select a panel of three candidates from which the Governor would name an appointee. The JNC was tasked with reviewing applicants for all judicial vacancies, interviewing the candidates and providing the governor a list of the three candidates it selected as best qualified, which the governor could then accept and appoint one of the three, or reject and call for a second panel of three nominees. Appointed judges then sat for election (a retention election in the case of appellate judges) every eight years. That statutory scheme contained a 2-year sunset provision, which caused the JNC to “sunset” absent periodic re-authorization by the legislature.2 Ultimately, the legislature chose to sunset the JNC and it terminated effective June 30, 2012, with one year to wind up its business.3 At the same time, the legislature was wrangling with how best to rectify many years of controversy over the Tennessee Plan, centered
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on concerns that it failed to comport with Tennessee’s Constitution, which provided for judges of the Supreme Court to be “elected by the qualified voters of the state.”4 Those efforts resulted in proposed Amendment 2 to the Tennessee Constitution, which provided for the governor to appoint justices of the Supreme Court and judges of any intermediate appellate court with confirmation by the legislature and, thereafter, election in a retention election. Amendment 2 was passed by the 107th General Assembly and, following required publication, it was passed again by the subsequent General Assembly and was then placed on the November 2014 election ballot for the people of Tennessee to accept or reject.5 While the JNC wound up its operations on June 30, 2013, Amendment 2 would not be voted up or down for some 16 months. In order to continue orderly operations of the judicial branch in the interim, some provision for filing vacancies was needed. Governor Haslam asked then-Attorney General Robert Cooper to opine on the question of how operation of the judicial branch of Tennessee’s government could continue and what authority the governor possessed to fill a judicial vacancy at that point. In response, General Cooper issued an opinion in which he reviewed the entire statutory scheme.6 He noted T.C.A. §17-4-113(a) provided that if the JNC “does not furnish the Governor three nominees within 60 days of notice of a vacancy” the Governor may fill the judicial vacancy.7 While the legislature had terminated the JNC, General Cooper noted it did not repeal that particular statutory provision, which he found to be a failsafe provision applicable in all situations in which the JNC failed to act, including when the JNC was terminated and therefore unable to act. He therefore concluded that, despite termination of the JNC, the Governor retained statutory authority to
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appoint judges to fill trial and appellate court vacancies.8 Following General Cooper’s issuance of this opinion, Governor Haslam issued Executive Order 34, which established the Governor’s Commission for Judicial Appointments.9 The structure and operation of the Governor’s Commission for Judicial Appointments were similar to the pre-existing JNC, but with several modifications. Specifically, and most importantly for this discussion, Executive Order 34 called for all Commission terms to expire on November 5, 2014, unless the Executive Order was amended to provide otherwise.10 In the November 4, 2014, general election, the voters of Tennessee overwhelmingly approved Amendment 2.11 But no legislative mechanism for filling of trial court vacancies had replaced the JNC in the intervening two years. As a result, relying upon General Cooper’s earlier opinion and his own belief in the validity of a merit selection process for judicial candidates, Governor Haslam issued Executive Order 41, which created a new body, the Governor’s Council for Judicial Appointments (“the Governor’s Council”). This body was authorized to interview and recommend nominees to the Governor for filling of both trial and appellate vacancies.12 The Governor’s Council is comprised of eleven individuals, with three members coming from each of Tennessee’s grand divisions and two at-large members (no more than four members hailing from any single grand division). Eight of the 11 members must be attorneys.13 Members of the Judicial Council are appointed by Governor Haslam and serve staggered, two-year terms. The Governor selects the Chair on an annual basis. The Judicial Council has a 60-day window from receiving notice of a vacancy from the Governor’s office in which to submit a panel of three names to the Governor
June 2016
COVER STORY
By: Cheryl G. Rice Egerton, McAfee, Armistead & Davis, P.C.
for his consideration. Vacancies are announced, posted on the website of the Administrative Office of the Courts and otherwise advertised, and each applicant completes a public written application. Board of Professional Responsibility and judicial conduct records are provided to the Council. A public hearing and interview is conducted. The Council may deliberate privately, but its members vote by public, though anonymous, ballots. The three candidates receiving the highest number of votes are submitted to the Governor. No candidate may be included in the panel presented to the governor unless he/she receives a minimum of six favorable votes from the Council. Additional background investigation on the three nominees is then conducted after which the governor appoints his selection. The governor may still request a second panel from the Council and, once that second panel is nominated, Governor Haslam is free to choose one individual from either panel.14 Since the passage of Amendment 2, Tennessee’s appellate court appointees are subject to legislative confirmation.15 Pursuant to the Tennessee Constitution, as amended in 2014, the Legislature has 60 days from the date of the Governor’s appointment (if the appointment is made during the annual legislative session) or from the start of the next annual legislative session (if the appointment occurs when the General Assembly is not in session) in which to confirm or reject the appointee.16 The confirmation process was determined during the 2016 legislative session. Confirmation now requires approval by both houses of the General Assembly.17 The TBI performs a financial and criminal background investigation of the appointee to be provided to the chair of all standing committees to which the Governor must provide notice of the appointment.18 A hearing by the standing committee may be held, after which the General Assembly will meet in joint session for the purpose of voting to confirm or reject the Governor’s appointee. Confirmation occurs with the appointee’s receipt of a majority vote of each house in favor of appointment. Rejection occurs upon a majority vote of each house against appointment, or if one house rejects the appointee by at least two-thirds of its members (regardless of the vote of the other house.) Successive votes may be taken during
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the 60-day window if an appointee is neither confirmed nor rejected conclusively.19 Failure of the General Assembly to reject an appointee within the allotted time results in confirmation of the appointee by default.20 The 2016 bill establishing the appellate confirmation process also created a Trial Court Vacancy Commission to address all vacancies in state trial courts of record occurring on or after February 1, 2016 (“the Trial Commission”).21 The Trial Commission is tasked with screening applications to fill these vacancies and sending three nominees to the governor, who can appoint one or ask for a new slate of three nominees.22 Like the Governor’s Council, the Trial Commission is composed 11 members. Filled by legislative, rather than gubernatorial, appointments, five members of the Trial Commission are appointed by the Speaker of the House, five by the Speaker of the Senate and the chair is appointed jointly by the two speakers.23 Commissioners, who need meet no geographic requirement beyond Tennessee citizenship,24 will ultimately serve staggered, six-year terms.25 Seven members of the Trial Commission, including the Chair, must be attorneys.26 The Trial Commission operates akin to the Governor’s Council, with similar timing requirements, applicants submit written applications which are made public, public hearings and interviews are conducted, BPR and judicial conduct records are reviewed, and Commissioners deliberate privately but vote publicly by anonymous written ballot. Candidates must receive votes from at least a majority of the Trial Commission members present and voting to be submitted to the Governor.27 Between the two screening bodies, Knoxville is represented by three members of the local bar: Beverly Nelms is serving on the Trial Commission;28 Culver Schmid and this author serve on the Judicial Commission.29 While Tennessee’s future governors will be free to choose their own manner of appointing Supreme Court justices and judges of the intermediate appellate courts, merit selection remains a part of the process for filling both trial and appellate vacancies in Tennessee’s courts for the foreseeable future.
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Tenn. Code Ann. § 17-4-101, et seq. (2014). Id. 3 See Sheila Burke, Legislature leaves open question about judges, Knoxville News Sentinel, May 1, 2013. 4 Tenn. Const. Art. VI, § 3 (Revised Nov. 4, 2014). 5 Tennessee Judicial Selection, Amendment 2 (2014), BALLOTPEDIA.ORG, http://ballotpedia.org/Tennessee_ Judicial_Selection,_Amendment_2_%282014%29 (last visited Dec. 18, 2014). 6 Attorney General Opinion 13-76. 7 Id. 8 Id. 9 Executive Order 34. 10 Id. 11 Tennessee Judicial Selection, Amendment 2 (2014), BALLOTPEDIA.ORG, http://ballotpedia.org/Tennessee_Judicial_Selection,_Ame ndment_2_%282014%29 (last visited Dec. 18, 2014). 12 Executive Order 41. 13 Presently two attorneys from Knoxville serve on the Governor’s Council. 14 Id. 15 Tenn. Const. Art. VI, § 3 (Revised Nov. 4, 2014). 16 Id. 17 T.C.A. §17-4-102. 18 Id. 19 Id. 20 T.C.A. §17-4-103. 21 T.C.A. §17-4-301(a). 22 T.C.A. §17-4-308. 23 T.C.A. §17-4-3-1(a). 24 T.C.A. §17-4-302. 25 After initial appointments, intended to create staggering of terms, full terms shall be six years. T.C.A. §17-4-301(b), §17-4-305. 26 Id. 27 T.C.A. §17-4-308. 28 See J.R. Lind, First batch of appointments to judicial vacancy commission named, Nashville Post, March 3, 2016. 29 See Governor’s Council for Judicial Appointments, http://www.tsc.state.tn.us/boards-commissions/boards-co mmissions/governors-council-judicial-appointments. 1 2
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WORD PLAY
barrister bullets
By: Peter D. Van de Vate Finkelstein, Kern, Steinberg & Cunningham •
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Plan now to attend the Barristers monthly meeting on Wednesday, June 8, at 5:00 p.m. at the Bistro at the Bijou. Everyone is welcome. The speaker will be Cornerstone of Recovery attorney Douglas Nanny addressing addiction issues prevalent in the bar. Get updates on the Barristers on Facebook at www.facebook.com/knoxvillebarristers. This year’s Barristers Professional Clothing Drive was a smashing success, thanks to innumerable generous donors and the many hardworking volunteers from the Hunger & Poverty Relief Committee who helped make the event possible. Literally truckloads of clothing were donated to the YWCA, the Connect Ministries Career Closet, and Knox Area Rescue Ministries. Thank you all for your support of this wonderful cause!
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The Law Week & School Outreach Committee would like to thank all of the volunteers who participated in the Junior Judges presentations over the past month. We appreciate you for making it a successful event.
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The Access to Justice Committee invites members to volunteer at the next Saturday Bar on June 4th. Contact Kathryn Ellis at kellis@laet.org or Daniel Ellis at dellis@ellisandellislaw.com for more information.
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The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. The Barristers Volunteer Breakfast Committee always need volunteers to serve food or sponsor. The cost is $150 for sponsoring, and we need 4-5 volunteers. If you are unable to fund the breakfast, the Barristers will subsidize the cost of the breakfast. Volunteers meet at 6:15 a.m. and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30 a.m. It’s a great way to serve the community. Sign up at http://www.knoxbar.org/Job-Placement/volunteer-breakfast-sign-up. For more information, please contact Committee Chairs Paul Wehmeier at pwehmeier@adhknox.com or Kati Goodner at kgoodner@lewisthomason.com.
“Inshallah” “Im yirtzeh Hashem” “Ohala” These words/phrases are interesting in that in the three languages, Arabic, Hebrew and Spanish mean pretty much the same thing. The Arabic Inshalah or in sha Allah or insha’ Allah is basically “God willing” or “if God wills.” It is used in many contexts, such as to say “I hope,” “If it is destined” or “not a chance,” among others things. The same is pretty much true for the Hebrew “im yirtzeh Hashem.” The Spanish Ohalá is a bit more interesting. If you recall my article on “blue bloods” you will recall that it came about after the Moors were expelled from Spain. If the veins in your hands could be seen through your lighter skin, you were probably not a Moor. That was considered an advantage as the Moors had fallen out of favor in Spanish society. Well, Ohalá became part of the Spanish language due to the influence of the Arabic language on the country’s tongue. The New Yorkers and New Jersey folks have a similar multi-definitional expression that is quite versatile: fuggetaboutit. It can be used to mean “I agree,” “I disagree,” “that’s great” or “go to hell,” among others. All a matter of context and inflection.
L E G A L LY W E I R D By: Latisha J. Stubblefield Pilot Travel Centers, LLC
In my last semester of high school, I managed to finagle a “free class period” where I was supposed to be working on student council matters. However, I usually spent this time hanging out with friends in empty classrooms and occasionally leaving school to grab lunch, etc. My lunch excursions were few and far between. Because, let’s be serious, I’m generally a rule-follower and getting caught was a real fear. Yet my sporadic outings have NOTHING on the literal joyride taken by Farragut High School Senior James Popovich and a couple of friends this past April. Popovich and unnamed friends left school mid-day and headed over to Sir Goony’s Family Fun Center in Farragut. They arrived before Sir Goony’s had opened for the day. Yet, the whole not being open yet was of no consequence to Popovich. He barreled his BMW across the grass, through the railing at Sir Goony’s, and onto the go-cart track where Popovich and friends proceeded to take a joyride around the go-cart track. Sir Goony’s owner, Johnnie Springfield, witnessed the whole ordeal. Springfield states that he walked out in front of Popovich’s car in an attempt to stop him from doing any more damage. However, Popovich purportedly left the car in gear and rolled slowly forward toward Springfield, bumping him. Popovich then switched his car into reverse and backed across the track and running over another section of railing before speeding out of the parking lot. Springfield, uninjured, managed to snap some photos of Popovich’s car on his way out, luckily snapping a picture of Popovich’s license plate and Farragut High School hang tag. Police were able to use the pictures and traced the car back to Popovich, who had (surprisingly) returned to school following his joyride that afternoon. Popovich admitted to leaving school and driving on the track. He was promptly arrested and now faces a felony charge of aggravated assault, as well as a misdemeanor charge for vandalism. I’m assuming the felony charge probably sucked the “joy” right out of that joyride.
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June 2016
WELL READ By: Lee T. Nutini Judicial Law Clerk, United States District Court
SPRING CLEANING FOR THE MIND Typically this space is reserved for reviews and explorations of books or articles that stoke the legal mind as we try to improve our businesses and our personal lives. But I wanted to take an opportunity between books to put some of the ideas that we read back into the context of our world. So, consider this column something of a Well Read’s Spring Cleaning for the Mind. Although I try to keep what I read as diverse as possible, as I continue to read I notice an expanding problem. The problem is this: we are confronted with a paradox of proverbs in what we read. This could be particularly problematic for those without a grip on reality. My hunch is that this is enormously problematic for millenials (my own generation, a.k.a. the “It is what it is” and “You do you” generation), who likely confront more characters per day than other readers. Back to the paradox. The way we often confront truths is in the form of aphorisms. When we reach for those aphorisms in a time of need, I think that many people find themselves grasping at air. When I seek advice from others, the world seems completely haywire when I compare all of the truisms or penny advice phrases. I often stop and think, “Hey, that’s the opposite of what so-and-so suggested yesterday.” Ironically, I had hit on an actual truth: that cheap advice was often contradicted by other cheap advice. And we all know this to be true. It isn't uncommon for your Instagram feed to contain photos of pithy quotes or proverbs urging you both to “carpe diem” and “relax and let life drift on by… .” What does the unmoored mind do with that conflicting information? Below are several examples of aphorisms, proverbs, or general pieces of advice we encounter every day. Next to them appears a separate, common, and contradictory (and equally pithy) answer:
So when you confront ideas, whether in the form of advice or a magazine column, think independently; make your own decisions. Realize that, the more you look, the more you’ll encounter the paradox of proverbs. It seems to me that being well read in today’s diverse media environment calls for this sort of levity and contextualization: don’t just nod in agreement at each passing suggestion of truth. Call it a spring cleaning for the mind; call it keeping one hand on the wheel of reality; or, just call it plain old-fashioned independent thinking. Because the best advice is sometimes that which you give yourself. And if you’re stricken with fear at the realization that much of the advice being passed around is worthless, you might also conclude that life is a total crapshoot. But do yourself a favor — at least shoot your own craps. And, if you’ve been paying attention, feel free not to.
“Knowledge is power!” …. But ….. “Ignorance is bliss.” “Bigger is better!” …. But ….. “Less is more.” “Absence makes the heart grow fonder.” …. But …. “Out of sight, out of mind.” “Failing to prepare is preparing to fail.” …. But …. “Cross that bridge when you come to it.” Personally, this is why I often find it completely useless when I ask people for advice. Their answers are all over the map; truisms conflict. I always leave the conversation feeling like I had wasted my time and that I remain confused about what the world wanted from me. But maybe that was the point—I was looking for a right answer. Or, I'll admit, I just wanted an answer that most people found right. And yet, it isn't far off to say that most of the advice that I receive is unhelpful. The truth of that statement is shocking, even today. For those desperate for a legal application, recall that as lawyers we build our reputations on the quality of the advice that we choose to give.
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OF LOCAL LORE AND LAWYERS By: Joe Jarret University of Tennessee, Department of Political Science
OF GUILT & GHOSTS Please allow me to preface this piece by alerting the reader to the fact that it’s not exactly local lore, but it is lawyer lore, and an interesting bit of lore to say the least. Recently, while traveling through West Virginia, my wife Mandy (also an attorney) and I came across a state historical marker a few miles west of the quaint town of Lewisburg. It read: "Interred in a nearby cemetery is Zona Heaster Shue. Her death in 1897 was presumed natural until her spirit appeared to her mother to describe how she was killed by her husband Edward. Autopsy on the exhumed body verified the apparition's account. Edward, found guilty of murder, was sentenced to the state prison. Only known case in which testimony from [a] ghost helped convict a murderer." Needless to say, such an outrageous piece of legal lore could not go uninvestigated. According to records maintained in the Greenbrier County Courthouse, Zona Heaster Shue had been a popular young girl in Greenbrier County. However, near the end of January 1897, the newly-wed Shue was found dead at the bottom of the stairs leading to the second floor of the log house she shared her new husband, Edward “Trout” Shue, a blacksmith. Zona’s body was discovered by a neighbor, a child of about 11 years, who did chores for her. As was the custom in that day, Zona's body was taken 14 miles across the valley to her childhood home on Little Sewell Mountain, and buried there three days later. Zona’s death was reported in the local newspaper, The Greenbrier Independent, which read that the physician who examined the body, one Dr. George W. Knapp, announced that Zona had "died of an everlasting faint" related to childbirth.1 Within a month of the burial, Zona’s mother, Mary Jane Heaster, began informing neighbors that Zona's spirit had appeared to her four nights in a row. The purpose of these visits, she asserted, was to accuse the blacksmith of her violent death - to "tell on him and to set the record straight about her dying.” This did not bode well for Trout, whose reputation in the community was less than stellar. In one report, Trout reportedly beat his first wife, Estie, so badly that a group of “local civic-minded gentlemen” dragged him out of bed one winter night and threw him through the ice and into the Greenbrier River. Armed with the ghostly visits from Zona, Mary Jane Heaster visited the Honorable John Alfred Preston, the prosecuting attorney for Greenbrier County. She apparently presented “enough troubling and convincing information” that a court order was issued for the exhumation of Zona’s corpse. Armed with the court order, Preston went to see Dr. Knapp, the physician who had originally examined Zola shortly after her death. Knapp admitted that because the husband had exhibited “such distress over anyone's touching Zona's body,” that his “examination had been cursory.” Furthermore, Trout Shue had already dressed his wife himself, before Knapp got there, in a high-necked gown, with a big scarf around the neck. Preston and Knapp together agreed that an autopsy was in order.2 Three physicians participated in the autopsy who “examined Zona's stomach for poison, and checked the other vital organs of the chest and abdomen.” Working around the head and neck, one of the doctors turned to Trout, who was permitted to attend, and said, "Well, Trout, we
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have found your wife's neck to have been broken." The Pocahontas Times reported that: "On the throat were the marks of fingers indicating that she had been choken [sic]; that the neck was dislocated between the first and second vertebrae. The ligaments were torn and ruptured. The windpipe had been crushed at a point in front of the neck."3 Subsequent to the autopsy, Trout Shue was charged with murder, and tried by a jury of his peers. According to the trail transcript the following ensued: After an elaborate argument of the evidence by Messrs. Gilmer and Preston for the State and Jas. P. D. Gardner, and Dr. Rucker for the accused, the case of the State vs. E. S. (“Trout”) Shue was given to the jury last Thursday afternoon, and the jury, after being out one hour and ten minutes, returned into Court with a verdict of murder in the first degree, as charged in the indictment, but recommending that the accused be punished by imprisonment, which means, under the law, that he be confined in the penitentiary for the term of his natural life. After the verdict was entered, a group of “local civic-minded gentlemen” again appeared, this time in an attempt to lynch Trout. Their immediate efforts failed; however, Trout passed away several days later from injuries suffered in the botched lynching.
1 Greenbrier Independent newspaper, July 1, 1897, reporting on the case of The State vs. E. S. Shue. 2 Deitz, Dennis J. The Greenbrier Ghost and Other Strange Stories. South Charleston: Mountain Memories Books, 1990, see also, Lyle, Katie Letcher. The Man Who Wanted Seven Wives: The Greenbrier Ghost and the Famous Murder Mystery of 1897. Charleston WV: Quarrier Press, 1984. 3 The Pocahontas Times newspaper, June 24, 1897, reporting on the case of The State vs. E. S. Shue.
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June 2016
SCHOOLED IN ETHICS By: Alex B. Long Associate Dean for Academic Affairs & Professor of Law University of Tennessee College of Law
ABA FORMAL OPINION 474: THE ETHICS OF REFERRAL FEES Hypo: Lawyer represents The Knoxville Kitchen, which is jointly owned by Alice and Bob. Alice was running a personal errand while driving a car owned by The Knoxville Kitchen when she was involved in an accident. Alice has sued the other driver, and the other driver has, in turn, sued Alice and the restaurant. Lawyer determines that Alice’s interests are adverse to the restaurant’s. Alice wants Lawyer to refer her to a personal injury trial lawyer. Lawyer will not assist the trial lawyer in the representation. Alice would like Lawyer to receive a referral fee. Lawyer refers Alice to another lawyer. The two lawyers orally agree that Lawyer will receive a referral fee and that Lawyer will accept joint responsibility for the matter. Lawyer orally informs Alice of the arrangement, including the amount of his reasonable referral fee. Can Lawyer receive a referral fee in this instance? Some lawyers believe that once they refer a client to another lawyer, their work is done and they are entitled to a referral fee. A recent formal ethics opinion from the ABA highlights how the ethical issues surrounding referral fees may be more complex than these lawyers believe. The above hypo is based on a series of hypos presented in ABA Formal Opinion 474 (April 21, 2016). The opinion lays out the general rule – also contained in Rule 1.5(e) of the Tennessee Rules of Professional Conduct – that a lawyer who refers a client to another lawyer may only receive a referral fee if the fee is in proportion to the services provided by the referring lawyer or if the referring lawyer assumes joint responsibility for the representation along with the other lawyer. Comment [7] to ABA Model Rule 1.5 explains that joint responsibility “entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.” As the formal opinion notes, by assuming joint responsibility for the representation, the referring lawyer has necessarily undertaken a representation of the client. This means that the normal conflict of interest rules that apply to any attorney apply with equal force to the referring attorney.1 In the above hypo, the interests of Alice conflict with those of the Knoxville Kitchen. Since Lawyer represents both clients, Lawyer has a conflict of interest under RPC 1.7(a). As such, both clients would need to consent to the conflict, in writing, in accordance with Rule 1.7(b). Unless Lawyer in the hypo obtains such consent, Lawyer is in violation of the conflict of interest rule. Lawyer may face another problem. In the hypo, Lawyer orally informed Alice about the referral arrangement with the other lawyer. However, under Rule 1.5(e), the client’s agreement to the arrangement must be confirmed in writing. Since this did not happen, Lawyer has violated Rule 1.5(e). This raises the additional concern that Lawyer’s violation may result in Lawyer not receiving any fee at all. A fee agreement that fails to comply with the rules of professional conduct may amount to an agreement in violation of public policy. In such cases, it is possible that a court would refuse to permit the attorney to recover any fee. See White v. McBride, 937 S.W.2d 796, 803 (Tenn.1996). In a similar case, the Tennessee Court of Appeals concluded that because a referring lawyer’s violation of Rule 1.5(e) was not “an ethical transgression of a most June 2016
flagrant sort,” the lawyer could still recover his referral fee. Coleman v Coleman, No. W2012–02183–COA–R3–CV, 2013 WL 5308013 (Tenn. Ct. App. Sep. 19, 2013). Not all courts have been so forgiving when a lawyer fails to obtain a client’s consent in writing. See Naughton v Pfaff, No. 2–15–0360, 2016 WL 1265502 (Ill. Ct. App. March 31, 2016) (holding that referring lawyer who failed to obtain client’s consent to a referral agreement in writing was prohibited from recovering his share of fees). Ultimately, ABA Formal Opinion 474 serves as a reminder that a referring attorney undertakes responsibilities with respect to the client being referred. As Comment [7] to RPC 1.5 notes, a lawyer should only refer a client to another lawyer whom the referring lawyer reasonably believes is competent. RPC 1.5(e) lists several other requirements on the part of the referring lawyer. Finally, as Formal Opinion 474 observes, a referring lawyer who assumes joint responsibility for the representation must always comply with standard conflict of interest rules. 1 A comment to Tennessee’s rule somewhat cryptically notes that joint responsibility “entails the obligations stated in RPC 5.1 for purposes of the matter involved.” Since RPC 5.1, which deals with the responsibilities of law firm partners and supervising attorneys, lists multiple obligations, the meaning of the comment is not entirely clear. But it seems safe to assume that the basic reasoning of the ABA’s formal opinion applies to the Tennessee RPC and that a referring lawyer who agrees to joint responsibility has undertaken a representation of the client.
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LONG WINDED By: Jason H. Long Lowe, Yeager & Brown
CELEBRATE Summer is finally here. Or at least I think it is. These days, with the wild fluctuations in weather, you never really can tell. Today it might be a comfortable 76 degrees, but next week it could be 32 degrees with hailstorms or the temperature may shoot up to a balmy 110 in the shade. Somebody needs to get Al Gore on this ASAP. In any event, when I think of summer, I think of festivals and celebrations. From Memorial Day, to the Fourth of July, to Labor Day, it seems like our summers are defined and measured by our celebrations. Of course, we here at the KBA just got done celebrating Law Day. Thanks to the Barristers and the Executive Director’s office for a wonderful celebration. Judy Cornett, as always, was an enlightening and entertaining speaker and I did regret that I wasn’t able to stay for the end of her program. My apologies, Judy. I think Law Day, along with our Supreme Court Dinner and Annual Meeting, is one of the finest traditions for lawyers in the state. If you are not a member of the legal profession, Law Day may seem like a relatively minor celebration. It is oddly specific to the practice of law and I doubt there are many without a J.D. who know or even care that the holiday exists. That’s the great thing about holidays, they can be created by anybody for just about any reason and you can choose to celebrate or not, depending on your availability and inclination. With that in mind, I went looking for some of the more creative holidays coming up in June that you may want to celebrate. You can start the month off with a bang celebrating National Go Barefoot Day on June 1. Many of us, to the chagrin of those in close proximity, celebrate this holiday in the south almost every day of the summer. It is a time to walk barefoot and feel the cool grass or warm pavement under our feet. Really, it’s one of the best things about living in Tennessee. However, the national holiday also has a serious side. It was actually started in 2004 after the tsunami disaster that devastated communities worldwide. An organization called Soles4Souls started the holiday to encourage people to donate money and shoes to underprivileged children around the world. A truly worthy and noble project. If you think about it, spend some time on June 1 walking around barefoot and then give so that others won’t have to. If you showed your philanthropic side at the beginning of the month, treat yourself by celebrating National Chocolate Ice Cream Day on June 7. Now, personally, I enjoy chocolate ice cream but it has never been my “go to” flavor. According to the national holiday website giving the background on this holiday, chocolate ice cream is the second most popular flavor in the world. (Vanilla is number one). Out of curiosity, I
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checked the accuracy of that statement. You would be surprised at the number of polls that have been conducted to rank ice cream flavors. Generally, chocolate does come in second, although mint chocolate chip is quickly closing the gap. Sadly, my preferred, strawberry, is well down the list. Cretins! Hot on the tail of the ice cream celebration, we can celebrate Donald Duck Day on June 9. The loveable curmudgeon duck was first introduced on June 9, 1934 in a cartoon titled The Wise Little Men. Interestingly, he did not meet up with Mickey until his second cartoon. He has appeared in more films than any other Disney character and I consider him part of the Great Triumvirate (Mickey, Minnie and Donald). I’ll never put Goofy ahead of Donald until someone can definitively tell me what kind of animal Goofy really is. June 18 is National Splurge Day. It is a holiday to kick back and do something for yourself. I can’t even begin to describe how ridiculous I think this holiday is. As I read about it, I thought to myself, have we achieved that level of avarice and self-indulgence that we need a holiday like this? I wanted to know more so I investigated its origins. National Splurge Day was created by Adrienne Sioux Koopersmith in 1994. Really? One person can just create a national holiday? Seems like we should have a stricter vetting process here. I looked up Ms. Koopersmith on the internet and apparently she has a blog titled “Koopersmithin’.” I’m not sure there is anything more I can add here. Finally, there is one holiday in June I can fully get behind: World Sauntering Day on June 19. This holiday was established back in 1979 by W.T. Rabe in response to the increasing popularity of jogging. Essentially, Mr. Rabe saw everyone around him running and decided he was going to take his time and smell the roses. What I like about the holiday, other than the fact that it is essentially a celebration of “not jogging,” is that he used the verb “sauntering” rather than something like “strolling.” Sauntering conjures up images of a certain kind of stroll, a swagger almost. To me, this is a holiday to celebrate “not jogging” with an attitude, and I am all for that. Anyway, I am sure there are several other holidays everyone will celebrate in June and throughout the rest of the summer season. If you are desperate enough, apparently you can just throw a party in your backyard and declare it Yellow Pants Day or something equally random . . . just ask Ms. Koopersmith . . . or better yet, post it on her blog.
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LAWYER KIDS By: Lisa J. Hall Hodges, Doughty and Carson, PLLC
SCHOOL’S OUT FOR SUMMER; LAWYER KIDS HIT HOLIDAY ROAD For kids, summer vacation is all about recreation, relaxation, and making memories. For Charlie, Heather Anderson’s son, one summer vacation was all about expanding his world-view through a unique channel: potties! A couple of years ago, the Andersons took Charlie to Puerto Rico, the U.S. Virgin Islands and British Virgin Islands. He was actively potty training at the time, so he took advantage of all of the opportunities available to him: at national monuments, beaches, and off boats. Also a few years ago, Will Carver and his family went on a Disney Cruise. They stopped in Jamaica for a day and reserved a combo excursion, which included ziplining and tubing. Will’s children were 6 and 8 at the time. The kids, Will, his wife, mother-in-law and sister-in-law set out down a forested river with a local guide in tow. The waters were calm, and the river was shaded. The first fifteen minutes of the trip were relaxing and uneventful, except for Will’s son’s constant efforts to float up ahead of everyone else. They rounded a corner, and the distinct smell of marijuana filled the air. The children did not know what it was, and Will was content to ignore it. The scent continued to permeate the air and grew harder to ignore, at which point they realized it was emanating from a young local man standing naked on the shore consummating his relationship with a young – naked – local woman. Will’s children floated about five feet from the action. The startled man abruptly stopped what he was doing, and he and his lady friend turned around to provide Will’s family with an unobstructed full frontal view. Will and his family were speechless, but the local couple seemed quite happy, mon! When Angelia Nystrom’s son Trace was four, she and Hugh decided that Trace was old enough for a family trip to Europe. They planned a week-long “Adventure by Disney” to London and Paris, with a few days in London on the front end and a few days in Paris on the back. Their first leg of the trip (and the pre-Disney adventure) took them to the Renaissance Chancery Court (now, the Rosewood) hotel in Central London, a beautiful hotel with classic architecture and a staff that looked like they came straight out of a British novel. They decided they would visit some attractions that were not a part of the Disney tour, including a tour of
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the HMS Belfast and the “London at War Experience.” Being an only child who spends most of his time around adults, Trace has always been like a 40-year-old in a child’s body, and they thought nothing of taking him to these tourist attractions. They did an audio tour of the Belfast, which included radio communications and information about the service of the sailors on the ships in WWII. They followed that with the “London at War Experience,” which was a tour of a bomb shelter from WWII that was in an unused subway tunnel. The experience began by going down into the tunnel on a very old elevator. It was dark, and they could hear the air raid sirens. It smelled like kerosene, and the old lights even flickered during the tour. It was set up with the bunks from a shelter, and it contained many artifacts from WWII, including a gas mask for a child that was made to look like Mickey Mouse. (Apparently the Mickey Mouse design was to take some of the fear out of a possible chemical attack). During their entire time there (which was rather lengthy, as Hugh and Angelia read everything to Trace), they could hear the sounds of German planes flying overhead and bombs dropping. It really made them feel like we were back in 1940s London during the Blitz. Perhaps, too much. When they returned to the hotel, the doorman, Edward, a lifelong Londoner who was in his 70s and was a child during the Blitz, greeted them. He asked, “Young Master Nystrom, how was your day?” Trace’s reply: “Well, it would have been great, but the Germans are bombing London. I’m about ready to get in a plane and bomb them back.” Edward just laughed, as Hugh and Angelia tried to explain that this had actually happened many years ago, that the Germans are our friends, and that he was, in fact, safe. The lesson that day: sometimes a 4-year-old really is just a 4-year-old. Finally, though not a “summer” story, Judge Steven Sword recalls a time when he was in the DA’s office and his daughters wore T-shirts that said “Prosecutie.” When Lucy was in elementary school, she had an assignment to draw a picture of what her dad did for a living. She drew a picture of a man behind bars. The teacher seemed to have a lot of sympathy for her after that.
DICTA
June 2016
OPEN SERVICE By:
Maha Ayesh and Troy S. Weston
THE SECOND QUARTER The Open Service Project started off with a delicious feast for the ages at the downtown YWCA on Thursday, March 24th. Twenty-five volunteers, consisting of lawyers, judges, law students, and a KBA Executive Director came together to provide a Mexican fiesta for the residents of the YWCA. There was great food, exciting decorations (special thanks to William Mason and his enterprising granddaughter, Olivia, who brought cards and goodie bags for the residents—what an amazing touch!), and the spirit of service. Now, let’s pivot to the second quarter! On Saturday, June 18, the KBA Open Service Committee will be teaming up with the Muslim Community of Knoxville’s “Hungry Hearts” initiative to provide lunches and toiletries to some of Knoxville’s neediest individuals. Volunteers will gather at Annoor Mosque in the Fort Sanders neighborhood from 10:00 a.m. until noon to prepare brown bag lunches and toiletry packages. Interested volunteers may then drive as a group to hand out the lunches and packages under the bridge near the Salvation Army. Hungry Hearts is a monthly event that is organized and executed by the Youth Program of the Muslim Community of Knoxville. For the second year, KBA is partnering with Hungry Hearts during Ramadan, when most of the Muslim volunteers will be fasting. Ramadan is a month in the Islamic lunar year, during which Muslims around the world fast from all food and drink during the day. Ramadan this year occurs between June 6 and July 6. Fasting helps remind people to focus on their spiritual selves, while also remembering the plights of serious hunger and thirst and realizing what a luxury and blessing it is to be able to break one’s fast at the end of the day. Through the Open Service project, last year, several KBA members and their families visited Knoxville’s main mosque for the first time and met some of the young members of Knoxville’s Muslim community who were choosing to devote a Saturday morning in the summer to serving the needs of the homeless while they themselves were fasting. We also had the opportunity to interact one-on-one with some of Knoxville’s neediest individuals. Due to the success of last year’s partnership, we wanted to give our KBA members the opportunity to volunteer again this year! Space for volunteers is limited. If you would like to participate, please contact Maha Ayesh at maha@jmortonlaw.com.
KBA members Troy Weston, Maha Ayesh, and Elizabeth Carroll, and the Carroll family, participating in Hungry Hearts, July 2015.
June 2016
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GUILTY PLEASURES By: Angelia Nystrom UT Institute of Agriculture
MEMORIAL DAY TRADITIONS Memorial Day. The “Unofficial Start of Summer.” And a day guilty pleasures can suddenly become new traditions. Hugh and I never really had any Memorial Day traditions. Sure, there had been years where we went to the random cook-out, saw a movie, or even cleaned out the garage. But Memorial Day took on a new twist a few years ago. Several years ago, we were home on Memorial Day, with no plans. Coincidentally, several of our neighbors with kids about Trace’s age had no plans either. We decided to create our own fun – a “progressive party.” Our fun started down the street, with a cereal bar and pancake buffet for the kids, and mimosas and Bloody Mary’s for the grown-ups. For several hours (and until it got hot), the kids played a massive game of “hide-and-go-seek” through the neighborhood. When the weather warmed up and the kids wore out, we took the party to another house so that the kids could swim. Each family brought a hodge-podge of snacks, but the hit of the party was the key lime pie. While I am certain that the key lime pie was good by itself, the kids got the bright idea to use Doritos as spoons and treat the pie as a dip. A new sweet/sour/salty treat was born. After several hours, the water-logged kids headed to our house for grilled hot dogs. Knowing that I was cooking for a friendly crowd, I decided to add a twist to the hot dogs – bacon. I wrapped the hot dogs with thinly-sliced bacon and threw them on the grill. If you have never tried this, I highly recommend it. The hot dogs were perfect and really didn’t need chili or condiments. And calories and fat don’t count on a holiday. As the years have passed, our tradition has morphed a little, but the spirit of the party has not changed. Now, we spend the Saturday of Memorial Day weekend with the Toqua Districit of the Boy Scouts placing flags on the graves at the Tennessee Veteran’s Cemetery on Lyons View Pike. Our progressive party may or may not happen on Memorial Day, depending on what is going on. Instead of just a few families with children, our party now includes the entire neighborhood. Hot dogs are a staple for the party, and we always include key lime pie and Doritos (although we now have a kid’s pie and an adult’s pie – too much double-dipping by the kids with the Doritos). The grown-ups look forward to getting together with our neighbors every year, and the kids – who go in a million directions during the school year – get the opportunity to “reconnect” as summer begins. The weekend is a great reminder of those we have lost defending our freedom and a blessed celebration of our freedom. While I love our traditions, I love hearing about my friends’ traditions as well. Nick McCall’s traditions have also morphed throughout the years. Says Nick, “Until five years ago, Memorial Day was spent visiting my late mother in Franklin, Tennessee. For the last five years, though, Memorial Day Monday – or at least, several hours of it – have been spent at the East Tennessee Veterans Memorial located in World Fair’s Park near the L&N STEM Academy. Beginning shortly after dawn, a group of volunteers read each of the names – all 6,222 of them, from 35 counties – slowly and with dignity. This small gesture seems a very appropriate way to commemorate the reason why the holiday exists. I hope to participate again this year.” Mary Ann Russell’s celebration has also changed through the years. “As ‘empty-nesters,’ for years we went to the beach with three other
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couples on Memorial Day; and, while we haven’t gone to the beach in a while, we try and do something, whether it’s go to the mountains for the weekend, or just get together at one of our houses. We’re continuing the tradition this year, with those that can going to the home of one of the couples in North Carolina,” says Mary Ann. LeAnn Mynatt is changing it up this year. Says LeAnn, “Usually, I'm headed to the beach with my family. Memorial Day in South Carolina on the beach is perfect: not too hot, not too crowded (think 4th of July). But this year, I'm headed to Grand Teton and Yellowstone national parks with two of my cousins. We're celebrating a cousin's birthday, and we wanted to do something different. I've never been, and I can't wait.” Memorial Day is the “Unofficial Start of Summer.” It is also the official day to remember those who fought, defending our nation. As you enter this Memorial Day weekend, I hope you take the opportunity to pay respects to our war dead by enjoying the freedoms they fought to preserve.
DICTA
June 2016
ASK MCLAWYER
Question Presented: Hey McLawyer, My local rules where I am practicing limit the number of written interrogatories that I am able to serve on my opponent to thirty (30) “including all discrete subparts.” What constitutes a “discrete subpart?” Discussion and Analysis: The Federal Rules of Civil Procedure have a similar restriction, stating, “Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts.” Several counties’ local rules also have similar restrictions. However, the rules do not expressly define what constitutes a “discrete subpart.” Black’s Law Dictionary defines “discrete” as “Individual; separate; distinct.” Advisory comments to Rule 33 of the Federal Rules of Civil Procedure offer some guidance on this issue.
“common-theme” standard. Allen v. Mill-Tel, Inc., 283 F.R.D. 631, 637 (D. Kan. 2012); Mezu v. Morgan State Univ., 269 F.R.D. 565, 572 (D. Md. 2010). “Although the Federal Rule does not define what constitutes a ‘discrete subpart,’ an interrogatory containing subparts directed at eliciting details concerning a common theme should be considered a single question while an interrogatory with subparts inquiring into discrete areas is counted as more than one for purposes of numerical limitations.” 23 Am. Jur. 2d Depositions and Discovery § 120. The Federal District Court for the Western District of Tennessee has utilized a similar standard, stating, “A Nevada district court has interpreted Rule 33 to mean that if an interrogatory's subparts are ‘logically or factually subsumed within and are necessarily related to’ the primary interrogatory, then the subparts are not separate interrogatories.” Medtronic Sofamor Danek, Inc. v. Michelson, No. 01-2373-GV, 2002 WL 33003691, at *5 (W.D. Tenn. Jan. 30, 2002) (quoting Ginn v. Gemini, Inc., 137 F.R.D. 320. 322 (D.Nev.1991)). Ultimately in deciding what constitutes discrete subparts, it is probably most helpful to consider the language of Kendall v. GES Exposition Servs., Inc., 174 F.R.D. 684, 685-86 (D. Nev. 1997), a case also cited positively by a Federal District Court in Tennessee:
Parties cannot evade this presumptive limitation through the device of joining as “subparts” questions that seek information about discrete separate subjects. However, a question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication. Advisory Committee Note, Fed. R. Civ. P. 33. Using this comment, determining whether the subpart involves a “discrete separate subject” is the primary consideration. Some courts refer to this consideration as the
Probably the best test of whether subsequent questions, within a single interrogatory, are subsumed and related, is to examine whether the first question is primary and subsequent questions are secondary to the primary question. Or, can the subsequent question stand alone? Is it independent of the first question? Genuine subparts should not be counted as separate interrogatories. However, discrete or separate questions should be counted as separate interrogatories, notwithstanding they are joined by a conjunctive word and may be related.
“Ask McLawyer” is dedicated to answering questions on procedure, evidence and trial tactics in a variety of venues and subject matter. Should you have a question for McLawyer, please address the question to Ask McLawyer, c/o Marsha Wilson, KBA, 505 Main Street, Suite 50, Knoxville, TN 37902 or mwilson@knoxbar.org. Your question will then be submitted to McLawyer for potential response in this column. McLawyer is an anonymous neutral counsel dedicated to answering questions of procedure from members of the Knoxville Bar Association.
June 2016
DICTA
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AROUND THE COMMUNITY By: Special Agent Cynthia Federal Bureau of Investigation
M. Deitle, JD, LLM*
SLAVERY STILL EXISTS: TRAFFICKING AND THE EXPLOITATION OF HUMAN BEINGS FOR PROFIT Despite the prohibition against slavery, codified in the Thirteenth Amendment to the Constitution, the exploitation of human beings, also known as human trafficking, continues to thrive in the United States and across the globe. The term “human trafficking” is commonly used to describe the criminal act of compelling a person’s labor, services, or commercial sex acts through force, fraud, or coercion (18 USC, Ch.77). The Department of Justice, Civil Rights Division, along with their partners in the United States Attorneys’ Offices and law enforcement agencies including but not limited to the Federal Bureau of Investigation and the Department of Homeland Security, are tasked with enforcing these laws. Federal criminal statutes addressing trafficking include prohibitions against peonage - an arrangement under which a debtor was forced to work for a creditor until the debt was paid - and against recruiting, transporting, holding, returning, or selling a person into a condition of slavery. Additional statutes prohibit interfering with a person’s legal documents in a trafficking situation. The element of force, fraud, or coercion that defines most human trafficking crimes is absent where a person younger than 18 years of age is induced by another to perform a sex act in which money or a thing of value is exchanged for said act. The trafficker in this situation also faces a lengthier term of incarceration. The International Labor Organization (ILO) estimates that there were approximately 21 million victims of human trafficking globally in 2012. Of those individuals, 68% are victims of forced labor and 22% are victims of forced sexual exploitation. There are hundreds of thousands of identified adult and minor victims of trafficking in the United States alone. Worldwide profits from human trafficking have reached $150 billion according to a report published by the ILO in 2014, making this the most lucrative crime after drug and weapons trafficking. Recognizing that the process by which governments and non-profit organizations gather statistics related to human trafficking varies considerably, the ILO has begun a five-year project to engage stakeholders to agree on a process to synchronize data collection. One misconception about human trafficking is the belief that the victim must have been smuggled into the United States or moved across state lines. While undocumented immigrants can be particularly vulnerable to coercive employment situations because of their fear of government authorities, traffickers have become adept at preying upon guest workers who are in the United States legally, and especially upon children. Traffickers often know their victims and sometimes target members in their own communities. They may have ties to other organized crime or criminal organizations and may be involved in trafficking narcotics as well. Individuals who engage in human trafficking are typically quite skilled in morphing into the person the victim believes he or she needs whether that is a boyfriend or girlfriend, parental figure, or an entrepreneur who promises a job with a high salary. While the term “human trafficking” refers to all industries in which an individual is compelled to work, the leading labor industry for human trafficking victims is prostitution or the commercial sex trade. Sadly, the average age of entry into the commercial sex industry is between 12 and 14 years old. Sex trafficking can happen anywhere, but in East Tennessee, law enforcement officers determined that traffickers most often will post photographs of victims on certain internet websites to advertise their availability to engage in a commercial sex act which will then be arranged to take place at a local hotel. Trafficking victims have
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also been located and identified working in massage parlors or spas. Many of these victims who are recovered are women who are in their late teens or early twenties who were born and raised in East Tennessee. Most of them are Caucasian and have substance abuse or addiction issues which have never been adequately addressed. Typically, these individuals do not self identify as victims because they may sympathize with their trafficker, may fear law enforcement because of their criminal histories, and may lack any feeling of self value or self worth. To effectively combat this crime problem, law enforcement agencies in East Tennessee have established a Human Trafficking Working Group to conduct joint investigations and share intelligence on known or suspected traffickers and identified victims. This working group also partners with non-governmental organizations and social service agencies to ensure that the immediate and long-term needs of the victims are adequately met. Frequently, when victims are recovered, they require medical attention, a safe place to live, food, clothing, and trauma focused counseling. They often have weak ties to family members and lack a sufficient support system to help them rebuild their lives. Victim Advocates in the Federal Bureau of Investigation, the Knoxville Police Department, and other local, state and federal law enforcement agencies serve as the conduit between the victim and the law enforcement officers conducting the investigation. If the Victim Advocates can meet the need of the victims, they are more likely to cooperate with investigators against their traffickers, and they are less likely to return to a life in which they are seen as vulnerable to a potential trafficker. Law enforcement agencies rely on the public to report any suspicious activity or situation which appears to indicate that human trafficking or slavery may be occurring. If you see such activity, please call the Tennessee Human Trafficking Resource Center Hotline at 1-855-55-TNHTH or 1-855-558-4684.
*The views expressed in this article are of the author’s alone and are not those of the Federal Bureau of Investigation.
DICTA
June 2016
BENCH AND BAR IN THE NEWS OFFICE SPACE AVAILABLE: 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.
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NEW LOCAL RULE Please note that Howard Hogan, the Clerk & Master of Knox County Chancery Court, has provided proposed revisions to the Local Rules of Practice for Knox County Chancery Court. To review the proposed changes, please go to the News Item on the home page of the KBA website at www.knoxbar.org. The proposed changes are scheduled to become effective July 1, 2016. CORRECTION TO MAY DICTA The “Runnin’ from the Law” article which appeared in the Lawyer Hobbies column in the May DICTA highlighted a number of Knoxville lawyers who run as a hobby. Cody Farmer was identified as a TVA attorney. Cody is an attorney who works for TVA but he does not work for the Office of the General Counsel nor does he represent TVA as an attorney. 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. AFFILIATED ORGANIZATION The Smoky Mountain Paralegal Association will hold its next monthly meeting on Thursday, June 9, 2016, at 12:00 p.m. in the U.S. Attorney's Office. Robert C. McConkey, III of the U. S. Attorney’s Office will be presenting a “Primmer on the Legal Issues Surrounding Whistleblowing.” Our July 14th program will feature Judge Gregory S. McMillan of Knox County Fourth Circuit Court who will be speaking on the topic “Update on Fourth Circuit Court Rules, Policies and Procedures.” 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.
June 2016
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A perfect office space available with signage on Peters Road. The office has just been renovated and ready for new occupants. Space offers room for two private offices and reception area and other area for a work station. The location is visible from Kingston Pike and would make a great office for an accountant, insurance agent, attorney or mortgage broker, engineering firm or anyone who would like high visibility. Offers a carport for your parking along with a paved parking lot. Carport also has a storage closet. Rent: $900.00 per month. Contact Karen Emmert at 356-5049. Office Space for Lease: 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 2,000 sq ft. Present floor plan accommodates four offices plus a conference room and a reception area. Would consider dividing space. One Level. Offices on either side occupied by long-term law firms. Two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.
W E LCOM E NEW MEMBERS THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS:
John D. Agee Ridenour & Ridenour Jenae A. Anderson Burton & McKinnish, PLLC George M. Davis Bunstine, Watson & Becker Charles E. Fayton, Jr. Andrew N. Firkins Barbara Catherine Freels U.S. Department of Interior Paul T. Grandchamp Grandchamp Legal Services, LLC Cory T. Johnson Dungan, Meares & Webb Michael P. O’Neal Ann E. Sartwell Wimberly Lawson Wright Daves & Jones, PLLC Tiffany B. Sherrill Moore, Ingram, Johnson & Steele, LLP Alan L. Spear 834 Briarstone Lane John Stanford Young, III Bell, Young & Moore, PLLC Law Student Members: Brittany Headrick Steffen R. Pelletier Rachel S. Wallace
Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records: Kyle A. Baisley BPR # 027080 Long, Ragsdale & Waters, P.C. 1111 N. Northshore Dr. Ste S-700 Knoxville, TN 37919 Ph. (865) 584-4040 FAX: (865) 584-6084 kbaisley@lrwlaw.com
Taylor D. Forrester BPR # 027228 Long, Ragsdale & Waters, P.C. 1111 N. Northshore Dr. Ste S-700 Knoxville, TN 37919 Ph. (865) 584-4040 FAX: (865) 584-6084 tforrester@lrwlaw.com
William Jed Bassett BPR # 033032 Logan-Thompson, P.C. P.O. Box 191 Cleveland, TN 37364 Ph. (423) 716-6261 FAX: (423) 472-0211 jbassett@loganthompsonlaw.com
John R. Foust BPR # 028502 Law Office of John R. Foust 212 S. Peters Rd., Ste 107 Knoxville, TN 37923 Ph. (865) 203-4041 FAX: (865) 281-1034 rfoust@johnrfoustlaw.com
Dawn Elaine Bowie BPR # 033113 Just Bowie Law, P.C. P.O. Box 776 Seymour, TN 37865 Ph. (865) 223-7361 dawn@justbowielaw.com
Matthew W. Graves BPR # 023275 Apex Bank 430 Montbrook Lane Knoxville, TN 37919Ph. (877) 226-5361 239 FAX: (865) 531-4975 matthew.graves@apexbank.com
Susan L. Dominick BPR # 018364 CASA of East Tennessee P.O. Box 10752 Knoxville, TN 37939 Ph. (865) 329-3399 susan@casaofeasttn.org
DICTA
Sarah D. Jarrard Robertson Overbey 900 South Gay St., Ste. 800 Knoxville, TN 37902 Ph. (865) 679-9076 sjarrard@robertsonoverbey.com
J. Cort Sikes BPR # 024703 Wykoff & Sikes, PLLC P.O. Box 31167 Knoxville, TN 37930 Ph. (865) 320-9444 FAX: (877) 288-7152 cort@wykoffandsikes.com Edward L. Summers BPR # 000628 Haynes Meek & Summers, PLLC 5401 Kingston Pike, Ste 130 Knoxville, TN 37919 Ph. (865) 546-8706 FAX: (865) 546-8731 els@knoxcounselors.com Daniel F. Wilkins BPR # 025753 Frantz, McConnell & Seymour, LLP P.O. Box 39 Knoxville, TN 37901 Ph. (865) 546-9321 FAX: (865) 637-5249 dwilkins@fmsllp.com Wayne D. Wykoff BPR # 015916 Wykoff & Sikes, PLLC P.O. Box 31167 Knoxville, TN 37930 Ph. (865) 320-9444 FAX: (877) 288-7152 wayne@wykoffandsikes.com
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Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System
PRO BONO PROJECT
By: Terry Woods Project Director
FAITH & JUSTICE ALLIANCE LEGAL ADVICE CLINIC On May 7, 2016, Legal Aid and the Faith & Justice Alliance sponsored the first Faith & Justice Legal Advice Clinic in the Knoxville area. The Faith & Justice Alliance was created by the Tennessee Access to Justice Commission as a strategy to deliver legal services to under-served populations at their houses of worship, since a statewide survey of low-income persons revealed that many needed legal help but were afraid to seek it out through traditional means. First Baptist Church of Knoxville hosted the inaugural Clinic, and we are actively recruiting other churches, synagogues, and mosques to participate. Locally, the Faith & Justice Alliance is coordinated by the KBA Access to Justice Committee, the UT College of Law, and LAET. Bill Coley and Ian Hennessey have been the heart and soul of the project since its inception. In addition to three LAET staff members, 23 lawyers and seven non-lawyers participated in the event, providing advice (and additional services, in many cases) to 47 clients. This was a great start to what should become a enduring program. Participating Lawyers
Participating Non-Lawyers
Richard D. Austin Tasha C. Blakney Wade M. Boswell E. Michael Brezina Brenda G. Brooks Amanda M. Busby Wynne duM. Caffey-Knight J. William Coley Stewart M. Crane Keith L. Edmiston Matthew J. Evans Donald J. Farinato Patricia C. Foster Maria V. Gillen Kati Sanford Goodner Ian Hennessey Rachel P. Hurt Reggie Keaton Wayne R. Kramer Lyndsey L. Lee Julie Anne Rice Keith D. Stewart Barton C. Williams David R. Yoder
Dan Andrews - 1st Baptist Church of Knoxville Connie Blair - 1st Baptist Church of Knoxville Tracy Chain – KBA Lawyer Referral Service Arthur Clayton - 1st Baptist Church of Knoxville Gary Nunley - 1st Baptist Church of Knoxville Myra Nunley - 1st Baptist Church of Knoxville Betty Vawter - 1st Baptist Church of Knoxville Garrett Ward - UT Law
Thank you to all of the other lawyers who offered their time in the service of others by accepting or consulting on new cases or participating in Saturday Bar, the OP Clinic, Detainer Court, mediation, or in any other way since publication of the last list in DICTA: Garry L. Chin Heather K. Craig Donald J. Farinato Scott B. Hahn James R. Hickman
R. Alexander Johnson Ben W. Koyl Ian McCabe Bryce W. McKenzie Anna C. Penland
N. David Roberts Charles S. Sexton Carlos A. Yunsan
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
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DICTA
June 2016
THE LAST WORD By:
Q: A:
Jack H. (Nick) McCall
You have asked me about the longevity of the law firm of Frantz, McConnell & Seymour.
ARTHUR SEYMOUR Frantz, McConnell & Seymour
First I thought I would give you a brief history of the firm. It traces its origins to 1892 when three local attorneys who would later be the founding members were practicing law or studying law in Knoxville, Tennessee in the same building. The first was Howard Cornick, who was practicing with his half-brother, Tully R. Cornick, Jr. The second was John H. Frantz, who was practicing law here in Knoxville also. The third, James B. Wright, was a law student under G.W. Winstead, attorney. All three had offices in the Deaderick Building here in Knoxville. In 1902, the firm of Cornick, Wright and Frantz was formed, composed of the above three mentioned attorneys. In 1903, my grandfather graduated from the University of Tennessee law department and along with Thomas G. McConnell, both of whom were working with the L&N law department joined the practice. In 1910, the firm became known as Cornick, Frantz and McConnell with offices in the East Tennessee Bank Building. Finally in 1920, upon the withdrawal of Howard Cornick from the partnership to move to Arizona, the firm name was changed to Frantz, McConnell & Seymour, the name it now bears. The original partners under that name were John H. Frantz, Thomas G. McConnell and Robert M. McConnell, and my grandfather, Charles M. Seymour. The interesting thing is that Thomas G. McConnell and Robert M. McConnell were nephews of John H. Frantz and my grandparents and the Frantzes were next door neighbors on Melrose Place here in Knoxville, so there were not only close professional associations, but family and neighborhood associations also. In its earlier years, and even until today, the firm has handled a number of major cases. The firm represented the Tennessee Copper Company in a case styled State of Georgia vs. Tennessee Copper Company, which was a direct action filed in the United States Supreme Court by the State of Georgia against the State of Tennessee and the two major copper companies operating in the Polk County, Tennessee. Justice Oliver Wendell Holmes rendered the initial Opinion in that case, which resulted in an injunction by the state of Georgia against the copper companies and remained on the Supreme Court’s docket for enforcement and alteration of the injunction until 1935. The firm also was active on behalf of the private power companies, in particular, Tennessee Power and Light in lawsuits against the Tennessee Valley Authority throughout the ’30s and ’40s. One of the cases decided in the U.S. Supreme Court was Tennessee Electric Power Co. et al. vs. Tennessee Valley Authority, et al. which Tennessee Valley Authority won. Although the firm has grown to 17 lawyers since the early days, it has never aspired really to be anything other than a Knoxville and East Tennessee law firm. During all of its years, it has maintained a very general practice, representing businesses, insurance companies and individuals. It has dedicated itself to providing excellent legal services for these businesses and individuals in almost all aspects of the law. Obviously, a number of partners have different emphases on their practice, but the founders certainly believed a good lawyer ought to be able to represent his clients in most areas of the law. When I came to work at Frantz, McConnell & Seymour in 1967 as a law clerk, the members in the firm included Robert M. McConnell, my father, Arthur G. Seymour, Fred Cagle and Bruce Foster. I was fortunate to learn what the practice of law really entailed from them. I continued work here until I left for the Army for two years and then returned in 1971, where I have practiced since. The law firm has always emphasized good, solid legal work for its clients, along with its Knoxville and East Tennessee ties. There is no major formula for longevity; however, you hire good lawyers, try to maintain collegiality and try to have fun practicing law. To that end, I think we have been successful and hopefully will continue to be so in the future.
“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. June 2016
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Prsrt Std U.S. POSTAGE
PAID KNOXVILLE, TN PERMIT NO. 652
P.O. Box 2027 Knoxville, TN 37901
Thank you to our sponsors!
Diamond Sponsor The Trust Company
On April 21 and 22, 2016, more than 280 folks participated in the 11th Anniversary Law Practice Today Expo. This year’s Expo included local and national speakers, panel discussions, and idea exchanges that provided education and networking to lawyers and law firm staff from large, midsize, and small firms. There were 17 CLE sessions, 35 sponsors, 24 judges, and Randy Boyd, Tennessee Commissioner of Economic and Community Development, was our featured speaker for our Judicial Roundtable Luncheon.
Platinum Sponsors Attorneys Insurance Mutual of the South, Inc. First Tennessee Bank Forensic Pursuit Lexis Nexis Prevail Sword & Shield Enterprise Security Gold Sponsor UrLocalAgent.com Wells Fargo Advisors Silver Sponsors Appalachia Business Comm. Corp. BB&T Black Oak Services Bradford Health Services Brown Professional Insurers Cornerstone of Recovery Creekside Technologies LLC DSi Knoxville Gabbyville Virtual Receptionist Knoxville Executive Suites LBMC LogicForce Consulting Mike Baker Insurance Consulting MSA Digital Pileum Corporation Pinnacle Financial Partners Powell Auction & Realty, LLC Privett Insurance Group Pugh CPAs Smarter Searches Snelling Professional Services Teleconnect Services Thomson Reuters TIS Insurance Services, Inc. UT Federal Credit Union WOW! Business Beverage & All Biz Reception Sponsors Ritchie, Dillard, Davies & Johnson, PC Assoc. of Legal Admin. – Knoxville Chapter