KBA Board of Governors
Melissa B. Carrasco
Joan M. Heminway
Ian P. Hennessey
William A. Mynatt, Jr.
T. Mitchell Panter
M. Samantha Parris
Courtney Epps Read
Vanessa Samano
Charles S.J. Sharrett
DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association.
All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Tasha Blakney (522-6522).
James T. Snodgrass
James R. Stovall
Alicia J. Teubert
Zachary R. Walden
Dicta is the official publication of the Knoxville Bar Association
Publications Committee
Executive Editor Cathy Shuck
Executive Editor Sarah Booher
Executive Editor Melissa B. Carrasco
Executive Editor Wade H. Boswell, II
Brandon Allen
Anita D’Souza
Elizabeth B. Ford
Jennifer Franklyn
Joseph G. Jarret
F. Regina Koho
Matthew R. Lyon
Summer McMillan
Angelia Morie Nystrom
Katheryn Murray Ogle
Laura Reagan
Ann C. Short
Eddy Smith
Grant Williamson
Managing Editor Tasha C. Blakney
KBA Executive Director
16 The State of Chevron: The Ruling in Loper and Its
Speaking Out Your Values
Practice Tips Updates to Blood Testing Affecting Driving Under the Influence Cases
Legal Update
Sixth Circuit Encourages Supreme Court to Take Up Limits on Coordinated Campaign Expenditures (Again) 19 Schooled in Ethics
2024 Year in Review: ABA Formal Ethics Opinions
Counsel
Expanding the Magic Words an Employee Must Say to Request an
Why It Matters
Prejudice, Partiality, or Favor
Is
Clinic: A New Beginning for Campbell County Residents
to the 21st Century Lawyer
Around the Bar
on You: KBA Wellness Conference 2024
In Limine: Profiling Future JDs
to Be a Lawyer
There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 865-522-6522 or send an email to membership@knoxbar.org.
The ADR Section plans regular CLE throughout the year. Save the date for the annual CLE program “Mediation: Practice & Ethics Update,” scheduled for December 17. If you have a CLE program topic or speaker suggestions, please contact the ADR Section Chairs Joe Jarret (566-5393) or Betsy Meadows (540-8777).
The Bankruptcy Section plans CLE programs and helps coordinate volunteers for the Pro Bono Debt Relief Clinics. The next Pro Bono Debt Relief Clinic will be held on November 9, and volunteer registration is available at www.knoxbar.org. Save the date for the annual CLE program “Bankruptcy Case Law Update 2024,” scheduled for December 20. If you have a CLE program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Greg Logue (215-1000), Kevin Newton (588-5111) or Shanna Fuller Veach (545-4284).
The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs David Headrick (363-9181) or Marcia Kilby (362-1391).
The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. If you have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (457-5640).
The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to inhouse and government attorneys. If you have a program topic or speaker suggestions, please contact the Employment Law Section Chairs Howard Jackson (546-1000) or Tim Roberto (691-2777).
The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (804-3741), Kendra Mansur (771-7192), or Jimmy Wright (637-3531).
The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. Save the date for the annual CLE program “TN Family Law Update 2024” on December 10. Plan to attend the KBA Family Law Section Christmas Social scheduled for December 13 from 5-7 p.m. at the Herston Law Group downtown. If you are interested in getting involved or have suggestions for CLE topics, contact Section Chairs Blair Kennedy (539-3515) or Laura Wyrick (297-5511).
The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you are interested in getting involved or have suggestions for CLE topics, contact Section Chairs Ron Mills (215-2050) or Mitchell Panter (545-4167).
The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you have suggestions for CLE topics, please contact Section Chairs Justin Pruitt (215-6440) or Mike Stanuszek (766-4170).
The New Lawyers Section is for attorneys within their first three years of practice, and any KBA member licensed since 2022 will automatically be opted-in to the section. If you like to get involved in planning section activities, please contact Section Chairs Dalton Howard (546-0500) or Mari Jasa (546-7770).
The Senior Section schedules a luncheon with a guest speaker every quarter. If you have suggestions for luncheon speakers, please contact Chair Wayne Kline at (292-2307) or Sam Rutherford (659-3833).
The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tim Grandchamp (392-5936), Brittany Dykes (214-7869) or Stan Young (209-8034).
By: Carlos A. Yunsan University of Tennessee College of Law
Where did the year go? My son still has an unopened Lego set from last Christmas, and yet we have now reached November. A month traditionally—and rightfully—filled with gratitude and Thanksgiving, this November is also a reminder of the personal right and responsibility that those of us (of voting age) share to steer the future of our country toward “a more perfect Union.”1 So I write this month both thankful for the promise of our nation and sobered by the never-ending task of contributing toward manifesting that reality— if not for myself, at least for my children and theirs: “E Pluribus Unum.”2
I proudly became a U.S. citizen on July 14, 2016. Retired U.S. District Judge Harry S. Mattice, Jr. presided over the naturalization ceremony, which was held at the U.S Courthouse in Chattanooga, Tennessee. Moments before we took the Oath of Allegiance,3 Judge Mattice spoke warmly and forcefully about the journey each of us had taken and the choice we made to become U.S. citizens. I remember, as if yesterday, receiving my U.S. flag lapel pin and pocket Constitution. Twenty-two years after arriving at Maryville College to learn English—years during which I got married, got my first “real” job, became a Triple Vol,4 and began practicing law—I, too, could call this country my own. I was now able to vote and help determine the laws and policies that govern the country. And vote I did for the first time on November 8, 2016!
Disconcertingly, over the last several years (some argue decades in the making), our country’s political rhetoric has moved away from matters of policy to matters of division and—increasingly—hate. It should go without saying that if we are to continue moving toward a more perfect Union, allowing hateful words to define our national discourse will not get us closer to that goal. And while this type of speech seems to have recently become the norm rather than the exception, what is most concerning to me is that many of us, while initially outraged by this unbecoming paradigm shift, have now become so desensitized to it that we have either accepted it as inevitable or even adopted it for ourselves.
The problem with hateful speech is, of course, not only that it creates enmity within communities but it also often translates into action. Hate crimes in our country have been trending up for the last decade or so. In fact, they have reached an all-time high since the FBI began collecting relevant data in 1991.5 In my view, all this “hate talk” tears at the fabric of who we are as a nation far more than any foreign war, tax policy, or pandemic. In other words, I consider it one of our most pressing and now pervasive domestic problems.
As citizens, we have the awesome responsibility of supporting and defending the Constitution against all enemies, foreign and domestic. That responsibility to support the Constitution is also part of the oath
taken by every attorney licensed in this state.6 As lawyers, we are wellequipped to discharge this duty in ways that many fellow citizens are not. Moreover, many members of our bar serve in positions of leadership in our community (i.e., others are paying attention to our actions or inaction). Ergo, our duty is heightened. But what can we concretely do?
I ask you to consider a simple and straightforward remedy: Speak out for the values you cherish as a citizen and as a lawyer. I’m not talking about political candidates or parties but about your values, your principles, your judgment of what is important in life—as a citizen of this great nation and as a human being. And I’m most certainly not talking about infringing upon speech protected by the First Amendment. (In any case, speech protected from governmental curtailment is not necessarily free of consequence in the marketplace of ideas.) But if we find this new normal of hate talk incompatible with our values, we don’t have to sit around and do nothing. We can openly and forcefully express our penchant for respectful rhetoric, we can model how to disagree constructively, we can seek understanding without letting go of our deeply-held beliefs, we can even mobilize and bring people together to espouse these values. Didn’t we learn a lot of this in law school?
I am proud that our bar association is known across the state and beyond for its collegiality and the support it offers to its members regardless of background. As in any other setting, there is still plenty of work to do, but the KBA’s leadership, programs, and, ultimately, its members routinely go the extra mile to live out the promise of “Out of many, one.” And for that, I am deeply grateful.
1 U.S. Const. pmbl.
2 Latin for “Out of many, one” and traditional motto of the United States of America. Smithsonian Libraries and Archives, E Pluribus Unum. from A gazetteer of the United States of America, The Smithsonian Institution, https://www.si.edu/object/epluribus-unum-gazetteer-united-states-america%3Asilgoi_68301. The motto was first suggested on July 4, 1776, the day the country’s Declaration of Independence was signed. Id.
3 Not to be confused with the Pledge of Allegiance, the Oath of Allegiance requires naturalized citizens to “support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic.” Naturalization Oath of Allegiance to the United States of America, U.S. Citizenship and Immigration Services, https://www.uscis.gov/citizenship/learn-about-citizenship/thenaturalization-interview-and-test/naturalization-oath-of-allegiance-to-the-unitedstates-of-america.
4 That’s what they call you when you get your bachelor’s, master’s, and law degrees from the University of Tennessee at Knoxville.
5 Sara Chernikoff, One year later: Anti-Jewish and anti-Muslim hate incidents spike since Oct. 7 attacks, USA Today (Oct. 7, 2024, 7:01 PM), https://www. usatoday.com/story/graphics/2024/10/07/hate-crimes-grow-in-us-since-oct-7attacks/75501456007/.
6 See Tenn. Sup. Ct. R. 6 (“I, ___________, do solemnly swear or affirm that I will support the Constitution of the United States and the Constitution of the State of Tennessee.”).
By: John Willis Fox Farley Willis & Burnette
Chancellor Daniel Forrester, currently serving the people of Anderson County, brings a wealth of personal and professional experience to the bench. Born and raised in Campbell County, his journey reflects a strong work ethic, dedication to community, and a deep commitment to justice.
Chancellor Forrester’s roots are firmly planted in Campbell County, where he graduated from Campbell County High School. He entered the workforce at the age of fourteen, taking on various jobs that are familiar to many who grew up in small-town East Tennessee. From mowing lawns in his neighborhood to bagging groceries and flipping burgers at McDonald’s, Forrester experienced the value of hard work early on. He even worked as a dishwasher at Grady’s Restaurant, a job that resonates with locals of a certain age who fondly remember the establishment (Grady’s was the best date place in Knoxville, right?).
After high school, Chancellor Forrester attended East Tennessee State University. Initially, he focused his studies on biology. However, a chance decision to take a criminology class dramatically altered the course of his future. The class, taught by a former criminal defense attorney, captivated him with its real-world application of the law. Inspired by the professor’s passion for the subject, Forrester switched his major to criminal justice and set his sights on law school.
and he also became a certified Rule 31 mediator. Over the past six years, he conducted over 100 mediations, helping parties resolve their disputes without the need for trial.
Through his experience, Chancellor Forrester developed a deep appreciation for Chancery Court. He recognized the critical role the court plays in addressing sensitive family matters, such as custody disputes and termination of parental rights. The impact of a chancellor’s decisions on the lives of individuals, particularly children, inspired him to seek a position on the bench.
For law school, he ventured south to Florida Coastal School of Law in Jacksonville. While the proximity to the beach may have played a role in his decision, Forrester jokingly admits that the allure of the coast was fleeting—he only visited the beach three times during his three-year tenure. His focus, as it turned out, was more on his legal studies and returning to East Tennessee to family and the mountains he loved.
After graduating, Chancellor Forrester began his legal career at the Ridenour & Ridenour law firm in Clinton. He then moved to Fox & Farley, now known as Fox Farley Willis & Burnette (where he worked alongside yours truly!). Eventually, he took the entrepreneurial leap and opened his own practice.
Chancellor Forrester’s legal practice was community-oriented, encompassing a wide range of matters, including divorce, custody disputes, juvenile justice, parental termination, and adoption. His work in criminal defense and estate law further broadened his scope of practice,
When an opening for Chancellor arose in Anderson County, where Forrester had spent his entire career, he decided to pursue it. Initially, the seat was filled through the Trial Court Vacancy Commission and the Governor’s appointment, and although Chancellor Forrester was one of three finalists, he was not selected. However, his determination did not waver. He launched a successful campaign for position in the 2024 election and was sworn in on August 30, 2024.
Chancellor Forrester has quickly settled into his role on the bench. As a former attorney, he has valuable insights for those who appear before him. His first tip? “Be prepared and be on time. You should know your file from front to back and be ready when your case is called.” He also encourages attorneys to work together whenever possible. “I understand that lawyers aren’t going to agree on everything, or even many things. That is the nature of an adversarial system, and it’s why I have a job. But that doesn’t mean everything needs to be a battle. Coordinate on setting hearing and trial dates. Be respectful of each other and do your best to work out discovery and scheduling conflicts first before bringing them before the Court.”
While Chancellor Forrester is dedicated to his work on the bench, he values his time away from it just as much. He enjoys playing golf and spending time with his wife and two children. When he needs to unwind, he retreats to the mountains of East Tennessee with his family, where he enjoys camping, fishing, and exploring the outdoors.
As he continues his tenure, Chancellor Forrester looks forward to serving Anderson County with fairness, integrity, and a commitment to making a positive impact on the lives of those who come before his court.
By: Mitch Eisenberg Assistant District Attorney DUI Team Lead, Knox County
Although October would have been the perfect month to talk about blood testing in DUI cases (insert Dracula voice here – “I want to test your blood!”), it is still important to address recent changes in the blood testing landscape even if it is November. Chemical testing of a suspect’s blood can make or break a case, either by exonerating a suspect or providing overwhelming evidence of impairment. Recent legislative changes expanded the authority for those seeking blood tests and attempted to clarify aspects of medical provider testing and aspects of medical treatment results. 1 This article highlights some of these changes and how they may help the practitioner, law enforcement officer, or medical provider obtain and/or test blood in DUI cases.
One recent change expands the reach of all state magistrates, granting them the authority to issues search warrants when at least one element of the alleged crime on which the search warrant is based was committed within the jurisdiction of the magistrate. 2 Previously, an officer seeking a search warrant for a suspect located in a jurisdiction other than where the officer is assigned would have to find a local magistrate where the suspect was located in order to obtain a valid search warrant. Now, if at least one element of the crime occurs in the magistrate’s jurisdiction, officers can seek a search warrant with a magistrate that they are more likely to be familiar with, instead of having to track down the appropriate authority in an unfamiliar jurisdiction.
Additionally, another change specifically authorizes any law enforcement officer to execute a search warrant for medical records, a test to determine the alcohol or drug content of a person’s blood, or both, anywhere in Tennessee – regardless of their home jurisdiction.3 Hopefully, these changes will limit the delay attributed to tracking down a local magistrate and/or a local law enforcement officer to facilitate seeking a search warrant in an unfamiliar jurisdiction.
Another change attempts to formalize the process and legal protections afforded hospitals and qualified practitioners who draw a blood sample pursuant to a search warrant or other court order.4 This change directs the person drawing the blood to do so “as soon as practicable” without jeopardizing the operator’s life. Importantly, it specifically removes the requirement for “any additional consent” and allows the use of “all reasonable force” to obtain the sample.
This reference to additional consent is likely due in part to the fact that in some medical treatment settings, practitioners are trained to seek verbal consent before drawing blood samples or conducting blood testing. This change in the law specifically directs that “additional consent” is not required by law when blood is drawn pursuant to a search warrant or
court order.
Additionally, this change also specifically details that practitioners are protected as “acting in good faith” when they draw a sample pursuant to a search warrant or court order if they draw the sample “as soon as practicable.” Interestingly, the change to this section of the code states twice that the blood samples should be drawn “as soon as practicable” but then clarifies that any delay in the drawing of the sample “does not affect the admissibility into evidence” of the results. It is likely that these changes in guidance to the qualified practitioners drawing the blood will speed up blood draws in the hospital setting.
Lastly, a change to Tenn. Code Ann.. § 5510-406(g) requires medical treatment facilities to record and memorialize any testing of blood samples in the patient’s medical records when the patient’s blood is tested in the normal course of medical treatment.5 Moreover, the treating facility must provide those records upon service of a search warrant, subpoena, or court order.6 Hopefully, this change in the law will prompt treatment facilities to properly record results of blood tests. Those results can prove especially valuable in situations where no law enforcement blood samples are obtained or when there are considerable time delays in obtaining law enforcement samples since medical treatment samples are typically drawn soon after admission to the medical treatment facility.
A change to the law also formalizes that treating facilities must provide any residual blood to law enforcement upon service of a search warrant or court order.7 Since most medical treatment facilities destroy residual blood samples within 24 to 48 hours after they are collected, it will be interesting to see if this change to the law prompts changes to hospital blood sample retention policies. Overall, these changes directing the medical treatment facilities to record and provide test results and provide residual blood samples could provide evidence that may otherwise be unavailable should a sample not be obtained directly from the suspect.
The changes highlighted above significantly amend the process for obtaining and using chemical blood testing results in DUI cases, making the process more efficient and effective. These newly amended laws are worth reading in their entirety in conjunction with the rest of the DUI statutes to more fully understand the complex nature of DUI offenses and how blood samples are sought and tested in the State of Tennessee.
1 See TN LEGIS 892 (2024), 2024 Tennessee Laws Pub. Ch. 892 (H.B. 2386). Enacted May 1, 2024.
2 Tenn. Code Ann. § 40-1-106.
3 TN LEGIS 892 amending T.C.A. Title 40, Chapter 6, Part 1, supra note 1, at 1.
4 Tenn. Code Ann. § 55-10-406(e).
5 Tenn. Code Ann. § 55-10-406(g).
6 Id.
7 Id.
By: Regina Koho Tennessee Valley Authority Office of the General Counsel
On September 5, 2024, the Sixth Circuit issued a 103-page en banc opinion on a topic that is pertinent to things occurring this month—the Federal Election Campaign Act’s (FECA) “restrict[ions on] political parties . . . spending money on campaign advertising with input from the party’s candidate for office.”1 Traditionally, “the Supreme Court has recognized . . . that coordinated expenditures . . . ‘have virtually the same value to the candidate as a contribution’ and pose the same ‘dangers of abuse.’”2 The issue before the Sixth Circuit was whether limits on this sort of spending comport with the First Amendment.
The majority opinion is relatively straightforward. It found that a previous Supreme Court decision, Federal Election Commission v. Colorado Republican Federal Campaign Committee (Colorado II),3 which has not been explicitly overruled and found such limits on coordinated spending constitutional, governed the case. But what is interesting about the opinion is not the majority’s core holding but the stark divide among the judges about the proper method for evaluating First Amendment claims in this context and the strong message from several judges that this matter warrants the Supreme Court’s reexamination.
Congress enacted FECA “to regulate fundraising and spending in federal political campaigns,”4 and its “canonical regulation is the base contribution limit, which limits the amount an individual may donate directly to a candidate.”5 It “imposes similar restrictions on political parties.”6 The purpose of this limit is to “check[] actual and apparent ‘quid pro quo’ corruption” in elections.7
The Supreme Court has a long history of reviewing campaignfinance limits under the First Amendment,8 and it has traditionally applied the “tiers-of-scrutiny” analysis, as well as an “expenditure” versus “contribution” distinction, in doing so.9 Thus, “[w]hen the government tries to limit how much someone may spend on election-related speech [an “expenditure”], strict scrutiny applies,”10 but when the limitation is “how much money someone may give to another [a “contribution”], a form of intermediate scrutiny applies.”11
“A pair of decisions arising from Colorado refined this approach with respect to [FECA’s] spending limits on political parties.”12 The first, Colorado Republican Federal Campaign Committee v. Federal Election Commission (Colorado I),13 held that limits on a political party’s “independent” expenditures—“those spent without input from the candidate”—did not pass constitutional muster. The Court concluded that this was “core” political speech, and the government had not established that its restrictions were “necessary to combat a substantial danger of corruption.”14
In the second decision, Colorado II, 15 the Court addressed a facial challenge to FECA’s limits on political party expenditures “made with input from the candidate the party supports.”16 In this context, the Court only applied the “scrutiny appropriate for a contribution limit,” asking whether it was “‘closely drawn’ to match . . . the ‘sufficiently important’ government interest in combating political corruption.”17 In the Court’s view, coordinated party expenditures permit “donations” to a party to be “passed through to [the candidate] for spending on virtually identical items as his own campaign funds.”18 Because the Court saw the potential
for “sidestep[ping] . . . contribution limits,” Colorado II held that “a party’s coordinated expenditures, unlike expenditures truly independent, may be restricted to minimize circumvention of contribution limits.”19
The Challenge in the Sixth Circuit
The plaintiffs in this case, “the national senatorial and congressional committees of the Republican Party, Senator J.D. Vance, and former Representative Steve Chabot,”20 challenged FECA’s limits on political parties’ coordinated expenditures under the First Amendment. Broadly, the plaintiffs argued that these limits prohibited them from unifying political messages with candidates and, from the candidates’ perspective, prohibited them from “accept[ing] the party’s funds and . . . giv[ing] input about how they should be used in [their] political campaigns.”21
Although acknowledging the existence of Colorado II, the plaintiffs contended that it was no longer binding “because later decisions by the Supreme Court have undermined its reasoning.”22 In pertinent part,23 they claimed that more recent campaign finance opinions “strengthened the ‘closely drawn’ test, emphasizing that this ‘rigorous’ test demands ‘narrow[ ] tailor[ing].’”24 In contrast, Colorado II “made no mention of narrow tailoring . . . , saying it would not invalidate the coordinated spending limits based on ‘unskillful tailoring.’”25
The Sixth Circuit’s En Banc26 Decision
Judge Sutton, an influential conservative voice on the court, wrote for the majority and acknowledged the “tension [that] has emerged between the reasoning of Colorado II and the reasoning of later decisions of the Court.”27 But he nonetheless concluded that “[a]ny shifts in [the Court’s] reasoning do not shift the precedential terrain from our vantage point” because the decision had never been explicitly overruled.28 Thus, Colorado II controlled until the Supreme Court said otherwise.
Three judges joined in the majority but also filed lengthy concurrences,29 engaging in a robust debate that highlighted a jurisprudential divide on the Sixth Circuit, one that will likely reappear in some form if (or when) this case reaches the Supreme Court.30
Judge Thapar and Judge Bush, both Trump appointees, agreed that Colorado II’s constitutional analysis was inconsistent with the Court’s recent decisions31 and suggested that the Court’s Second Amendment analytical framework—which first asks whether the regulated conduct is covered by an amendment’s text and, if so, requires the government to “justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition”32—should be applicable to the First Amendment.33 Judge Thapar specifically noted the “growing chorus of voices casting doubt on a tiers-of-scrutiny approach to constitutional law,”34 opining that “[l]ooking to history rather than policy . . . ensures that we do only our jobs, so the people remain free to do theirs.”35
Similarly, Judge Bush believed that this framework would ensure that a “court does not implement its own policy judgments about” the applicability of a particular amendment.36 All in all, these concurrences communicated, in not so subtle terms, that “the case is a strong candidate for certiorari.”37
Judge Stranch, an Obama appointee, observed that Colorado II’s existence “should have made this an easy case, one we could unanimously resolve in a handful of pages” and chastised her colleagues for instead “produc[ing] handfuls of opinions encouraging the Supreme Court to
continued on page 11
By: Ruth T. Ellis Ellis Law Firm, PLLC
Prior to 2007, the Knoxville Bar Association honored its deceased members in two ways. First, there was a resolution for each attorney or judge, carefully crafted upon their passing, which was carefully considered by the KBA Board of Governors and then filed with the Knox County Chancery Court. The KBA also read each attorney’s or judge’s name and the KBA annual meeting, then paused for a moment of silence. It was a good thing, but something more was needed.
During 2007, the KBA Memorials and Resolutions Committee (with some of the same committee members from 2007 still being on the committee today), determined to create a way that each deceased attorney’s and judge’s lives could really be seen and each could be remembered for who they truly were. Research was done to discover what other bar associations across the state and in other states were doing. A concept was created. A question was asked. What if the KBA asked an attorney or judge who knew the deceased well to speak, not just providing basic biographical data about the deceased, but sharing stories about the deceased’s lives? The stories could be about memorable moments, specific attributes, adventures, events, or whatever portrayed who the deceased really was. The stories could be humorous, meaningful, sad, or surprising. As the stories would often be told by a close friend, they would be told with feeling, honoring the deceased with a portrayal akin to a good biographical book or good biographical movie.
The venue was also carefully considered. It was decided that, with permission of the Court, the Tennessee Supreme Court courtroom, with its history and importance to the community of East Tennessee, would be the perfect venue. An annual fall service was planned for the Friday before Thanksgiving. (On occasion through the years, we have found that a spring service is also needed in years where we’ve lost a larger number of our colleagues.) The focus, by far, of the program would be the lives of the deceased, but to begin and end the program, a Tennessee Supreme
Court Justice, a member of the clergy, and the current KBA President would be asked to participate. The families of the deceased would be invited to attend and be given special seating in the courtroom. Each deceased attorney or judge would be given equal time during the program in order to be remembered for those aspects of their lives that made them unique.
After careful planning and preparation throughout 2007, the KBA Memorials and Resolutions Committee held its first Memorial service in 2008. It has successfully served its purpose each year with a full house of attorneys and families attending (families often attending en masse and sometimes traveling long distances).
The service has had an unexpected benefit: it has given the non-legal community insight into the value, hard work, and service of those in the legal profession. I recall one family member attendee remarking to me, “I never knew that lawyers were such good people.” Even though as lawyers and judges the focus of our work is often what the judgment of a court will be, this service is a time when judgment is set aside and camaraderie, friendship, and individual attributes are the focus. The attorneys and judges who attend the program leave feeling revived and more connected with the true purpose of practicing law.
This is one of those years where we find ourselves in need of two services. Sadly, we have lost a significant number of our valued members and friends since our gathering last fall. This year, on November 22, we will gather to honor and remember 13 such cherished souls. As always, the service will be at the Tennessee Supreme Court and will begin at 3 pm. An informal reception will follow. Please also mark your calendar now for the spring service, which will be May 2, 2025, at 3:00 pm in the Tennessee Supreme Court courtroom.
I hope you all plan to join us this month in this important annual tradition of our Knoxville Bar.
By: Brad Fraser Leitner Williams Dooley Napolitan, PLLC
Stefanie Bowen
Leitner
Williams Dooley Napolitan, PLLC
Literature is rife with stories about a “deal with the devil.” The classic Faustian bargain involves trading your soul for a variety of reasons. In pop culture, we have The Charlie Daniels Band tune, The Devil Went Down to Georgia.1 The Devil appears and challenges Johnny to a fiddle showdown, wagering “a fiddle of gold against [his] soul.”
Reviews are mixed as to which fiddle performance was best. We honestly thought the Devil’s fiddle work was much better, but Johnny’s addition of some old-timey lyrics must have pushed him over the top. But while Johnny conceded “it might be a sin,” the terms of the deal, other than a fiddle or a soul, were never really set out.
In 21st century online commerce, we have no such issue. Nearly every website you use has the terms and conditions provided. And the devil is truly in the details. It is now easier than ever to propose terms of a contract to an end-user. These contracts presented by hyperlink come in two general forms—the clickwrap agreement or the browsewrap agreement.2
Whether the terms and conditions bind the user depends on traditional elements of contract law. An offer is required and there must, of course, be a manifest of assent to be bound by the terms. Whether there is adequate notice of the terms, so that a user may assent to them, likely depends on the form of the agreement presented.
A browsewrap agreement does not require the user to manifest assent to the contract; it instead provides notice to the user of the agreement through a hyperlink posted somewhere on the website.3 In other words, most browsewrap agreements state that your use of the website or product in itself manifests your agreement to the terms. You might need to navigate to another site to review the terms, but there is no requirement that you do so in order to proceed. Other browsewrap agreements fit the language in footers on webpages, sometimes conspicuously, other times inconspicuously. The true sign of a browsewrap agreement is that you do not have to affirmatively click to agree to the terms. And since browsewrap agreements do not require any affirmative action by the user, the determination of the validity of a browsewrap agreement will depend on whether the user had actual or constructive notice of the website’s terms and conditions.4 If there is no evidence of actual knowledge, validity will turn on whether the website provides the user with reasonable notice.5 As you might imagine, cases are fact-intensive and proof is often difficult to develop.
In contrast, a clickwrap agreement is an agreement to which a website user must manifest assent to the terms of the agreement by clicking on an icon.6 Unlike their browsewrap counterparts, a clickwrap agreement does require a user to affirmatively check a box, click a button, or otherwise agree to a set of terms in order to use the website, app, or product.
Federal courts across the country have consistently upheld clickwrap agreements.7 And, interestingly, some clickwrap agreements are deemed valid even when the party needed to click on a link to view the terms of the agreement.8 This means that a contract might be valid even when a party affirmatively clicks “accept” but does not advance to read the terms or scroll through the full terms offered. Browse at your own risk.
The United States District Court for the Eastern District of Tennessee referenced browsewrap agreements for the first time in January 2024. In Roberts v. Boyd Sports, LLC, the defendant argued that the presentation of a ticket containing a hyperlink to proposed terms and conditions to enter a sporting event was much like a browsewrap agreement.9 Absent evidence actual knowledge of the terms, the validity of the agreement would depend on whether the ticket provided reasonable notice. The Court agreed with the defendant that the plaintiffs had constructive notice of the terms contained on the ticket and manifested assent by entering the event, though it did not comment on the comparison to a browsewrap agreement.10 The opinion suggests, at the very least, an understanding of the evolution of contractual agreements and the way notice may manifest.
♫ ‘Cause Hell’s broke loose online now and the website deals the cards. ♫
1 Charlie Daniels Band, The Devil Went Down to Georgia, Epic (1979). Special thanks to JSA for the musical inspiration for this article.
2 Anderson v. Amazon.com, Inc., 490 F. Supp. 3d 1265, 1274 (M.D. Tenn. 2020).
3 Id. citing In re Zappos.com, Inc., Customer Data Sec. Breach Litig., 893 F. Supp. 2d 1058, 1063 (D. Nev. 2012) (finding no enforceable contract and the Terms of Use to be browsewrap when the hyperlink was inconspicuously listed at the bottom of the webpage).
4 Id.
5 Id.
6 See Traton News, LLC v. Traton Corp., 528 F. App’x 525, 526 n.1 (6th Cir. 2013).
7 See, e.g., Id.; Hancock v. Am. Tel. & Tel. Co., 701 F.3d 1248, 1256 (10th Cir. 2012) (citing Smallwood v. NCsoft Corp., 730 F. Supp. 2d 1213, 1226 (D. Haw. 2010)) (“Clickwrap agreements are increasingly common and ‘have routinely been upheld.’”); Nazaruk v. eBay Inc., No. 2:06CV242DAK, 2006 WL 2666429, *3-4 (D. Utah 2006).
8 See Noye v. Johnson & Johnson, No. 1:15-CV-2382, 2017 WL 5135191, at *8 (M.D. Pa. Nov. 6, 2017) (holding that a clickwrap agreement was not procedurally unconscionable under Michigan law even though the party had to click on a link to view the arbitration agreement); Magid Glove & Mfg. Safety Co., LLC v. Tower Int’l, Inc., No. 10 C 7377, 2011 WL 1118883, at *3 (N.D. Ill. Mar. 25, 2011) (holding that a clickwrap agreement that included a link to its terms and conditions was not procedurally unconscionable, because “a reasonable user could easily navigate to the Terms and Conditions through only two mouse clicks”); One Beacon Ins. Co. v. Crowley Marine Servs., Inc., No. H-08-2059, 2010 WL 1463451, at *5–6 (S.D. Tex. Apr. 12, 2010) (finding that a clickwrap agreement was not unconscionable where it provided address of website and only three mouse clicks were required to access terms and conditions from home page).
9 Roberts v. Boyd Sports, LLC, No. 3:23-cv-137, 2024 U.S. Dist. LEXIS 11805 at *2 (E.D. Tenn. Jan. 23, 2024).
10 Id.
rework campaign finance, First Amendment, and constitutional law in new and audacious ways.”38 Taking on Judge Thapar’s and Judge Bush’s concurrences in particular,39 she pointed out that the “proposal to make history and tradition dispositive is itself a policy judgment,” one that did “not score well on [Judge Thapar’s] own rubric”40 because the policy judgments did not end with a decision on the applicable analytical framework. Further necessary policy-laden inquiries would include: “What is the right level of generality at which to interpret the historical record?” “How long after ratification may subsequent practice illuminate original public meaning?” “Which individual rights should be frozen in 1791, which reimagined in 1868?”41 Moreover, Judge Stranch noted that “the Supreme Court’s latest exploration of history and tradition” in the Second Amendment context “generated seven conflicting writings,” which had “hurled lower courts into chaos” as a result.42
Because her colleagues’ approach “[r]ais[ed] more questions than answers,” Judge Stranch cautioned “restraint” before subjecting First Amendment doctrine to the “exercise in judicial and academic experimentation” utilized in the Second Amendment arena.43
Conclusion
Although this case’s journey to the Sixth Circuit is just a stop on the way to the Supreme Court,44 the separate opinions resulting from this en banc appeal give us a pretty good preview of the fractures that will likely emerge in the justices’ own analyses. It will be interesting to see whether a majority of the justices will further revamp constitutional jurisprudence in the First Amendment arena.
1 Nat’l Republican Senatorial Comm. v. Fed. Election Comm’n, No. 24-3051, 2024 WL 4052976, at *1 (6th Cir. Sept. 5, 2024).
2 Id. at *39 (Stranch, J., concurring) (quoting Buckley v. Valeo, 424 U.S. 1, 46 & n.53 (1976)).
3 533 U.S. 431, 121 S.Ct. 2351, 150 L.Ed.2d 461 (2001).
4 Nat’l Republican Senatorial Comm., 2024 WL 4052976, at *2.
5 Id. at *26 (Stranch, J., concurring).
6 Id. at *2 (citations omitted).
7 Id.
8 See id. (“Since 1976, the Supreme Court has grappled with the relationship between the imperatives of the Act and the imperatives of the First Amendment.”).
9 See, e.g., id. at *37 (Stranch, J., concurring) (chastising other judges’ analyses as “collaps[ing] the distinction between expenditures and contributions that the Supreme Court has repeatedly upheld”).
10 Strict scrutiny, the most stringent form of constitutional analysis, requires the government to demonstrate that “a law furthers a compelling interest and is narrowly tailored to achieve that interest.” Norton Outdoor Advert., Inc. v. Vill. of St. Bernard, Ohio, 99 F.4th 840, 851 (6th Cir. 2024) (internal quotation marks omitted).
11 Nat’l Republican Senatorial Comm., 2024 WL 4052976, at *8 (Thapar, J., concurring) (citations omitted). Intermediate scrutiny typically only requires that “(1) the government’s stated objective . . . be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective.” Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 693 (6th Cir. 2016) (noting that “the vocabulary of intermediate scrutiny varies across courts”).
12 Nat’l Republican Senatorial Comm., 2024 WL 4052976, at *3.
13 518 U.S. 604, 616 (1996).
14 Id. at 616–18 (opinion of Breyer, J.).
15 533 U.S. at 456 (2001).
16 Nat’l Republican Senatorial Comm., 2024 WL 4052976, at *3 (emphasis added).
17 Colorado II, 533 U.S. at 456 (quoting Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 387–88 (2000)).
18 Id. at 460.
19 Id. at 465.
20 Nat’l Republican Senatorial Comm., 2024 WL 4052976, at *1.
21 Id. at *1–2.
22 Id. at *3.
23 The plaintiffs provided several other reasons why Colorado II was no longer legally or factually relevant, see id. at *3–5, but, in the interest of brevity, this article focuses on the calls from several judges to change the legal framework for analyzing First Amendment claims.
24 Id. at *4 (quoting McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 197, 199 (2014)).
25 Id. (quoting Colorado II, 533 U.S. at 463 n.26).
26 En banc review is statutorily required for these types of constitutional questions. See 52 U.S.C. § 30110 (“The district court immediately shall certify all questions of constitutionality of this Act to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.”).
27 Nat’l Republican Senatorial Comm., 2024 WL 4052976, at *4.
28 Id. (“Even when the Supreme Court embraces a new line of reasoning in a given
area and even when that reasoning allegedly undercuts the foundation of a decision, it remains the Court’s job, not ours, to overrule it.”).
29 Judge Bush concurred “dubitante,” which “indicates that [he] doubted a legal point but was unwilling to state that it was wrong.” Jason J. Czarnezki, The Dubitante Opinion, 39 Akron L. Rev. 1, 2 (2006) (internal quotation marks omitted).
30 Judge Bloomekatz also separately concurred in the judgment and parts of Judge Stranch’s concurrence, Nat’l Republican Senatorial Comm., 2024 WL 4052976, at *44 (Bloomekatz, J., concurring), and Judge Readler filed a lone dissent in which he reached the merits of the plaintiffs’ claims and found the limits at issue unconstitutional, see id. at *44–58 (Readler, J., dissenting).
31 Id. at *14 (Bush, J., concurring dubitante).
32 Id. at *7 (Thapar, J., concurring) (internal quotation marks and citations omitted).
33 Id. (“History should . . . guide our First Amendment jurisprudence. Specifically, courts should engage in the two-step inquiry that our Second Amendment jurisprudence uses.”).
34 Id. at *8 (Thapar, J., concurring).
35 Id. at *9 (Thapar, J., concurring).
36 Id. at *17 (Bush, J., concurring dubitante) (internal quotation marks omitted).
37 Id. at *26 (Bush, J., concurring dubitante). Both Judge Thapar and Judge Bush also provided thorough substantive analyses on whether the limits at issue were constitutional. See id. at *12 (Thapar, J., concurring) (finding that, even under intermediate scrutiny “the FEC’s anti-circumvention case is rather paltry” because it proffered “a lone supporting example” to justify its restriction); id. at *17 (Bush, J., concurring dubitante) (finding, based on “history and tradition,” that the FEC failed to meet its burden to justify the limits at issue because “when the people ratified the . . . First Amendment . . . , there was no exception relevantly similar to the restriction at issue here”). Judge Stranch responded with a similarly thorough retort. See, e.g., id. at *35 (Stranch, J., concurring) (finding that evidence presented by the FEC demonstrated that “[c]oordinated expenditures offer ‘special value’ to a candidate, leaving it ‘beyond serious doubt’ that ‘contribution limits would be eroded’ and the ‘inducement to circumvent’ the base limit ‘enhanced’ were party coordinated spending declared ‘wide open’” (quoting Colorado II, 533 U.S. at 457, 464-65)).
38 Id. at *26 (Stranch, J., concurring).
39 Id. at *39 (Stranch, J., concurring) (“Judge Thapar and Judge Bush explain in their separate but related writings that were they vested with Supreme Court authority, they would jettison a century of well-trodden First Amendment law and replace it with the nascent ‘history and tradition’ test installed two terms ago . . . .”).
40 Id. at *40 (Stranch, J., concurring) (emphasis added) (internal quotation marks omitted).
41 Id. at *41 (Stranch, J., concurring) (internal quotation marks and citations omitted).
42 Id. at *40 (Stranch, J., concurring) (internal quotation marks omitted).
43 Id. at *43 (Stranch, J., concurring).
44 Id. at *26 (Stranch, J., concurring) (noting that “[t]he plaintiffs filed this lawsuit to ask the Supreme Court to overrule its decision in . . . “Colorado II,” and urge us to rule against them ‘promptly’ to facilitate the higher court’s review”).
The Shareholders and Attorneys of
EGERTON, McAFEE, ARMISTEAD & DAVIS, P.C. are pleased to announce
Davis M. Capps, Daniel P. Hesketh, and Jordan T. Newport have joined our firm
900 S. Gay St., Suite 1400, Knoxville, TN 37902 Telephone: 865.546.0500 Fax: 865.525.5293
To learn more about our team, visit our Team page at www.emlaw.com
By: Amanda Reyes 2026 JD Candidate, Duncan School of Law
Diversity has always been a fundamental part of my life, perhaps in ways I didn’t fully understand until I left my rural community in South Texas. Growing up in a predominantly Latino/Hispanic community near the Rio Grande border with Mexico, my understanding of diversity was rooted in my immediate surroundings. Everyone speaks Spanish, celebrates similar traditions, and shares the same cultural background. In my mind, diversity meant a variety of Hispanic/Latino experiences who have different histories yet share many aspects of daily life. However, upon moving to Knoxville, a place where the Latino/Hispanic population is not as clearly visible, I found myself in a place where people didn’t look like me, speak like me, or have the same cultural references. I experienced a culture shock that reshaped my understanding of what diversity means in broader terms, and particularly how crucial it is in the legal field.
The legal field holds a unique responsibility to represent and serve people from all walks of life, yet it has historically struggled with issues of inclusion and representation.1 Through my personal experiences and reflection, I have come to realize how essential diversity is not only for fostering empathy and understanding but also for ensuring justice and fairness. In a legal system that seeks to serve the diverse needs of society, the inclusion of varied perspectives is critical for equitable outcomes.
In South Texas, diversity within the Latino/Hispanic community was present, but often subtle, in terms of non-Hispanic/Latino peoples.2 Everyone around me speaks both Spanish and English, and our cultural practices are heavily influenced by Mexican traditions. Whether it was celebrating Dia de Los Muertos (Day of the Dead), eating tamales during Christmas, or navigating the bilingual world that is a dominant characteristic of the Texas-Mexico border, my community felt homogenous in many ways. We share a collective identity tethered to our heritage and geography. This gave me a strong sense of belonging and cultural pride, but it also created a bubble where I wasn’t often able to encounter other ethnicities or cultures in meaningful ways. At that time, I understood diversity as the nuances within our Latino community, whether someone was first-generation or thirdgeneration American, whether they spoke fluent Spanish or just a few words, whether they had ties to Mexico or were more disconnected from their roots. While these differences were significant, they didn’t prepare me for the kind of cultural diversity I would encounter when I moved to East Tennessee.
Perhaps one of the most difficult parts of my experience in East Tennessee has been feeling like the “other” in many situations. In South Texas, I was part of the majority, and my identity was normalized. In Knoxville, it’s not quite the same. Whether its people asking me where I’m “really from” or being one of the few persons of color in a room, these moments have made me aware of my ethnicity in ways I never had to think about before. Upon moving to Knoxville, I immediately felt the
absence of a large Hispanic/Latino community. The people around me had different cultural practices, and even the sights, sounds, and food felt foreign. While I had always thought of myself as being open-minded, this experience revealed just how sheltered I had been in South Texas. For the first time, I found myself having to explain parts of my identity that I had always taken for granted.
However, this experience also brought to light the significance of diversity and how deeply it influences interactions, understanding and decision-making. Living in Knoxville has allowed me to experience firsthand the impact of not seeing yourself reflected in the people around you, in community leaders, or those making decisions. This understanding became particularly relevant when I considered how crucial diversity is within the legal field, where the stakes are high, and people’s lives and freedoms are often in the hands of others.
One of the most important things I have learned about diversity is the role it plays in representation and inclusion. Representation matters because it fosters trust in the legal system. When people see themselves reflected in their lawyers, judges, and lawmakers, they are more likely to believe that they will be treated fairly.
In today’s evolving legal landscape, it’s more important than ever to recognize and embrace the value of diversity not just in hiring practices, but also in the decision-making process. These individuals must be given meaningful opportunities to contribute, have their voices heard, and hold a seat at the table where critical decisions are made. Reflect on your practice and ensure that people from all backgrounds are fully included in strategic discussions, client relations, and leadership roles. True diversity is about creating an environment where everyone has the opportunity to influence the direction of your practice and contribute to the success of your clients.
My move from South Texas to Knoxville has been a journey of personal growth and learning, especially in the understanding of diversity. In a field as impactful as law, diversity is not just a goal, it’s a necessity. It allows for a broader understanding of the human experience, ensures that marginalized voices are heard, and ultimately strengthens the system’s ability to serve all people.
1 From 1950 to 1970, only 3% of lawyers were women and as of 2023, 39% are women lawyers; in 2013, lawyers of color were 11% in the profession and rose to 21% in 2023; American Bar Association, (2023, November 29) 2023 Profile of the Legal Profession report, https://www.americanbar.org/content/dam/aba/ administrative/news/2023/potlp-2023.pdf.
2 The Rio Grande Valley white population fell from 14.1% in 2012 to 11.7% in 2022, while the Hispanic population grew from 80.9% to 82.4%. All other racial groups combined only total 6% of the region’s population. Glen Hegar, Texas Comptroller of Public Accounts, Upper Rio Grande Region (2024), https://comptroller.texas. gov/economy/economic-data/regions/2024/rio-grande.php#:~:text=The%20 region’s%20white%20population%20fell,in%202022%20(Exhibit%204).
By: Melissa B. Carrasco Carrasco Trump, PLLC
Consider the following, from the Tennessee Code regarding clerks of court:
Each of the courts has a clerk, elected or appointed for a term of years, whose duty it is to attend the court and perform all the clerical functions of the court. Each clerk of a court must also, before entering on the duties of the office, take an oath to support the constitutions of the United States and of this state, and to execute the duties of the office without prejudice, partiality or favor, to the best of the clerk’s skill and ability; also, that the clerk has neither given nor will give to any person any gratuity, gift, fee or reward in consideration of the clerk’s support for the office, and that the clerk has neither sold nor offered to sell, nor will the clerk sell, the clerk’s interest in the office.1
And finally: “Each deputy shall take the oath appointed for the qualification of public officers, and an oath faithfully to discharge the duties of the office to the best of the deputy clerk’s skill and ability.”2
Mrs. Bertha Hinkle was in a tough spot.3 She was injured in an automobile accident and sued Mr. Ralph E. Irick.4 Despite what likely was a very well-tried case by Knoxville attorney Karl Saulpaw, Jr. of Ambrose & Wilson, the jury rendered a defense verdict for Mr. Irick. But, Mr. Saulpaw wasn’t done. Before the verdict was entered, he filed a motion for a new trial.5
On November 19, 1955, Mr. Saulpaw argued Mrs. Hinkle’s motion with attorney Andrew Johnson of Kramer, Dye, McNabb and Greenwood opposing.6 The Honorable William C. Burton denied Mrs. Hinkle’s motion and wrote a note in the margin of the motion: “11-1955 overruled.”7 Later that day, Judge Burton left the Courthouse, had a medical event, was taken to the hospital, and never left. He passed away on Christmas Eve 1955.8
Meanwhile, Mr. Saulpaw and Mr. Johnson did what attorneys are supposed to do. They drafted and filed an order denying Mrs. Hinkle’s motion for a new trial and filed it with the Clerk of Court.9 On January 1, 1956, a new Court term began, and given the circumstances, the draft order sat unsigned and unentered. One can hardly blame the Circuit Court Clerk.10 Given Judge Burton’s sudden passing during the holidays, surely the air at the old Knox County Courthouse was thick with grief.
After Judge John T. Gilbertson was appointed to the bench in early January, Defense counsel discovered that the order had not been entered. So, he wrote a letter to the Clerk, and asked the Clerk to enter the order—which the Clerk did, entering it on the Court’s minutes for November 19, 1955.11 The minute entry was accurate. It dutifully reflected that the trial judge never signed the order.12
Again, Mr. Saulpaw was not done. Three days before the Clerk entered the order in the Court minutes, he filed a motion to vacate the judgment and grant a new trial on the grounds that the original motion for a new trial had not actually been decided.13 After all, no judge had signed the order from the November 19, 1955 hearing. Once again, oral argument was set, and once again, the Court overruled Mrs. Hinkle’s motion.14 This time, Judgment Gilbertson signed an order stating
Since the minutes of this Court now reflect the fact that the motion for new trial which was filed on November 5, 1955, was overruled by appropriate order, and since said order was entered February 7, 1956 for November 19, 1955, it is the opinion of the Court that the aforesaid motion for new trial of the plaintiff in this cause which was filed and heard February 4, 1956 should be and same is hereby overruled.15
This was a problem. If the Clerk’s entry of the original, unsigned order tendered in November 1955 was effective, then the time to appeal had already come and gone before Mr. Saulpaw even filed Mrs. Hinkle’s second motion for new trial. But, Mr. Saulpaw had one more tool in his toolbelt.
He filed a bill of exceptions (the precursor to filing an appeal back in the day), arguing that the original trial judge, Judge Burton, had never decided the motion for new trial because he never signed an order to that effect.16 He was right. The Tennessee Court of Appeals held that, although the Clerk has the authority and the duty to enter the minutes of each day’s proceeding, that authority is limited to making entries “during the session of the court.”17 In other words, once January 1st arrived, the Court was in a new session, and the Clerk no longer had the ability to enter anything on the minutes of the prior term. The successor judge could correct an error, but only by entering an order, nunc pro tunc, on the minutes of the subsequent term.18
That is what happened, right? Judge Gilbertson entered an order overruling the motion for new trial in a previous term. Everyone did what they were supposed to do. Judgment was properly entered, so Defense wins again, right?
No. Because the original trial judge had not approved the verdict and only the judge who heard the evidence and tried the case could enter a verdict, the Court of Appeals reversed the judgment and remanded the case back for a trial before Judge Gilberston.19
What could the point of this story possibly be? This entire case centers around a unidentified Clerk of the Knox County Circuit Court who properly did his or her job – keeping the minutes of the Court and accurately reflecting the fact that an order was not signed by the trial Judge. Had the Clerk not done his or her job, Mrs. Hinkle would not have had a second chance on appeal.
Those of us who practice primarily in Knox County have the benefit of an amazing group of Court Clerks, a Clerk and Master, and their Deputies, all of whom perform one of the most important and most underappreciated functions of our judicial system – preserving the accuracy of the Court’s records and entering the Orders of the Court, “without prejudice, partiality, or favor.” That is what they swore to do, and we are the beneficiaries of their uncelebrated commitment.
Perhaps KBA member Karl Saulpaw, Jr. recognized that better than anyone. A few years after this case was decided, he left private practice to serve as the Clerk of the U.S. District Court for the Eastern District of Tennessee for 24 years.20
1 Tenn. Code Ann. § 18-1-103 (2024); see also Tenn. Const. Art. VI § 13 (requiring the appointment or election of clerks of court)..
2 Tenn. Code Ann. § 18-1-104 (2024).
3 See Hinkle v. Irick, 300 S.W.2d 54 (Tenn. Ct. App. 1956).
continued on page 22
By: Bridget J. Pyman Arnett | Baker
November’s Hello My Name Is column features attorney McKay Devault, an associate at Hodges, Doughty & Carson, PLLC. Her practice focuses on construction law, creditor’s rights, property law, personal injury, and commercial litigation. McKay began her academic journey at Walters State, earning an Associate’s Degree in Business Administration in 2017. She then went on to complete a Bachelor’s Degree in Economics with a collateral in Mathematics from the University of Tennessee’s Haslam College of Business in 2019. In 2022, she received her law degree from the University of Tennessee.
McKay’s responses demonstrate the importance of embracing challenges to achieve success as an attorney. Early on, she discovered a passion for public speaking and refined her public speaking aptitude through competition. She focused on excelling in law school, ultimately graduating at the top of her class and earning a prestigious federal clerkship. Her time clerking for Judge Varlan sharpened her legal skills and provided invaluable insight into the perseverance required to succeed in the legal profession. By consistently embracing challenges, McKay has laid a strong foundation for a thriving legal career, fueled by the wisdom of seasoned attorneys and her own excitement for the future.
Tell me about your family.
I was raised in Dandridge, Tennessee, by my parents, Darrell and Connie DeVault. I continue to live in Dandridge with my partner, Hunter Wisecarver, who is a TWRA officer. We have two dogs: Teddy, a cavapoo, and Blaze, a border collie.
What is your favorite thing to do with your family?
My favorite thing to do with my family is to spend a day on Douglas Lake boating, jet-skiing, wakeboarding, or fishing. No matter the season, we enjoy the beauty of the water and the Smoky Mountains year-round.
Why did you decide to go to law school?
From a young age, I participated in public speaking competitions and quickly discovered that I love speaking in front of others.
In 8th grade, I won the county-wide speech competition with my speech about the history of Coca-Cola. As I progressed through school, I continued to excel at public speaking, and eventually, one of my college professors, who was a former practicing attorney, suggested that I consider going to law school. Shortly afterwards, I embarked on my journey of becoming a firstgeneration lawyer in my family.
If you could give a new law student one piece of advice, what would it be?
Do not let your LSAT score define your success during or after law school. Standardized tests were never one of my strong suits, and I knew the LSAT would be no different. I produced an average score on the test and thought that this score meant I would not be a good law student or lawyer. However, I learned that after you are admitted into law school, your LSAT score does not matter. From that point forward, you define your own success. In law school, I dedicated myself to my studies and became involved on campus. After three years, I graduated in the top of my class, was named a member of the Order of the Coif, and secured a federal clerkship. Needless to say, none of these honors required a high score on the LSAT.
Was there any significant or formative experience you had during or after law school that relates to your career now?
Upon graduating from law school, I served a one-year appointment with the United States District Court for the Eastern District of Tennessee as a judicial law clerk to the Honorable United States District Judge Thomas A. Varlan. Under Judge Varlan’s guidance and mentorship, I enhanced my research and writing skills and learned about the various factors judges consider important when rendering decisions. This experience jump-started my career as a practicing attorney by familiarizing me with pleadings, rules, and courtroom decorum of the federal judiciary. Overall, completing a clerkship boosted my knowledge and confidence in practicing law.
Working alongside experienced attorneys, both men and women, who have made successful careers for themselves energizes and motivates me at work. As an associate, I am surrounded by seasoned attorneys who have established practices in various areas of the law. They share their vast knowledge of the law and their stories of success and loss with me. Their collective experiences illustrate what it takes to be a diligent advocate for clients and make me excited for what is possible for my own future as a lawyer.
On a September football Saturday, Campbell County hosted its first-ever expungement clinic—a landmark event that could significantly change the lives of many in our community. Expunging criminal records can have a profound impact, particularly for individuals with dismissed charges that still appear on background checks. Such records can hinder a person’s ability to secure employment or housing, even if the charges were dropped.
For some, expunging a conviction can help remove the stigma of a felony and even restore the right to vote—an especially meaningful outcome in an election year. For others, clearing their records represents a fresh start and a chance to turn the page on a past lifestyle. I was especially heartened to hear from several individuals who have worked in recovery support after maintaining sobriety for years and were now able to clean up their criminal histories.
In our rural community, a large group of volunteers gathered to help expunge 207 charges, including convictions and diversions. Additionally, two individuals successfully connected with the University of Tennessee’s Legal Clinic to restore their citizenship rights. The expungement process is generally non-adversarial, and it was inspiring to see representatives from various parts of the justice system come together to make a meaningful difference.
I would like to extend my gratitude to the Legal Aid Society of Middle Tennessee and the Cumberlands and the Tennessee Bar Association’s Young Lawyers Division for coordinating and sponsoring this clinic. This successful event was also made possible by the dedicated work of local elected officials, including District Attorney General Jared R. Effler and his staff, Public Defender Leif Jeffers and his team, Circuit Court Clerk Bobby W. Vann and his staff, and General Sessions Judge Bill Jones.
Finally, I deeply appreciate the efforts of the local lawyers and volunteers from the UT Legal Clinic who brought a strong presence to support this important cause. The KBA and Legal Aid frequently host expungement clinics, which are great opportunities to volunteer—even if you don’t practice criminal law!
When this publication last looked at the state of the law surrounding Chevron U.S.A., Inc. v. Nat’l Res. Def. Council1 and its progeny in April of this year,2 Loper Bright Enters. v. Raimondo3 was still in the hands of the Supreme Court and the state of Chevron deference remained unclear. As pointed out by the prior article, the Justices took widely varying positions during questioning, from Justice Kavanaugh commenting on the unpredictability inspired by Chevron deference, to Justice Jackson looking at the possibility that overturning Chevron would force courts into making policy decisions.4 Since that article was written, the Supreme Court has released its decision in Loper. With the Supreme Court’s decision, the question becomes, where are we now, and where does the state of administrative law go from here.
The first question, where are we now, was answered by the Court overruling Chevron in no uncertain terms.5 In Loper, the Court looks at Article III of the Constitution and the powers it assigns to the judiciary. In its discussion, the Court states “[t]he Framers appreciated that the laws judges would necessarily apply in resolving those disputes would not always be clear…” but also “envisioned that the final ‘interpretation of the laws’ would be ‘the proper and peculiar province of the courts.’”6 It is through this lens that the Court begins its analysis of Chevron.
In Loper, the Court discusses Chevron and its progeny in their historical context, outlining the two-step approach employed to review agency action.7 The first step in this approach is to determine whether Congress has spoken to the precise question at issue. If Congressional intent is clear, the analysis ends. If the Court determines that Congress has not precisely addressed the issue, the second step is to look to whether the agency’s interpretation is based on a permissible interpretation of the statute, regardless of whether the court reviewing the matter would have reached the same conclusion.8 The Court goes on to note that the Chevron analysis is done without mentioning the Administrative Procedures Act (“APA”),9 making any acknowledgement of the fact that the APA specifies that Courts are to decide all relevant questions of law that arise as part of an agency action, or acknowledging the doctrinal shift that was being caused by
moving the interpretation of a statute away from judges and into the hands of the administrative agencies themselves.
As the Court notes, “[i]nitally Chevron “seemed destined to obscurity.”10 However, over time, multiple courts, including the Supreme Court, began invoking the two-step test articulated in Chevron. This move led to the Court revisiting the doctrine repeatedly, resting on “‘a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.’”11 In short, all ambiguity of any kind was intentional and done for the sole purpose of setting up agency interpretation under Chevron. As time went on, the Court struggled with clarifying Chevron and its boundaries, refining it again and again in an attempt to provide much needed stability within the doctrine. This constant revision caused Chevron to become so unworkable that many courts refuse to invoke it even in cases where it might be applicable. In fact, the Supreme Court itself has not made use of Chevron deference since 2016.12 It is this instability that has become “a license authorizing an agency to change positions as much as it likes, with ‘[u]nexplained inconsistency.’”13
For these reasons, the Court overruled Chevron deference finding that Courts must exercise their independent judgment in determining whether an agency has acted within its statutory authority, and, when the statute constitutionally delegates authority to an administrative agency, must respect the delegation, but “courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.”14
The Court explicitly overruling Chevron leaves two questions: (1) how this decision affects the state of administrative law, and (2) how this decision affects the state of administrative law in the state of Tennessee. The first question was addressed by the Court itself. As part of its ruling, the Court held that it does“not call into question prior cases that relied on the Chevron framework…” and that “cases that specific agency actions
are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite [the Court’s] change in interpretive methodology.”15 Thus, if a prior decision held that agency action was lawful based on a Chevron analysis, that decision will stand. However, going forward, courts will not be required to defer to an agency interpretation of the law, and must exercise their own independent judgment.
The next question we are left with is, how Loper affects the state of administrative law in Tennessee. Tennessee, like the federal government, has its own administrative procedures act located at Tenn. Code Ann. § 4-5-101 et seq. There are additional administrative procedures that exist within the governing statutes of governmental entities and departments as well (e.g., Tenn. Code Ann. §§ 27-9-101 et seq., 27-8-101 et seq.). As such, the decision in Loper does not affect the state of the law in Tennessee directly, but there have been movements in Tennessee on the issue of agency deference as well.
Unlike the federal APA, the Tennessee Administrative Procedures Act did not originally contain the express language requiring a reviewing court to decide all relevant questions of law as set forth in 5 U.S.C. § 706. The Tennessee Supreme Court addressed this issue in Colonial Pipeline Co. v. Morgan16 by holding that “an agency does not have the authority to determine the facial validity of a statute under the constitutional requirement of separation of powers.”17 The Tennessee Supreme Court followed its decision in Colonial Pipeline with Pickard v. Tenn. Water Quality Control Bd.18 In Pickard, the Tennessee Supreme Court held “[w] hile an agency’s interpretation of its controlling statutes is ‘entitled to consideration and respect and should be awarded appropriate weight,’ particularly in regard to ‘doubtful or ambiguous statutes,’ an agency’s statutory interpretation is not binding on the courts.”19
While the rulings in Colonial Pipeline and Pickard would seemingly put to rest any question regarding Chevron deference in Tennessee, the Tennessee General Assembly attempted to bring the issue to a close once and for all in 2022 by passing Tenn. Code Ann. § 4-5-326. That statute states “[i]n interpreting a state statute or rule, a court presiding over the appeal of a judgment in a contested case shall not defer to a state agency’s interpretation of the statute or rule and shall interpret the statute or rule de novo. After applying all customary tools of interpretation, the court shall resolve any remaining ambiguity against increased agency authority.”20 And while this statute is very clear as to the legislative intent that statutory interpretation remain with the court, one issue remains. The statute, in addressing state agency interpretation, left out interpretation of those governmental agencies that are not at the state level, including municipalities, counties, school boards, etc. It is uncertain whether this was an intentional omission by the legislature intended to leave the ability to interpret a statute with those local level agencies or whether it was pure oversight, and, at this point, there have been no court rulings on this issue.
While not directly impacted by the decision in Loper, the trend in Tennessee regarding administrative agency deference appears to be following a similar path. Only time will tell what the lasting ripple effect of Loper will be and what that will mean for administrative agencies going forward.
By: Sarah D. Jarrard Staff Attorney, City of Oak Ridge
1 Chevron U.S.A., Inc. v. Nat’l Res. Def. Council, 467 U.S. 837 (1984).
2 Brian Bibb and Matthew Morris, Running on Empty: The Uncertain Future of Chevron Deference, DICTA p. 16, April 2024.
3 Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024).
4 Bibb and Morris, supra note 2 at p. 16.
5 “Chevron is overruled.” Loper, 144 S. Ct. at 2273.
6 Loper, 144 S. Ct. at 2257.
7 Id. at 2264.
8 Id. at 2265 (“Chevron defies the command of the APA that ‘the reviewing court’— not the agency whose action it reviews—is to ‘decide all relevant questions of law’ and ‘interpret . . . statutory provisions.’ It requires a court to ignore, not follow, ‘the reading the court would have reached’ had it exercised its independent judgment as required by the APA.”)
9 5 U.S.C. § 551 et seq.
10 Id. at 2264.
11 Id. at 2265.
12 Id. at 2271-72.
13 Id.
14 Id. at 2273.
15 Id
16 Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827 (Tenn. 2008).
17 Id. at 844 (citing Tenn. Const. Art. II, § 2).
18 Pickard v. Tenn. Water Quality Control Bd., 424 S.W.3d 511, 513 (Tenn. 2013).
19 Pickard, 424 S.W.3d at 523 (emphasis added).
20 Emphasis added.
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By: Grant Williamson Bradley Arant Boult Cummings LLP
Beginning an article that will not even touch one thousand total words with a disclaimer feels like an overly-lawyerly thing to do, but I apologize in advance because I am going to begin this article with a disclaimer.
DISCLAIMER: I AM THIRTY-ONE YEARS OLD, WHICH MAKES ME A MILLENNIAL. THEREFORE, I AM POTENTIALLY BIASED WITH RESPECT TO THE SUBJECT MATTER THAT I WILL BE DISCUSSING. PLEASE HOLD ME HARMLESS FROM ANY NEGATIVE CONSEQUENCES YOU MAY EXPERIENCE FROM READING ANOTHER ARTICLE ABOUT MILLENNIALS.
With that out of the way, I hope that you will not roll your eyes and flip the page when you see that this is yet another article about millennials. Articles discussing millennials, especially the negative ways in which they are different from the prior generation, seem to pop up every single day, so I apologize again for adding another article to the pile. I do think, however, that I have some authority to speak about how older attorneys should try to relate to younger attorneys because I am five years into my career and beginning to interact with and oversee work done by attorneys in Generation Z. As more millennials and Generation Z attorneys enter the profession, and as attorneys in older generations are forced to work with and understand them, it is critically important to relate to each attorney as an individual and not as part of a broadsweeping generational group. Understanding the differences between the attorneys we work with and across from can only benefit the profession and our clients.
The characteristics that are most commonly thrust on millennials as a whole are, in short, that they do not work hard and that they do not want to work. To avoid the generalities which have created those very stereotypes, I will admit that there are probably some millennials that do not work hard and that do not want to work, but I am sure that there are also some members of Generation X that do not work hard and that do not want to work. Instead of thrusting an idea of what someone values or who someone is onto them, the legal profession would be well-served if its more-seasoned members worked to relate to each new member of the profession as an individual who sees the world and the profession in their own way, and conversely, if its newest members worked to understand the older members of the profession as individuals who see the world and the profession in their own different way that was influenced and shaped by incredibly different factors.
The reality is that each generation will have be different from the ones before it, but that does not mean that those differences are always bad or that they should immediately cause someone to look at a peer in the profession and think, “Well, that young attorney wants to be able to work from home so that must mean that they do not want to work.” Falling victim to these stereotypes and generalities stagnates the profession – doing things the way they have always been done is not right in and of itself (but we should not always abandon doing things the way they have always been done either). If a younger attorney requests to work from home one day a week or even *gasp* a few days a week, rather
than immediately labelling them as another lazy millennial, step back and consider the reasons they may have for wanting to work from home. Please also consider that during the height of the COVID-19 pandemic, many law firms experienced significant increases in revenue despite sending attorneys to work from home for their safety. It may be that this attorney simply wants to be home to help take care of a child or a parent, or for any other number of reasons, and will still be more than capable and willing of getting all of their work done. From my own experience, when I want to work from home, it is not because I am trying to shirk my responsibilities at work but because I am trying to help my wife balance her own career and caring for a sick child or because I am going to be traveling to see family, and if I can work remotely, it gives me one extra day for my children to be with their extended family. I know that the partners I work with at my firm understand that. I hope more partners at other firms try to understand where an attorney from a different generation is coming from when they make a similar request.
The 21st Century Lawyer may have more access to technology and other things that past lawyers did not have access to, but my hope is that the 21st Century Lawyer is also more patient and understanding of their colleagues than past lawyers were.
By: Paula Schaefer Art Stolnitz Distinguished Professor of Law University of Tennessee College of Law
The ABA Standing Committee on Ethics and Professional Responsibility has been busy in 2024, issuing five formal ethics opinions thus far. Two of the 2024 opinions explain the application of professional conduct rules in settings that were not contemplated at the time the rules were adopted—namely, in the use of Generative Artificial Intelligence (GAI) and in posting client information on listservs. Other of the year’s opinions provide detailed guidance about how to navigate and avoid conflicts of interest in dealings with prospective clients and in using confidential government information in private practice. Finally, another 2024 opinion explains the implications of recent changes to the Model Rules 1.16—an opinion that will be useful not only to lawyers, but also to states considering making a similar amendment to their Rule 1.16.
In the following sections, I briefly describe each of the 2024 ABA Formal Ethics Opinions,1 and refer the reader to additional analysis in Schooled in Ethics columns this year.2
ABA Formal Opinion 513, Duty to Inquire Into and Assess the Facts and Circumstances of Each Representation (August 23, 2024).
This August formal ethics explains that the recent amendment to Model Rule 1.16(a) is aimed at reducing the risk of counseling or assisting a crime or fraud by requiring lawyers to “inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the representation.” The opinions explains that “additional inquiry and assessment is required when the lawyer becomes aware of a change in the facts and circumstances relating to the representation that raises questions about whether the client is using the lawyer’s services to commit or further a crime or fraud.”
In my January 2024 Schooled in Ethics column, I addressed the recent changes to Model Rule 1.16—including the duty to inquire into and assess facts and circumstances of a representation to determine if a lawyer can accept or should withdraw from a representation. The column is titled The Relevance for Tennessee Attorneys of the ABA’s Amended Model Rule 1.16. I explained that Tennessee lawyers would benefit from understanding the new Model Rule 1.16 (even though Tennessee’s rule has not yet been amended) because the amended Model Rule accurately reflects a lawyer’s legal and ethical duties to avoid helping a client commit a crime or fraud. For the same reasons, Tennessee attorneys would also benefit from reading ABA Formal Opinion 513.
ABA Formal Opinion 512, Generative Artificial Intelligence Tools (July 29, 2024).
In what will be the most significant and most frequently cited formal ethics opinion of the year, ABA Formal Opinion 512 addresses various professional conduct issues implicated by GAI. This opinion is required reading for all attorneys—including those who have not yet learned enough about GAI to know if they should be using it in their practice.
The formal opinion is lengthy, and includes detailed discussions
of the duty of competence (including the obligation to understand the benefits and risks of GAI and learning how to competently use the tool in the representation of a client); confidentiality (understanding the GAI risks to confidentiality and seeking client informed consent to any such disclosure); communication (beyond the issue of confidentiality, navigating when a lawyer should disclose GAI use to clients and seek informed consent to the use of a particular GAI tool); candor toward the tribunal (including avoiding citing cases hallucinated by GAI); supervisory responsibilities of lawyers managing and supervising lawyers and non-lawyers in the use of GAI); and fees (whether billing for the expense of GAI tools or for attorney time actually expended in using such tools).
Alex Long discussed Formal Opinion 512 in detail in last month’s Schooled in Ethics column titled New ABA Ethics Opinion on the Use of Generative Artificial Intelligence in the Practice of Law. Additionally, in March 2024, Professor Long wrote another GAI-focused column titled Legal Ethics Issues Involving Artificial Evidence Continue to Emerge.
ABA Formal Opinion 511R, Confidentiality Obligations of Lawyers Posting to Listservs (May 8, 2024).
This opinion considers whether a lawyer is impliedly authorized by clients to seek assistance in a representation by posting confidential client information on a listserv of attorneys. The opinion answers the question in the negative, determining that when such questions are posted— even in the form of a hypothetical—the lawyer violates the duty of confidentiality under Rule 1.6 “if there is a reasonable likelihood that the lawyer’s questions or comments will disclose information relating to the representation that would allow a reader then or later to infer the identity of the lawyer’s client or the situation involved.” An attorney can avoid violating the confidentiality rule by obtaining a client’s informed consent prior to making such a disclosure.
ABA Formal Opinion 510, Avoiding the Imputation of a Conflict of Interest When a Law Firm is Adverse to One of its Lawyer’s Prospective Clients (March 20, 2024).
This opinion addresses the “reasonable measures” that a lawyer must take to avoid imputation of a conflict of interest that would prohibit a firm being adverse to a firm lawyer’s prospective client. The opinion encourages lawyers to limit exposure to disqualifying information by focusing in an initial meeting on: (1) information needed to determine whether the lawyer can take the matter (including obtaining information relevant to whether there is a conflict of interest, whether the lawyer has necessary competence, etc.); and (2) information “reasonably necessary” to determine if the engagement is one the lawyer is willing to accept. The opinion suggests that lawyers should caution prospective clients “not to volunteer information pertaining to the matter beyond what the lawyer specifically requests.”
In June 2024, Alex Long’s Schooled in Ethics column addressed
continued on page 24
If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835.
The Barristers are seeking nominations for the following officers to serve in 2025:
• Vice President
• Secretary/Treasurer
• (2) Member-At-Large Seats
Please notify Bridgette Fly (bfly@knoxbar.org) by November 13 if you want to nominate someone or are interested in running for a Barristers office. Please note that the person elected Vice-President in December will automatically become the Barristers President for the 2026 bar year. Candidates must be current attorney KBA members. Voting will take place at The Barristers Elections and Holiday Party on Wednesday, December 11, from 5-7 pm.
Plan now to attend the Barristers monthly meet-up on Wednesday, November 13, starting at 5:15 pm at The Firefly, the outdoor patio at the Hilton, located at 501 W. Church Avenue, Knoxville. Social time starts at 5:00 pm. All Barristers members are invited to attend, meet fellow attorneys, and learn about upcoming Barristers events.
Join us for a fun trivia night and mixer on November 6 at Ebony & Ivory Brewing Co.! Enjoy friendly competition while getting to know other
legal professionals! You do not need a team in order to attend. Teams will be randomly comprised of individual registrants, but you can identify if there’s someone you want on your team when you register. Attorneys, new admittees, and law students are all welcome to join!
5:30 - 6:30 pm: Meet Your Team & Networking
6:30 pm - 7:30 pm: Live Trivia provided by The Trivia Guys
The Knoxville Barristers will host the annual Second Harvest Food Drive Competition from November 4 through 20, 2024. Second Harvest Food Bank is East Tennessee’s largest hunger relief charity, operating programs in 18 counties. Their programs provide food to more than 134,000 children, adults, and seniors each month.
If your firm would like to participate in this year’s drive, please contact Bridgette Fly at bfly@knoxbar.org before November 8. Interested firms will need to provide the total number of full-time employees. Anyone can win this year’s friendly competition! The winner will be determined by the number of meals per employee so that both the weight of the donated food and the monetary donations are included in the calculations for the final standings.
By: Jimmy Snodgrass Kramer Rayson LLP
The Sixth Circuit has recently expanded on what exactly an employee must say to request an accommodation in Yanick v. Kroger Company of Michigan, Case No. 23-1439, 2024 WL 1856680 (6th Cir. Apr. 29, 2024). Ultimately, the Sixth Circuit found that an employer may be required to infer that an employee needs a reasonable accommodation based on the context of their medical history and comments tied to a disability.
In this case, Ms. Yanick was the manager of a local “Kroger’s” bakery department for fifteen years.1 She was diagnosed with breast cancer and had several issues with the new store manager, as the manager thought that the bakery department did not meet her standards. Ms. Yanick met with the new store manager three times from February 7 to 15, 2018, about alleged performance deficiencies. During one of these meetings, Ms. Yanick explained that she had a lot going on, as she had a doctor’s appointment the day before and had an upcoming biopsy.
Shortly after the third meeting, Ms. Yanick went on medical leave, and her doctor noted that she needed leave to avoid “undue mental distress” and undergo surgery. She then returned to work on June 11, 2018, without restrictions. However, she continued to have issues with the store manager, who felt that she was not meeting expectations. Ms. Yannick explained that she “was struggling and needed some time to get back to normal” and had worked 53 hours her first week back, which was “hard for [her] physically.” These issues continued and on June 26, 2018, Ms. Yanick transferred to a different department and ultimately ended up working as a bakery clerk at a different store with a lower salary and less authority.
Ms. Yanick subsequently brought claims for disability discrimination, failure to accommodate, and retaliation under the ADA, and the Eastern District of Michigan granted summary judgment to Kroger. However, the Sixth Circuit found that Ms. Yanick’s failure to accommodate claim raised a triable issue of fact. The Sixth Circuit relied upon Ms. Yanick’s statements after returning from leave that she “needed some time to get back to normal,” that she “was struggling,” and that the job “was hard for [her] physically.” The Sixth Circuit explained that “[o]ne could reasonably understand these comments as a request for a reduced work schedule.” The key rationales were that Ms. Yanick’s potential request was tied to her disability, and one could reasonably infer from context that her physical struggles stemmed from her disability.
Kroger claimed that because Ms. Yanick had returned to work without restrictions, it could not have been aware that her comments were tied to a medical restriction. However, the Sixth Circuit noted that
although “that assumption was appropriate initially . . . that was no longer the case once Yanick explained that she was still struggling physically.”
Ultimately, the Sixth Circuit’s decision in Yanick is a short, easy-toread opinion that reviews applicable case law and highlights the pitfalls that employers can face regarding potential requests for accommodation. For example, the Court provided a helpful summary of applicable Sixth Circuit decisions:
• First, there is no bright line rule for determining whether an employee requested an accommodation.
• Second, employees need not use words like “accommodation” or “disability.”
• Third, requests for an accommodation do not need to be in writing.
• The Court “assesses whether the employee communicated a need for an adjustment at work because of a disability.”
• Ultimately, employers “must draw reasonable inferences from what an employee says, bearing in mind the statements’ context.”
A key takeaway from the Yanick decision is that employers must be careful to evaluate problems with employees who have conveyed potential disability or medical issues in the past. Additionally, employers must pay special attention to employees who have returned from medical leave and may be expressing a potential need for an accommodation. Put simply, there are no magic words that an employee must say in order to request an accommodation.
However, the Yanick decision also shows the confusing part of our jobs in advising employers, as the Court found that Ms. Yanick’s comments raised a triable issue of fact as to whether she requested an accommodation, despite being “no model for how to make an accommodation request.” The Sixth Circuit distinguished its decision from an earlier case, Leeds v. Potter, 249 F. App’x 442, 449 (6th Cir. 2007), where the Court found that an employee who told his supervisor that his job was “kicking [his] ass” did not request an accommodation. Lastly, as a reminder, after an employee requests an accommodation, the employer is required to engage in the interactive process to determine whether a reasonable accommodation can be implemented.
1 This apostrophe saved Judge McKeague from falling into the trap that many of our parents and grandparents do (or at least mine), i.e., referring to the “Krogers,” “Aldis,” and “JCPenneys.”
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 Jimmy Snodgrass at jsnodgrass@kramer-rayson.com.
By: Hannah Lowe
On September 27, 2024, the KBA held another successful annual Health Fair and Wellness Conference. At the morning Health Fair, I got my flu shot from Mac’s Pharmacy. I also tried some acupuncture offered by Balanced You Clinic (5-point needle protocol, which involves placing small needles into 5 points on the ear skin surface and is designed to balance and calm the sympathetic nervous system) and met with the other local wellness vendors. Thank you to all the vendors for coming to support our group’s well-being.
Unfortunately, due to Hurricane Helene, we had to cancel the downtown history walk with Jack Neely. We hope to reschedule it for another date, so watch out for the rescheduled date in your inbox soon.
We enjoyed a delicious lunch from Goodness to Go before the CLE sessions in the afternoon.
Conference, moderated by Wellness Committee member Deb House, Executive Director of Legal Aid of East Tennessee. The discussion was excellent, covering how social workers can help lawyers dealing with compassion fatigue, identifying the symptoms of compassion fatigue, and tips for self-care and avoiding burnout.
The final CLE session, Dealing with Difficult People Without Losing Your Mind or Your Well-Being, was led by Josh Hedrick, attorney with Knox Defense. Unfortunately, his co-presenter, Andria Yates with the University of Tennessee Department of Psychology, was unable to come because of Hurricane Helene, but Josh gave us a very interesting and engaging presentation, sharing his experiences of dealing with difficult clients, and discussing tools for addressing our own well-being when faced with difficult people in our practice.
Jim Milam, Disciplinary Counsel with the Tennessee Board of Professional Responsibility, kicked off the afternoon session talking about how wellness impacts attorneys’ ethical obligations. Lawyers are at increased risk of anxiety, depression, burnout, substance abuse, suicide, and other mental health disorders, all of which can impact our personal and professional lives. Jim reminded us that well-being is a broad, holistic topic encompassing mental, physical, emotional, financial, spiritual, occupational, intellectual, and social health, and that well-being is an indispensable part of a lawyer’s duty of competence.
The second CLE session, Support for the Compassionate Lawyer: Understanding the Effects of Trauma and Compassion, with a panel including Bree Conkin, Clinical Social Work/Therapist; Ragan Schriver, Associate Professor of Practice at the University of Tennessee College of Social Work; and Brennan Wingerter, Assistant Public Defender and Appellate Director at the Tennessee District Public Defenders
THE OATH, continued from page 13
4 Id. at 55.
5 Id
6 Id. Kramer, Dye, McNabb and Greenwood is now the esteemed law firm of Kramer Rayson, LLP.
7 Id.
8 Id.
9 Id.
10 Despite diligent research, this author has not been able to definitively identity the individual who served as Circuit Court Clerk during this period but will keep researching until an answer is found.
11 Id. 55-56.
12 Id. at 56.
13 Id.
14 Id.
The CLE sessions were recorded and will be made available for you all to watch on-demand if you were not able to join us. I hope you will consider joining us for the KBA’s Wellness Conference every year.
For anyone who has felt the symptoms of anxiety, depression, burnout, or other mental health issues, you are not alone. There are resources out there that can help. If you or someone you know is having thoughts of suicide, please call 988 or reach out to a health care professional. TLAP also offers confidential assistance for a wide range of issues, including referrals for health assessments, counseling, mental health treatment, and substance abuse treatment, and can be reached at 615-741-3238.
We encourage you to become involved with the KBA Wellness Committee. If you have feedback for us from the 2024 Wellness Conference, or ideas for activities or programs focusing on attorney wellbeing, please get in touch.
15 Id.
16 Id.
17 Id.
18 Id.
19 Id. at 59.
20 Court Historical Society Newsletter, Eastern District of Tennessee p. 2 (Sept. 2017), available at https://www.tned.uscourts.gov/sites/tned/files/0917history.pdf.
By: Andrew McRee Lincoln Memorial University Duncan School of Law
Please tell me about yourself.
My name is Taylor McCarty. I was born and raised in Sevier County, Tennessee. I spent my childhood in Kodak before moving to Pittman Center. I am the oldest of five children and the first in my family to graduate college. I attended Northview Academy for high school, where I excelled in running track, earning four state metals between my junior and senior years.
Early in life I found I had a great affinity for emerging technology. STEM classes came naturally to me. I attended Tennessee Technological University and majored in mechanical engineering. The math and science classes came naturally to me, and I spent most of my years at Tech tutoring other students. I enjoyed my time at Tech and found success there, graduating summa cum laude.
How did you make the decision to go to law school, and why did you pick LMU law?
Before I went to school for engineering, my dad and granddad urged me to pursue a legal career, but being a stubborn eighteen-year-old, I thought that law was stuffy while engineering was “cool.” I enjoyed my course work the first two years of college and learned how numbers and equations could explain how the world works. But then I began to understand the reality of my engineering pursuit. I was a good student, but the odds of working for a cutting-edge company were slim. What made me stand out? I realized what separated me from other engineering students was that I was more of a “people person” than most in the program. I enjoyed people and making new friends. While these qualities might not be front and center for a great engineer, they are for a good attorney.
During my junior year, I pursued fluid mechanics research while also working part-time at a title office. By the end of my junior year, I changed course and started pursuing a legal career where I could work with people. That summer, I also learned about the patent industry––an industry that would marry my interests in technology and my preference for dealing with people instead of computer programs. This became my new goal.
I chose LMU because I knew I wanted to be back in East Tennessee, and when it came to picking between the University of Tennessee and LMU, LMU felt more like home. After talking with some alumni and current administration, LMU felt like a tight-knit community. In choosing an undergraduate university, I found success in going to the smaller, more affordable alternative to UT. It felt right to do the same thing again.
Tell me about your law school experience so far: what activities and classes have you participated in and enjoyed?
My law school experience has been everything I hoped it would: challenging, rewarding, and sometimes even enjoyable. Some may grimace, but my favorite classes are Civil Procedure and Evidence. I think
this comes from my competitiveness and growing up playing sports. The best athletes were often those who knew the rules better than anyone else. I believe the same applies to law. You must know the rules of the game better than the person on the other side of the courtroom or negotiating table to be successful.
Shortly after my first semester at LMU, I found myself immersed in our student organizations. It started with our Mock Trial Program, where I unexpectedly took an executive board position prior to my 2L year. Being in mock trial, I had to compete as an advocate in LMU’s mock trial competition. Prepping for, competing, and ultimately winning the competition was nothing short of a blast. In addition to the Mock Trial Program, I am a class senator in the Student Bar Association.
What type of law do you want to practice, and where would you like to end up?
I plan on practicing intellectual property law here in Knoxville, Tennessee. Last summer, I had the privilege of clerking in Merchant & Gould’s Knoxville office, where I worked on matters involving patent prosecution and patent litigation. I accepted a full-time position there starting in Fall 2025. I hope to realize my goal of combining my “people person” attitude with my passion for technology and science.
Outside of law school, what do you enjoy doing?
I spend my weekdays working out, running, and being health-conscious, but I admit my favorite splurge is Tollhouse chocolate chip cookies. On weekends and during breaks from school, I get outside or visit with family. I enjoy hiking and backpacking here in the Appalachians and exploring the other great wildernesses of America. This past summer, my younger brother and I spent two weeks exploring Sedona, the Grand Canyon, and Utah’s Mighty Five.
What is your ultimate “why” with respect to being a future attorney?
In my mind, attorneys are professionals who are often viewed as upstanding members of their communities. In addition to their work, they usually serve on boards and committees, in addition to holding public office or providing pro bono services to those in need. When I was a kid, being “successful” to me meant that I wanted to be a respected member of my family and community. This dream pushed me to be the first in my immediate or extended family to attend and graduate college. This dream has led me to where I am today, and the practice of law allows me to pursue that dream further.
Finally, what is the biggest lesson you have learned in law school?
The biggest lesson I have learned in law school isn’t in any of the books I bought, but it is that character matters. The best opportunities come to the students that make meaningful connections with others by having a sincere, genuine, and kind character. Professor Beverly succinctly states this lesson to his first-year students with five simple words: “Be nice to the staff.” How well you did in a random class is not what you’ll be remembered for. For better or worse, you’ll be remembered for your character and how you treated others.
Formal Opinion 510 in a piece titled Important Guidance on Prospective Clients.
ABA Formal Opinion 509, Disqualification to Prevent the Misuse of “Confidential Government Information” (February 28, 2024).
ABA Formal Opinion 509 is aimed at clarifying the scope of Model Rule 1.11, the rule that addresses Special Conflicts of Interest for Former and Current Government Officials and Employees. Model Rule 1.11(c) provides that a government lawyer who has obtained confidential government information (defined as information obtained under government authority, that the government is prohibited from disclosing or has a legal privilege not to disclose, and that is not available to the public) about a person cannot thereafter use that information while representing a private client with interests adverse to the person. The opinion explains that the rule applies to former government employees (now in private practice) and to government employees who also maintain a (full-time or part-time) private law practice. The opinion also notes that “private client” means any client represented by a private law practice, including clients that are public entities.
1 The 2024 Formal Ethics Opinions are available by issue date on the ABA Center for Professional Responsibility website. https://www.americanbar.org/groups/ professional_responsibility/publications/ethics_opinions/aba_formal_ethics_ opinions_index_by_issue_dates/
By: Jason Long Lewis Thomason, P.C.
This column will run in the issue of DICTA that publishes just before the presidential election. I have read for months that this is one of the closest elections in the history of the country. As a tribute, this month’s Top Ten List is dedicated to the Ten closest presidential elections (per the Electoral College) in the history of the United States.
10. 1968 – Richard Nixon over Hubert Humphrey. Who knew? I always assumed this was something of a blowout. The Democrats were buckling under the Johnson Administration and its unpopular war, charismatic candidate and heir to the throne Bobby Kennedy had been assassinated on the campaign trail, a riot broke out in the streets between protesters and the Chicago police during the nominating convention, and the party nominated one of the most liberal standard bearers it could find in Hubert Humphrey. It was a recipe for disaster of epic proportions, but a scrappy Humphrey evidently was able to keep it relatively close, losing 301 to 191 in the Electoral College (George Wallace garnered 46 votes as well). Sounds like a blowout, but really Nixon and his silent majority only carried 55.95% of the vote.
9. 1976 – Jimmy Carter over Gerald Ford. Gotta kinda suck to be Gerald Ford in 1976. He lost as an incumbent (hard to do to begin with), added to which he is the only Republican candidate to lose in the quarter century between 1968 and 1992. It didn’t help that he pardoned Nixon. The peanut farmer beat him 297 to 240, receiving 55.2% of the total Electoral College vote.
8. 1884 – Grover Cleveland over James Blaine. This campaign is known (to the extent anyone knows anything about the great Cleveland/ Blaine contest) for copious mudslinging and personal attacks. Blaine had been accused and hounded for selling his influence in Congress. Meanwhile, Cleveland was considered a paragon of virtue and trust (his nickname was “Grover the Good”) until Republicans uncovered evidence that he had fathered an illegitimate child. Cleveland eventually overcame this revelation to win 219 to 182, winning 54.6% of the vote.
7. 2004 – George W. Bush over John Kerry. I honestly did not recall this election being that close, so color me surprised. Also, you have to be impressed that, even as it comes in at number 7 on the list, the 2004 election was an improvement in W’s electoral success over his efforts four years earlier (see below). The younger Bush won 286 to 251, taking 53.16% of the vote.
6. 1800 – Thomas Jefferson over John Adams. Full candor here, I am a huge fan of John Adams. I honestly believe he did more than almost any single individual to bring about the birth of our nation (George Washington may have him beat, but it’s really close). That being said, he wasn’t a great president, and the country was done with him after four years. Also, good rule of thumb in presidential elections, the taller candidate usually has an advantage going in (all other things being equal)
– John Adams was 5’7” and Jefferson was 6’2”. Jefferson won 73 to 65, collecting 52.90% of the vote.
5. 1916 – Woodrow Wilson over Charles Evans Hughes. A close win for the incumbent over a former Associate Justice of the Supreme Court (you don’t see that every day). Wilson campaigned on a platform of international neutrality with the slogan “He kept us out of war,” referring to World War I then raging in Europe. The U.S. officially entered the war three months after his inauguration. Nonetheless, Wilson won 277 to 254 with 52.17% of the vote.
4. 1796 – John Adams v. Thomas Jefferson. Forget what I said about the tall guy winning. These two were like equally matched heavyweight boxers going after each other in close round after close round. Adams won this first bout on the strength of his incumbency as Washington’s Vice-President and natural heir apparent. He won 71 to 68 with 51.45% of the vote.
3. 2000 – George W. Bush over Al Gore. Here we go. Dimpled chad, hanging chad, swinging chad, whatever kind of chad you want (did you know that the plural form of chad is “chad“?). This election, while not number one on this list, nonetheless continues to hold the top spot in the hearts of many as the most bizarre, hotly contested election in history. With Florida ultimately going to Bush, he won 271 to 266 with 50.37% of the vote (many will say to this day that he won by one vote). I will say, you have to admire both of these candidates for the way they personally handled the controversy. While their supporters may have crossed a few lines, both Bush and Gore conducted themselves with great civility and an appreciation for the process.
2. 1876 – Rutherford B. Hayes over Samuel Tilden. Talk about something that could never happen today. On first count, Tilden was leading Hayes by 19 electoral votes, with 20 remaining votes from Florida, Louisiana, South Carolina, and Oregon unconfirmed and disputed. Congress established the Electoral Commission to resolve the disputed votes and members negotiated the Compromise of 1877, where Hayes agreed to end Reconstruction in the South and all twenty disputed votes were given to him, resulting in a Hayes win by one vote 185-184, or 50.14% of the vote.
1. 1824 – John Quincy Adams over Andrew Jackson. This election was so close, with no candidate (there were four) receiving a majority, that it was ultimately decided by the House of Representatives. Jackson actually had more Electoral votes 99-84, but he could not convince a majority in the House that he should win. Technically, with only 84 votes, Adams won garnering just 32.18% of the votes available.
Thank you for attending your daily civics/history lesson. Whoever you support this November, get out and vote.
By: Angelia Morie Nystrom Vice President for Advancement and Chief Legal Counsel East Tennessee Foundation
They say, “Everything old is new again.” And that’s true with this month’s Barrister Bites. For the past month, Hugh and I have been living in the Marriott Residence Inn downtown. We had a water leak in the connector for the ice maker in our refrigerator, which apparently dripped for several months. We noticed the problem when the hardwood floors in the kitchen and family room started to get wavy. When the plumbers removed our built-in refrigerator, we had a very large crop of mushrooms growing along the wall. Hugh, Spanky, Kitty, and I have been living in a hotel for around 4 weeks, which means I have not tried any new recipes. Actually, I’ve tried lots of new recipes, but I haven’t cooked a meal in weeks.
I did want to re-share some of my old favorites, so the following is a reprint of the article from DICTA in November 2019. It is one of the very first Barrister Bites columns, and I hope you enjoy it.
I love Fall. After what seemed to be an endless summer, Fall has finally arrived. And I could not be more pleased. I love everything about Fall: the crispness of the air, the smell of a fire burning in the fireplace, the changing leaves, and the clothes. But most of all, I love football. Especially Vol football. Win or lose, I am there… and I always stay until the band plays the Tennessee Waltz.
Hugh has always said that the whole of Knoxville rises and falls with UT football. His theory is that people are in a better mood when the Vols win. Restaurants are full. People are shopping in our local stores. Cash is flowing. The local economy is booming. Life is good. When the Vols lose, though, the mood of all of Knoxville changes. Until recently, mine did, too. I cried when the Vols beat Florida a couple of years ago. And I have cried when they have lost.
This year, though, I decided that, whether the Vols win or whether they lose, I was going to be happy. My plan was to embrace the season and all of the good things that it has to offer, but especially the tailgate. Whether the team wins or loses, the tailgate offers an opportunity for a really fun party. I saw this firsthand a few years ago at The Grove at Ole Miss. Whether the Rebels are winning or losing, the Ole Miss faithful know how to throw a proper party. I said at the time that Ole Miss always wins the tailgate. And I decided that this year, the tailgate could be my “win.”
While I’m really good with the décor, I’ve never been great with tailgate food. I’m a bit OCD with having food that matches the color scheme, so it’s been a challenge. Cheese puffs are easy. Other orange food are not. I also have a hard time making “small bites” that people can eat quickly. Much like the Vols, though, I have not been deterred.
Bacon-wrapped tater tots with a chipotle dipping sauce have been the clear winner this football season. To make them, get two large bags of frozen tater tots and two packages of bacon. Slice the bacon in half and then wrap the tots with the bacon and place on a baking sheet, crease side down. Bake at 450° until the bacon is done (about 25 minutes). For the sauce, mix ½ cup mayonnaise, ½ cup sour cream, 2 TBS brown sugar, 2 tsp red wine vinegar, 2 tsp dried oregano, 2 chipotle peppers in adobo sauce, and 2 TBS of the adobo sauce. Pulse in a food processor until smooth. Skewer the tots with toothpicks and serve with the sauce. I promise that they will not last long. They are yummy goodness on a
toothpick.
I’ve also become a fan of Bloody Mary chili. My sister found this recipe in the NASCAR cookbook a few years ago and has used it to win several chili cook-offs in Northern Virginia. She told me that it was fantastically easy, and it really is. To make the chili, brown 3 lbs of ground beef in a skillet over medium heat. When cooked completely, drain and set aside. Chop one large onion and one large green pepper. Cook in 2 Tbsp olive oil until soft (about 5 minutes). Combine ground beef, onion, and green pepper in a slow cooker. Add 2 Tbsp chili powder, 1 Tbsp cumin, 2 Tbsp red pepper, one 46-ounce bottle of Bloody Mary mix (I like Tom’s), one 15 oz can of red beans, one 15 oz can of kidney beans, and one 15 oz can of black beans. Bring to a boil, then reduce heat to a simmer for 2-3 hours. Garnish with sour cream and shredded cheddar cheese for a little orange and white. You can also add chopped scallions and/or my favorite…Frito’s.
My favorite Big Orange tailgate libation happened by accident. I’m not a fan or orange juice or orange sodas, so I had to get creative. I do love peaches, and I had a couple of bags of frozen peaches in the freezer. I combined the two bags of frozen peaches with a bottle of prosecco in the Vita Mix and then prepared on smoothie setting until it had a “smoothie” consistency. It is really easy – and really good.
I will usually get a pre-made cheese ball (Food City’s pineapple cheese ball is great), form it into the shape of a football, and then use chives to make “football laces.” It is really great with Sociables crackers. For something sweet, one-bit brownies from the deli section at the grocery store cannot be beat. Of course, I always welcome my friends to bring their own additions (and Trace always hopes that someone will bring chicken wings). If you ever come to our tailgate in G-10, he likes traditional wings with fire rub from Big Kahuna or wet wings from Calhoun’s.
To me, Fall is the best time of the year. It’s filled with all of the things I love: cool air, warm clothes, changing leaves, and Volunteer football. No matter what happens on the field, if we have been able to spend time each week with friends and share a meal, then I count it as a W. Happy Fall, y’all. And Go Vols.
By: Parker Bohne LMU
Kazoku Hibachi Express is more than just a food truck; it’s a dream realized by Abdul Kadir, a dedicated chef with over a decade of experience in the local restaurant industry. Kadir worked at Wasabi Japanese Steakhouse from 2004 until 2017 but always had a vision of running his own food truck. Every time he attended local festivals and events, he’d see food trucks lined up, serving fresh and exciting meals to crowds. He knew he would one day be a part of that culinary culture. At first, Kadir worked grueling hours simultaneously part-time at Wasabi and part-time with his business, but eventually made Kazoku a full-time venture, leaving the restaurant-life behind.
The early days of Kazoku Hibachi Express were long and hard. As a family-owned business, Kadir and his wife, who has supported his dream from the beginning, had to juggle everything themselves, balancing the demands of the food truck, family life, and other jobs until finally getting Kazoku’s wheels off the ground. For about six months, Kadir worked seven days a week without a break. This is often the reality of starting a business—working endless hours, not clocking out, and sacrificing personal time with family.
But Kadir’s perseverance has paid off. Today, Kazoku Hibachi Express is a thriving family-owned business with four trucks operating throughout Knoxville. Kazoku now has permanent trucks stationed at 4816 North Broadway, 7501 Middlebrook Pike, and 4908 Clinton Highway. The fourth truck travels to various locations across Knoxville, and you can find its schedule on its Facebook page or its website.
Kazoku Hibachi Express brings restaurant-quality hibachi straight to the streets of Knoxville. Whether you visit one of the stationary trucks or track down the roaming one, you’re sure to be greeted with a smile and the enticing aroma of fresh, fire-grilled hibachi cooking. The made-toorder hibachi is available at the window or can be ordered ahead for pickup or delivery, making it a convenient and delicious option for a quick meal. Bring your appetite when visiting Kazoku. You’ll want to be sure to start your meal with crispy eggrolls, tender chicken dumplings, or handbattered shrimp tempura. The real star of the show, though, is the hibachi itself. Kazoku serves authentic hibachi dishes like flavorful chicken, tender steak, or succulent shrimp--or a combination of your favorites (if you’re like me and can’t just choose one)—all served over fried rice, mixed vegetables, and tender, sweet carrots. If rice isn’t for you, the yakisoba noodles are a great substitute. Really, you can’t go wrong with any option. For family dinners, Kazoku also offers family meals, providing bulk combinations of favorite entrees and side dishes that are perfect for those
The menu at Kazoku Hibachi Express may be limited, but what it lacks in variety, it more than makes up for in quality. Every dish is prepared with care and skill, ensuring that customers enjoy a restaurantlevel experience in a fraction of the time. Kazoku’s presence across Knoxville means that whenever a craving strikes, you’re never too far from a satisfying, flame-kissed meal.
How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to membership@knoxbar.org.
As part of this year’s focus on celebrating our bar association’s diverse membership and exploring creative ways for members to connect, network, and experience fulfillment in the practice of law, we would like to highlight the accomplishments and contributions of KBA members who are making a difference in the legal arena and beyond. Send links to news to posts or articles, pictures, or just a blurb about what’s going on to membership@knoxbar.org.
Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates? Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource.
In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville
Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources.
Please note the following changes in your KBA Attorneys’ Directory and other office records:
Jared S. Garceau
BPR #: 033304
University of Tennessee
505 Summer Place –UT Tower #1155 Knoxville, TN 37902-2807
Ph: (865) 974-3245 jgarceau@tennessee.edu
Daniel R. Goodge
BPR #: 023647
Daniel Goodge Law & Mediation, PLLC
224 N. Main Street Clinton, TN 37716-3706 Ph: (865) 457-7900 dgoodge@dg-lm.com
Timothy N. Thompson
BPR #: 013440
Dobberstein Law Firm, LLC
225 S. Executive Drive, Suite 201 Brookfield, WI 53005-4257
Ph: (262) 641-3715 tnt@dlflaw.com
Andrew B. Tucker BPR #: 036230
Home Federal Bank of Tennessee 515 Market Street, Suite 500 Knoxville, TN 37902-2145 Ph: (865) 544-3995 atucke19@alum.utk.edu
THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS:
Ibrahim Mohamad Berro
Tennessee Valley Authority - Office of the General Counsel
James W. Friauf
Law Office of James W. Friauf, PLLC
David L. Morehous
Morehous Legal Group, PLLC
Nicole P. Novak
Office of the Chapter 13 Trustee
Jackson Amos
Nicholas D. Anon
Samantha M. Baker
Trenton E. Banks
Helen Boone
Michael Burdett
Kaitlynn Decker
Savannah O. Grant
Ziyan Jahangir
Allison A. Johnson
Aaliyah Kherani
Kennedy Kreger
Ella A. Lakins
Collin T. Maldonado
Adam D. Musgrove
Mireya C. Nystrom
Elizabeth Proffitt
Patrick Ragozzine
Sydney Ribelin
Samuel S. Savage
Estefania A. Urdaneta Bey
WELL READ
By: Natalie Miramontes-Tankersley Kramer Rayson, LLP
“Genres are a funny little concept.”1 That’s how Linda Martell starts her introduction to Beyonce’s song “Spaghetti” on her new album, Cowboy Carter. It’s a perfect introduction to a genre-bending song. Combining hip hop, rock, and country, the song is named after the famous Spaghetti Western movies, like The Good, The Bad, and The Ugly, which were all the rage in the 1960’s. Filmed in Italy or Spain, these traditional Westerns featured few American actors, instead using cheap European actors as side characters and dubbing over the actors who could not speak English. These cheaply made Western facades created their own genre of Western movies with barely any actual Western visuals or actors in them.2 The Spaghetti Western altered a genre. But as Martell observes, genres can be simple, but in reality, they tend to keep more people out of a genre than in.3
Beyonce’s experience in country music reflects this genre paradox. Starting in the girl group Destiny’s Child, many producers did not support the all-Black women group, in part, due to the group members’ southern and country roots. In fact, the only clothing brand willing to let the women model their clothes was Levi’s jeans (Beyonce titled a song “Levii’s Jeans” in her new album to show how grateful she is to Levi’s for their support in her early years).4 After going solo, Beyonce still faced backlash for her roots, most memorably at the Country Music Awards in Nashville, TN in 2016. She played a song from her album Lemonade titled “Daddy’s Lessons,” accompanied by The Chicks. Within seconds of her taking stage, a few audience members booed, and the reaction on social media was mixed with many supporters and many voicing their opposition.5 Some believed the CMAs intentionally removed its post of the performance from their social media, although the CMA’s claimed the removal was because the post was unauthorized and restored the post shortly thereafter.6
Her experience as a Black artist in country music is not unique. Music companies have had a strong grip on the definition of country music since the recording industry started.7 This is best illustrated in the production of the song “Hound Dog.” Written and recorded in 1952, the song was originally written for Willie Mae Thorton (a/k/a “Big Mama” Thorton) to perform. After Thornton recorded the song, it quickly rose to the #1 spot for Black rhythm and blues. Thornton sold around 500,000 copies of her recorded version. Soon, other artists started to record the original song and mix new versions of it, a common trend for popular songs at the time. These new versions were considered “responses” or “answers” to the original song. Using the same music, artists changed some of the lyrics to respond to Thornton’s accusations that “you ain’t nothing but a hound dog.”8
One such artist, Elvis Presley, took the song and rerecorded it, releasing it to screaming girls on live TV. His version sold over 2 million copies, providing Presley with substantially more revenue than Thornton’s did. Receiving a measly $500 check from Presley, Thornton saw almost none of the song’s royalties or fame. As a result, her producer and song writer, Johnny Otis, sued Presley’s music company for royalties.9 In Valjo Music Publishing Corp. v. Elvis Presley Music, Inc., 156. F. Supp. 568 (S.D.N.Y. 1957), Otis sued Presley’s writers claiming he helped write some of the verses for Presley. Otis appreciated the different versions of the song; however, he still considered the song his and Thornton’s, entitling them to some percentage of the royalties. The court disagreed. In 1952, Otis had signed a contract with Presley’s writers releasing the song to them for $750. Believing the writers to be minors, Otis did not think the contract was binding. The court disagreed and ruled in favor
of Presley’s writers. Additionally, the court viewed Presley’s version as a different, original song because of the call and response nature of the song.10 Afterwards, there was no question that “Hound Dog” was Presley’s song.11
After losing her song to Elvis Presley, Thornton continued to write and record music, even touring in Europe for a season. But her fame never reached the same heights as Presley. Passing away in the 1980s, she died penniless after a long and arduous career in music. Many Black artists at the time faced the same fate.12 Encouraged to sign away their songs for little money, very few Black artists from early country days have anything to show their hard work.13
But country music has not always been this way. In fact, its inception began with a mix of many cultures and musical genres. This profoundly American genre of music started in the late-1700s and 1800s with the increase in immigrants to the United States. As Irish and Scottish immigrants moved into the Appalachian Mountains, they brought their songs and music styles with them. In particular, they brought murder ballads and the fiddle. As more immigrants moved and migrated around the U.S., so did their music. Eventually, African slaves heard the Scots Irish tunes and combined the music style with their own instruments, including the banjo. Country music soon formed into its own genre, mixing work songs, ballads, and hymns. This early music discussed the struggles of life in America whether on the frontier or working as an enslaved person on a plantation. As America grew, the music followed out into the West, changing into Western style country combined with the tunes south of the border.14
By the 1920s, country music started to be broadcast around the U.S. Closely related to blues and jazz, country music recordings commonly included slave spirituals and work songs. The first country music stars like Johnny Cash and Pete Seeger were union supporting artists, writing about the daily struggles for Americans, whether they worked in mines or were imprisoned. Country music was reserved for poor, working-class Americans who supported unions and social programs.15 In fact, Republican Senator Kenneth Keating labeled country music in 1963 “an unidentified tool of Communist psychological or cybernetic warfare.”16 But this working-class image did not last. During the Nixon Administration years, President Nixon, struggling to gain traction with the working-class, began using country music artists to connect with middle-class Americans. Since then, the genre largely has been associated with an image initiated by Nixon’s political influence.17
Beyonce herself does not characterize Cowboy Carter as a “country album.”18 Instead, she calls it a “Beyonce’ album.”19 Notwithstanding, Cowboy Carter covers a wide range of country music’s history, combining gospel-like runs, storytelling lyrics, blues-inspired passages, and even an Italian aria as an homage to the Italian landscape and culture featured in Spaghetti Westerns. She drops some amazing rhymes as well, featuring her hip-hop abilities, a genre whose formation mimics much of country music’s history.
Most notably, the album is political. Her rendition of “Blackbird” by The Beatles is a beautiful tribute to the song and the Black women activists who inspired it. She includes several artists on the album who never actually sing but provide uplifting advice for her album, including “outlaw” Willie Nelson, who tells the listener if they don’t want to listen to the album to “go find a jukebox.” In the first song “American Requiem,” she sings of her own heritage as a southern girl and “the grand-
continued on page 31
By: Emily Cala Staff Attorney, Eviction Prevention Program
Legal Aid of East Tennessee
Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System
Every Tuesday morning, I hear the same thing from tenants, landlords, and sometimes even lawyers: if it weren’t for the transplants moving in from out of state, Knoxville wouldn’t be having a housing crisis. If any of these comments are directed toward me, they are usually coming from a tenant faced with an impending life-changing decision about their housing stability in court that morning. In this context, there is always a thought in the back of my mind – am I a part of the problem? As I speak to my clients with my strong midwestern accent, I find myself thinking, am I the reason a family has one less affordable housing opportunity in their hometown? Nonetheless, I am grateful that nobody has hurled that accusation at me yet in the three years that I have been practicing landlord-tenant law.
I am no expert on the housing market, but can you really blame anyone for moving to Knoxville? The (at one time) low cost of living, simple beauty, and southern charm is what drew me to become licensed in Tennessee. I have worked as an advocate for tenants at Legal Aid of East Tennessee since I became licensed in November 2021. I always knew that I wanted to advocate for the “underdog”—those who don’t have an equal shot at having their voices heard—but I did not take this job expecting that I would eventually become so impassioned by landlordtenant law.
Through my work, I quickly learned that housing stability is the backbone of all other types of stability in a person’s life. Without a stable, safe place to call “home,” a person has nowhere to store medication, which means their mental and physical health may go out the window. Without a stable home, there is nowhere to store perishable, healthy foods for their families, so a person’s physical health deteriorates while the risk for medical issues goes up. Without a stable home, there is nowhere for a person to receive mail, so benefits like SSI, SSDI, SNAP, and state health insurance are quickly lost, impacting both physical and mental health. Without a home, children no longer have a safe place to develop and grow, which prevents them from realizing their full potential in school, contributes to truancy, and increases the risk that they will enter the poverty to prison cycle at a very young age. These are only some of the issues that individuals face when facing housing instability. After learning just how important housing stability is, I truly cannot imagine doing anything else. If there is one way to make a big difference in somebody’s life, it is to ensure their housing stability. The rest will fall into place from there.
As you can imagine, creating housing stability is not solely on lawyers or the judicial system. Over the past three years, I have connected with countless community organizations, social service providers, and, of course, members of the bar. When you graduate from law school, you hear stories about how lawyers and judges treat new lawyers. It is intimidating, and it would be a lie to say that I wasn’t terrified of entering
this profession. I felt that I had a certain disadvantage being an “outsider” who did not grow up here or attend the University of Tennessee for my undergraduate degree or law school. I entered the local legal community with hesitation, unsure of what to expect. I felt very lucky to have a colleague by my side with whom I had clerked at Legal Aid of East Tennessee in law school to walk through the discomfort of being a brand-new lawyer (and he is a UT Law Alum!).
Very quickly, I learned that the Knoxville bar is nothing to be afraid of. The southern charm that drew me to Knoxville to begin with is genuinely mirrored through all the lawyers, judges, paralegals, court clerks, and the wonderful Knoxville Bar Association staff that I have been lucky enough to work with over the past three years. Though I may be an “outsider” or a “transplant” to some, I feel supported and uplifted by the legal professionals I am lucky enough to work with every day. I am grateful for this dichotomy, as it reminds me to be thankful for what I have and how lucky I am to be in a position to advocate for those who cannot advocate for themselves. I feel so thankful to be a part of this Bar, and I hope that you do, too.
In the spirit of giving, with the Thanksgiving holiday coming up, I want to share some opportunities to give back to the community through Legal Aid of East Tennessee’s Pro Bono Project.
With the devastation that has happened so close to home from Hurricane Helene, Legal Aid of East Tennessee has partnered with the Tennessee Alliance for Legal Services and FEMA to provide disaster relief to our service area in East Tennessee. We anticipate that this will be a long-term project, as individuals affected will be addressing their immediate needs before other legal issues. As our efforts unfold, we ask that those interested in volunteering for disaster relief support sign up on our website at www.laet.org
Legal Aid of East Tennessee invites you to CELEBRATE WITH US at our annual Pro Bono Night on Thursday, November 7th at 5:00PM at The Standard on Jackson Avenue. We will be celebrating the incredible attorneys, law firms, and community partners that do pro bono work, contribute to our mission, and make our community a better place. We will have awards, food, drinks, and live music for you to enjoy! You can purchase individual tickets or a table through our events page on our website. Special discounted rates are available for new attorneys and law students. Feel free to reach out to Caitlin Torney, our Director of Pro Bono, with any questions at ctorney@laet.org
Upcoming Clinic Opportunities: Please see the events section of our website, at www.laet.org to learn how attorneys and law students can get involved in upcoming clinics.
By: G. Turner Howard III Law Offices of G. Turner Howard III
In one word: Justice.
I was born with an inherent empathy for the underdog, for the underserved, for what Jesus calls “the least of these.” I hate to see people taken advantage of. It grates on me. Conjures up my grit. I seek justice.
For instance, though I engage in a plaintiff’s practice focusing on personal injury compensation, I receive my greatest satisfaction from assisting folks to experience justice through claims that do not yield attorney fees. Recently, a plumber friend of mine approached me about extensive work he had done, only to receive a bogus check for same. Every effort to encourage his customer to pay for his services was rebuffed. Through my letter to the customer and a follow-up phone call, his customer paid the plumber in full. Though only a simple pro bono matter, I felt greatly privileged and was overjoyed through his gratitude and his wife’s statement afterwards, “I wish I had gone to law school so I could help people like that also.”
I can think of no other vocation that more powerfully addresses societal ills than the legal profession. Consider To Kill a Mockingbird, wherein Atticus Finch takes on Deep South racism in the 1930s. His is a loss, but in losing he edges forward, in reverse Pyrrhic fashion, a powerful statement for equity. Consider Erin Brockovich who, though not a lawyer, works as a paralegal with her firm to expose and then cause an electric power company to compensate its victims through a class action suit for causing illness and death through ground water pollution. Then there’s the Dark Waters movie about attorney Robert Bilott’s vigilant fifteen-year class action pursuit against DuPont Chemical Company knowingly and secretly poisoning soil and water in West Virginia through its PFOA (Teflon) waste disposal, wreaking health havoc on Parkersburg’s residents. Check out Northwestern Law School’s Center on Wrongful Convictions, which fights for release of wrongfully convicted prisoners who serve time, life sentences for many, when everybody else has long forgotten them. The list goes on in America’s pursuit of its pledge to advance liberty and justice for all.
And none of that that would be possible in a country governed
WELL READ, continued from page 29
daughter of a moonshine man.” This song remarks on her Destiny’s Child years, when she was told she was too country for R&B and then told she wasn’t country enough when she sang at the CMAs with The Chicks. In her final song, “Amen,” she sings “the statues they made were beautiful, but they were lies of stone,” a note to the recent removal of Confederate statues around the U.S. If anything, Cowboy Carter is a requiem to how we acknowledge country currently, and a rebirth of its original story.20
1 Beyonce Knowles-Carter, “Spaghetti,” on Cowboy Carter (Parkwood Entertainment and Columbia Records 2024).
2 Cowboys and Cacciatore: The origin of the term “Spaghetti western.” Indiana University Bloomington. (2022, February 18). https://blogs.libraries.indiana.edu/ mediabeat/2022/02/18/cowboys-and-cacciatore-the-origin-of-the-term-spaghettiwestern/
3 Beyonce Knowles-Carter, supra n. 1.
4 Vaughns, V. Q. (2024, April 4). Beyoncé’s “Levi’s Jeans” is an ode to the brand that has always shown her love. EBONY. https://www.ebony.com/beyonces-leviis-jeansode-brand-levis/
by the rule of law without the able assistance of attorneys dedicated to making it happen. Like we as members of the Knoxville Bar Association do.
In 1872, the US Supreme Court determined in Bradwell v. Illinois1 that the practice of law is a privilege and not a mere right. As early as the 16th Century AD, law was deemed one of the three esteemed learned professions, along with theology and medicine. I am greatly humbled to be a member of an honorable, learned profession that further inspires me to properly represent our esteemed vocation in word and conduct. I endeavor to pursue excellence with humility in accordance with the Mission Statement I fashioned on the first day I opened my practice in May 2000: “To honor Christ by providing a safe haven for justice and service through the practice of law,” which is underscored by Biblical Amos’s “Let justice roll down like waters, and righteousness like an everflowing stream” (5:24). That statement is framed and displayed in every office of our law practice as a reminder that, no matter what, we will not deviate from its guiding light.
Trial law in particular is inherently adversarial. (I’ll always remember a statement a professor made my first day at UT Law School: “In the practice of law there are always at least two sides to every story, which is why we have lawsuits.”) Though adversarial, the practice of trial law is one of the few remaining civil means by which disputes can be resolved in an increasingly polarized society through Hegel’s dialectical process of thesis-antithesis-synthesis, with a judge or jury deciphering through application of law and fact a copacetic resolution. I am privileged to participate in a profession that helps maintain order in what otherwise would be a chaotic vortex.
Robert Frost concludes his poem Birches with these words: “One could do worse than be a swinger of birches.” We attorneys, in particular members of the collegial Knoxville Bar Association, could do worse than be practitioners of the law.
1 83 U.S. 130 (1873)
5 Cowboy Carter, I Saw Beyoncé Get Booed at the CMAs. I’ve Been Waiting for Cowboy Carter. MSN.com (2023), https://www.msnbc.com/opinion/msnbc-opinion/ saw-beyonce-get-booed-cmas-ve-waiting-cowboy-carter-rcna144981, last visited Oct. 10, 2024; Alex Abad Santos, Beyonce, the CMA’s and the fight over country music’s politics explained, Vox (Nov. 4, 2016, updated Mar. 19, 2024), https://www. vox.com/culture/2016/11/4/13521928/beyonce-cma-awards-controversy-deletedperformance, last visited Oct. 12, 2024.
6 Gina Mei, Don’t Worry, You can Still Watch Beyonce’s Performance at the CMA Awards, Cosmopolitan (Nov. 4, 2016), https://www.cosmopolitan.com/ entertainment/music/a8193586/beyonce-performance-cma-awards-not-removed/, last visited Oct. 12, 2024.
7 From the Vault: Big Mama Thornton and Hound Dog. AlabamaHeritage.com (n.d.), https://www.alabamaheritage.com/from-the-vault/big-mama-thornton-hound-dog
8 Id.
9 Id.
10 Valjo Music Publ’g Corp., 156 F. Supp. 568 (S.D.N.Y., Dec. 4, 1957).
11 National Recording Preservation Board, Hound Dog, Library of Congress (n.d.), https://www.loc.gov/static/programs/national-recording-preservation-board/ documents/HoundDog.pdf
12 Id.
13 Id.
14 Roots and Branches of Country Music, PBS (n.d.), https://www.pbs.org/kenburns/ country-music/roots-branches-of-country-music
15 Id.
16 The Arranged Marriage of Republicanism and Country Music, VirginiaPolitics.org (2021), https://virginiapolitics.org/online/2021/5/3/the-arranged-marriage-ofrepublicanism-and-country-music
17 Id.
18 Beyonce’, act ii, Cowboy Carter, Instagram Post (Mar. 19, 2024), available at https:// www.instagram.com/p/C4s6Zr7rlwA/, last visited Oct. 12, 2024.
19 Id.
20 Beyonce Knowles-Carter, Cowboy Carter (Parkwood Entertainment and Columbia Records 2024).
