September 2024 DICTA

Upcoming CLE Guide

Special Needs Planning and Advocacy

Tuesday, September 10, 12-1 p.m. | Webinar via Zoom

Bailey Schiermeyer, Elder Law of East Tennessee 1 hour of General CLE

News You Can Use-Workers’ Compensation Case Law, Statute, and Attorney’s Fee Update

Tuesday, September 17, 12-1 p.m. | Webinar via Zoom

Hon. Lisa A. Lowe, Court of Workers’ Compensation Claims, and Hon. Meredith B. Weaver, Workers’ Compensation Appeals Board

Presented by the KBA Employment Law Section 1 hour of General CLE

Legislative Breakfast & CLE

Wednesday, September 18, 8-9 a.m. | City Country Building, Small Assembly Room

Presented by the KBA Legislative Committee

30 minutes of General CLE

All members of the Knox County-based legislative delegation have been invited to attend this breakfast put on by the KBA Legislative Committee. The first 30 minutes will be a meet-and-greet with the delegation, followed by a half-hour CLE program focusing on recent legislative highlights and a forecast of things to come. Breakfast and CLE Credit are included in the registration fee.

Confirmed Attendees to Date: Sen. Richard Briggs, Rep. Michele Carringer, Sen. Becky Duncan Massey, Rep. Jason Zachary, Rep. Sam McKenzie, Lieutenant Governor Randy McNally, Rep. Dave Wright

Essential Law Office Technology - Key Technologies and Services

Thursday, September 26, 12-1 p.m. | Webinar via Zoom

Barron Henley, Esq., Affinity Consulting Sponsored by Image Matters Inc. | imagemattersinc.com 1 hour of Dual CLE

Wellness Conference 2024

Friday, September 27, 9-4:15 p.m.

City Country Building, Main & Small Assembly Rooms

9:00 am - 12:00 pm Free Flu Shots & Health Assessments and Vendors with Exciting Giveaways

11:30 am - 12:15 pm Free fun walk with Auther & Historian Jack Neely 1 - 4:15 pm CLE Sessions - 3 hours of credit

Officers of the Knoxville Bar Association

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

Charles S.J. Sharrett James

Dicta

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

All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Tasha Blakney (522-6522).

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

Tasha C. Blakney Executive Director

LRIS Assistant

Tammy Sharpe Director of CLE & Section Programming

Jonathan Guess Membership Coordinator

Bridgette Fly Programs

Communications Coordinator

Section Notices

There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 865-522-6522 or send an email to membership@knoxbar.org.

Alternative Dispute Resolution Section

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).

Bankruptcy Law Section

The Bankruptcy Section plans CLE programs and helps coordinate volunteers for the Pro Bono Debt Relief Clinics. Save the date for the “The Intersection (and Sometimes Collision) of the Bankruptcy Code and Domestic Relations Law” Bankruptcy Section CLE program scheduled for October 23. 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).

Corporate Counsel

The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs David Headrick (363-9181) or Marcia Kilby (362-1391).

Criminal Justice

The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. Save the date for the annual section CLE program “Criminal Law Rowdy Roundup” on November 5. If you have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (457-5640).

Employment Law

The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. Join the Employment Law section for the “News You Can Use - Workers’ Compensation Case Law, Statute, and Attorneys’ Fee Update” CLE webinar program scheduled for September 17. 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).

Environmental Law

The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. Join the Environmental Law section for the “Native American Graves Repatriation Act” CLE webinar program scheduled for October 3. If you have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (804-3741), Kendra Mansur (771-7192), or Jimmy Wright (637-3531).

Family Law Section

The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. Save the date for the annual CLE webinar program “TN Family Law Update” on December 10. 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).

Government & Public Service Lawyers Section

The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you are interested in getting involved or have suggestions for CLE topics, contact Section Chairs Ron Mills (215-2050) or Mitchell Panter (545-4167).

Juvenile Court & Child Justice Section

The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you have suggestions for CLE topics, please contact Section Chairs Justin Pruitt (215-6440) or Mike Stanuszek (766-4170).

New Lawyers Section

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).

Senior Section

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).

Solo Practitioner & Small Firm Section

The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. Join the Solo Practitioner & Small Firm section for the “Estate Planning 101: An Introduction and Overview” CLE webinar program scheduled for October 1. 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).

PRESIDENT’S MESSAGE

By: Carlos A. Yunsan University of Tennessee College of Law

LAWYER WELLBEING: A MATTER OF COMPETENCE

Just as the extinguishing of the Olympic flame brought the 2024 Olympics to an end, the hustle and bustle of our household’s “backto-school” schedule crashed the party. The peaceful days of summer camps, family vacations, music festivals, and—of course—watching as many Olympic events as possible (including those broadcasted in the wee hours!) was replaced with pedal-to-the-metal dashes to ballet, soccer, violin/viola—and that’s just the kids. Enter the season of board meetings, community presentations, evening receptions, and fundraising events. No, I’m not hyperventilating…really, I’m okay…Well? Maybe not.

Our personal and professional endeavors demand much from us. We often find ourselves pulled and stretched in numerous directions; sometimes for months or even years at a time. Some adjust and make changes. But some of us find out the hard way that taking care of ourselves is not optional or something we should put off. Indeed, in the long run, we can fulfill our responsibilities competently only by giving priority to our personal well-being.1

In March of last year, I received a wake-up call. I had begun to feel increasingly tired for two weeks before (finally) visiting the doctor. Tests revealed an uncommon autoimmune disorder. Long story short, I spent three full weeks confined to a bed for 95% of my waking hours—completely depleted of energy and strength—and lost about fifteen pounds. This is what it looked like: no work, no chauffeuring nor playing with the kids, no leaving the house, stuck and isolated, and full of uncertainty for the future. Thankfully, meds eventually helped me to reach my previous levels of energy and strength. Equally important, however, the experience gave me a chance to consider how I was operating, what I wanted to accomplish if things got better, and what I could do to improve my chances of getting there. It also became clear to me that when your physical health takes a hit, the support systems around you (family, community, workplace) are key to bridge the gap to recovery.

My “president’s message” this month is straightforward: lawyers must make their personal wellbeing as intentional as their professional pursuits. Why? Well (pun absolutely intended), wellbeing is integral to the latter. From the ethical perspective, our Rules of Professional Conduct require us to “provide competent representation” and “act with reasonable diligence and promptness in representing a client.”2 It should go without saying that lawyers facing physical, emotional, mental, and/or spiritual health challenges often find themselves neglecting client work, missing deadlines, and unable to appear in court. You have seen it among our colleagues and, perhaps, like me, you have been in the shoes of one literally unable to complete a task.3 To be clear, I am not looking down on lawyers finding themselves in that situation. I simply want to invite all of us to expand our perspective on lawyer wellbeing beyond the concerning statistics on alcohol abuse and depression and include a more robust and positive view of wellbeing as an essential component of professional

responsibility—one that might better allow us to thrive in service to our clients and in our personal lives for many, many years to come. This challenge is worth taking up, but it’s not an easy one. Anyone else tried to get into a regular physical activity routine lately? How about just getting a good night of sleep most (a few?) days of the week? I find changes—even the ones I sincerely want to pursue—overwhelming, so I tend to start with baby steps (you, however, need not limit yourself!). Three years ago, I started getting my yearly flu shot at the KBA’s Wellness Conference and Health Fair and participating in the historical downtown walk graciously led by journalist and historian Jack Neely. Both activities have become building blocks for my well-being as a lawyer in a physical, mental, occupational, social, and intellectual sense.

I am proud of the wholesome work of our Wellness Committee, under the energetic leadership of Beth Ford and Hannah Lowe. The committee not only organizes the wellness conference but also develops initiatives that push our viewpoint on lawyer wellbeing, including the financial wellness series offered last fall. I encourage you to invest in your and your colleagues’ wellbeing and participate in the committee’s initiatives, like the Tuesday evening group walk at Lakeshore Park (kids, spouses, friends, and definitely dogs are welcome). Better yet, join the committee and share your passion and expertise in any wellbeing facet. At the very least, join us at this year’s Wellness Conference on September 27 at the City-County Building.

Beyond opportunities sponsored by the Wellness Committee, the KBA offers a plethora of avenues to promote our wellbeing. For instance, the Senior Lawyers Section luncheon held in mid-August illustrates how lawyers can continue to support their colleagues. I urge you to follow the example of those who keenly understand the challenges of the profession and the importance of friendship and camaraderie in a long-lasting, fulfilling practice. Find your wellbeing jam and share it with others. I sure do need colleagues’ reminders to invest in my wellbeing when deadlines and piled-up desks try to persuade me it is not possible. I hope to be there to spur you on too. It’s a matter of competence.

1 Wellbeing in a holistic sense includes dimensions beyond mental and physical health, such as career, community, financial, and social wellbeing. See Ryan Pendell, Wellness vs. Wellbeing: What’s the Difference?, Gallup (March 22, 2021), https://www.gallup.com/workplace/340202/wellness-wellbeing-difference.aspx

2 Tenn. Sup. Ct. R. 8, RPC 1.1, 1.3.

3 Incidentally, or perhaps not, the American Bar Association (ABA) requires law schools to “provide substantial opportunities to students for . . . the development of a professional identity.” “The development of professional identity should involve an intentional exploration of the values, guiding principles, and well-being practices considered foundational to successful legal practice.” ABA’s 2024-2025 Standards and Rules of Procedure for Approval of Law Schools, Standard 303(b) & Interpretation 303-5, available at https://www.americanbar.org/content/dam/aba/ administrative/legal_education_and_admissions_to_the_bar/standards/20242025/2024-2025-standards-chapter-3.pdf.

AROUND THE BAR

By: Hannah Lowe and Beth Ford Co-Chairs, KBA Wellness Committee

KBA WELLNESS COMMITTEE UPDATE: TOP 10 WAYS TO TRY SOMETHING NEW TO BENEFIT YOUR WELLBEING

The legal profession is a challenging profession, and we are human beings, not robots. Our committee’s focus on wellbeing encompasses all aspects of our personal and professional lives, including physical and mental health, spiritual and emotional wellbeing, and financial and career fulfilment.

The statistics about attorney wellbeing are disheartening. Lawyers are at increased risk for chronic stress, anxiety, depression, substance abuse disorders, suicide risk, social alienation, work addiction, sleep deprivation, job dissatisfaction, work-life conflict.

See ABA Task Force Report on Lawyer Wellbeing, available at: https://www.americanbar.org/content/dam/aba/images/abanews/ ThePathToLawyerWellBeingReportRevFINAL.pdf. We want to change this. Our committee was created to open up and keep the conversation going about attorney wellbeing and to help us all find ways to improve our overall wellbeing, both personal and professional, individually and together. Our committee seeks to be a resource to our members so we can thrive in all aspects of our personal and professional lives.

The KBA has built on the momentum of the past two years to continue to promote our mission of a healthier bar. As co-chairs of the Wellness Committee, we were honored to receive the KBA President’s Award in December 2023, and we share it with all the hard-working committee members who have helped to make this committee a success in its first two years.

We encourage you to get involved with our committee. If you are interested in trying something new to benefit your overall wellbeing, here are our top 10 ways that you can do so:

1. Join the committee. This year, we have continued with three sub-committees: (1) Wellness Conference and Educational Planning, which plans the annual wellness conference and this annual DICTA Wellness Committee takeover; (2) Practicing Wellness, which plans the annual tennis and pickleball tournament and other activities to support our physical and mental wellbeing, including our annual Healthy Bar Challenge; and (3) Financial Wellness, which puts together programming to address the various financial challenges faced by lawyers in the various stages of our careers, from new lawyers to mid-career and into retirement and succession planning. If you have an interest in one of these areas, we would love for you to join us!

2. Read a wellness tip in the weekly email blast. We have put together a bank of resources that the KBA includes in the weekly Friday emails.

3. Submit a wellness tip for the weekly email blast. If you have a resource that has worked for you to help your physical, mental, financial/career wellbeing, please share it with us so we can share it with our members!

4. Take a walk. We meet weekly on Tuesdays at 6 PM and Fridays at 7 AM to walk at Lakeshore Park. Meet us beside the bench at the top parking lot after entering the park from Lyons View. We also plan group hikes and join in with the Professionalism Committee’s annual fall hikes. In June 2024, members and friends—

and their dogs!—had fun exploring the trails at Baker Creek Preserve in South Knoxville, followed by lunch at 71 South.

5. Join the Healthy Bar Challenge, October 1–31, 2024. We launched this last year and will continue it again this year in October. Members will keep track of time spent engaging in activities to benefit their physical, mental, and financial wellbeing. We learned a lot from the inaugural year and are implementing the following changes:

• A simplified, more user-friendly tracking sheet:

o While we will still collect “time” data, we’ve dropped the detailed itemized list and will instead just ask for physical wellness time, mental wellness time, and financial wellness time. We’ll include examples of each category in our marketing materials, but the tracking sheet will be more user friendly.

o Note: We will still have bonus point categories for attending Wellness Committee sponsored events and the First Horizon Financial Wellness checkup.

o We are moving to 15-minute time intervals instead of 6 minutes.

• Better opportunity to win weekly prizes:

o Instead of a weekly leaderboard (where only the top 3 males/females were considered for the prize), we will have a weekly challenge (Example: Get out of your comfort zone and try a new activity).

o Anyone who completes that week’s challenge and reports their participation will be entered into a drawing for that week’s prize.

• Broader recognition in the overall awards. We really want to encourage team participation this year. Join up with your friends (teams of 3–4), get together for a group activity, and keep one another accountable.

6. Check up on your finances. Our Financial Wellness Subcommittee is working on more programming in the fall, tailored to different stages in your career:

o Alicia Teubert will be presenting “Where to Save Your Money” on October 9, 2024, at the Hilton Firefly after the Barrister’s meeting concludes (meeting begins at 5 PM). The focus will be on the types of accounts and their attributes that individuals can use for savings/investing. All KBA members are invited (you do not have to be a Barrister).

o The middle career event with a working title of “Retirement Account Options for Solos and Law Firms” is still in the works. The current plan is to focus on small business retirement accounts/attributes/limitations. It will likely be a panel discussion presented via Zoom. Date TBD.

o Our “Thinking about Retirement” event will focus on (i) the timing and options regarding social security and (ii) continued on page 15

PRACTICE TIPS

By: Grant Lewallen Arnett | Baker

WHAT TO DO WHEN YOU CAN’T FILE UNDER SEAL

For the majority of my legal career, it has been relatively easy to protect confidential information connected with litigation, both by mutually agreed upon protective orders and with motions to seal documents entered by the courts. With respect to documents produced during discovery, parties will typically agree on language in a protective order detailing what constitutes “confidential” documents during the discovery process and what steps will be taken to keep confidential documents protected in the event they are produced to opposing counsel and filed with the court.

When it comes to keeping personal and financial information confidential in a court filing, such as a minor settlement approval, my experience had been that the parties would file a joint motion to seal confidential documents, with the Court approving the motion based upon a broad showing that the litigants were private parties, that there was no matter of public concern involved in the lawsuit, and that harm would result in subjecting private litigants—most often a minor child—to potential contact from third parties, such as predatory lending companies, seeking to take advantage of settlement proceeds.

This landscape has shifted with the recent appellate opinion of In re: Estate of Thompson, 636 S.W.3d 1 (Tenn. Ct. App. 2021). This case involved a family dispute over the estates of two decedents. Three children obtained a court order sealing the records from both estates, citing as justification that “information relating to the Decedents’ financial interests and their trusts and estates constitute matters of no legitimate public interest and the Parties’ right to privacy…is appropriately protected by [the trial court].” Id. at 4. This prompted other family members contesting disbursements of the Trusts to file petitions to unseal the records. The Knox County Chancery Court denied the petitions and left the documents sealed. The Court of Appeals held that the trial court abused its discretion.

As a basis for its ruling, the Court of Appeals reiterated that “[t]he presumption of openness regarding [public court] records is ‘strong,’ and ‘may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” Id. at 20. The Court also held that “the ‘compelling interest’ standard demands more than broad, vague allusions to general privacy interests or potential harm.” Id. at 23.

So where does this leave litigants who seek to protect confidential and private information from potential prying eyes? There are two primary subsets of documents that could come into play in attempts to keep confidential and private information from public inspection: 1) discovery documents produced during litigation, and 2) pleadings, court orders, settlement documents, and attached exhibits that contain private information connected with the litigation.

With respect to discovery documents, the parties can still submit a protective order pursuant to Tenn. R. Civ. P. 26.03 delineating how the parties will deal with the confidential nature of documents and discovery throughout the lawsuit and providing the procedure to be taken when a party seeks to submit any such confidential discovery to the Court. An additional provision may be needed to address the process when a party who did not produce confidential information seeks to file such information and make it part of the public court record, instead of summarily filing it under seal—since the court will need a “compelling interest” to maintain a filing under seal. The language of this provision should include notice and an opportunity for the producing

party to move for a court order requiring the documents be filed under seal. Absent such a motion from the producing party, the documents ultimately filed as part of the public court record would no longer be characterized as confidential under the protective order.

The second, more difficult area to navigate, involves documents filed in support of a minor settlement that are necessary for court approval as required by Tenn. Code Ann. § 29-34-105. In this situation, the old practice of filing a motion to seal the petition and order granting the minor settlement with a generic order of compromise and dismissal is no longer acceptable. The only situation in which the prior practice would still work is when there is a specific showing of compelling reasons to seal a document above and beyond the typical justification of keeping personal and financial information private. Id. at 20 (“The presumption of openness regarding these records is ‘strong[,] and ‘may be overcome only be an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’”)

Based upon this new legal landscape, I advise attempting the following steps:

1) Do not file a motion to seal any settlement documents—it will not be granted;

2) Prepare a petition for minor settlement approval with general information about how proceeds will be distributed and used for the benefit of the minor but without specific details as to monetary amounts;

3) Prepare necessary detailed documentation supporting the minor settlement to be submitted informally for the Court’s review—this will not be officially filed with the Court;

4) Present necessary documentation to the Court in advance of the hearing or at the hearing, but do not file the documentation with the Court—do not make it a part of the public court record;

5) Move to have the hearing held in chambers if the Court is amenable to such a request;

6) Attend the hearing for minor settlement approval with all necessary information and witnesses for the Court to examine and make the requisite finding to approve the minor settlement; and

7) Prepare an Order approving the minor settlement with necessary language to satisfy Tenn. Code Ann. § 29-34105 that the Court approved the minor settlement based upon the requisite information reviewed during the hearing and approved distribution of the settlement proceeds, but leave private and financial details out of the order This new procedure should accomplish the objective of maintaining a degree of confidentiality for litigants’ sensitive personal and financial information while preserving the openness and public access to the courts.

LEGAL UPDATE

By: David D. Ayliffe and Regina Koho

Tennessee Valley Authority Office of the General Counsel

SCOTUS REVIEW AND PREVIEW

Review—End of 2023–24 Term Brings Major Changes to Administrative Law

As foreshadowed in the April issue, the demise of the “Chevron doctrine” arrived in June when the Supreme Court decided Loper Bright Enterprise v. Raimondo, 1 overruling its landmark decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.2 Days later, the Court further reshaped federal administrative law in Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., holding that an Administrative Procedure Act (“APA”) claim does not accrue for statute of limitations purposes until the plaintiff is injured by final agency action.3

Chevron overruled

Under Chevron, courts applied a two-step framework when interpreting statutes administered by federal agencies,4 which sometimes required deferring to permissible agency interpretations of statutory ambiguity.5 And although often criticized, the Chevron doctrine had been a salient feature of administrative law for the last forty years.6

No longer. Loper Bright7 rejected the Chevron doctrine as a “fundamentally misguided” judicial invention that required judges to disregard their core constitutional duty—“to say what the law is,”8 and Congress enshrined this duty in the text of the APA, the statute which authorizes judicial review of agency action (which Chevron ignored).9 The Court also refused to retain Chevron on stare decisis grounds, criticizing its framework as unworkable and its many exceptions as a “dizzying breakdance.”10

Loper Bright held that courts must exercise independent judgment in deciding whether an agency has acted within its statutory authority and may not defer to an agency interpretation simply because a statute is ambiguous.11 The Court recognized, however, that exercising independent judgment does not preclude “due respect for the views of the Executive Branch,” that courts may seek guidance from the administering agency’s statutory interpretations, and that if the other branches disagree with the courts’ statutory interpretation, they are free to revise the statute.12

Extending the limitations period for APA actions

Corner Post involved a challenge to a Federal Reserve Board regulation establishing interchange fees for debit card transactions. In 2010, Congress authorized the Board to set standards for interchange transaction fees, and in 2011, the Board promulgated implementing regulations.13

But the Corner Post truck stop did not exist until 2018—more than six years after the regulation was issued. Corner Post joined a lawsuit against the Board challenging the regulation as unlawful under the statute. The district court dismissed the claim as untimely under the statute of limitations, which provides that “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.”14 The Eighth Circuit affirmed, joining five other Circuits holding that the limitations period commences on the date of final agency action (e.g., when the rule was promulgated) regardless of when the plaintiff was injured. The Supreme Court granted certiorari to resolve the circuit split over when the APA’s six-year statute of limitations begins to run.15

Corner Post held that a right of action accrues when a plaintiff has the right to file suit and obtain relief, and because a plaintiff suing under the APA does not have a complete and present cause of action until suffering an injury from final agency action, the statute of limitations does not begin to run until the plaintiff is injured. Because Corner Post filed suit with six years of its injury, its claim was timely.16

Preview—Hot-Button Issues for 2024–25 Term

Ghost guns

“Ghost guns” are “firearms without serial numbers” that are assembled from parts, “often purchased in a kit.”17 Due to an increase in crimes involving these guns, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) sought to regulate them under the Gun Control Act of 1968 (“GCA”).18

The GCA defines a “firearm” as “any weapon . . . which will . . . or may readily be converted to expel a projectile by the action of an explosive” or “the frame or receiver of any such weapon.”19 “Frame” and “receiver” are undefined,20 but ATF previously defined them as “part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.”21

The 2022 rule updated these terms’ definitions.22 “[F]rame or receiver” was updated to include “a partially complete, disassembled, or nonfunctional frame or receiver, including a frame or receiver parts kit, that is designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver.”23 “Firearm” also included a “weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by action of an explosive.”24

The Fifth Circuit held that the rule exceeded ATF’s statutory authority, finding that the “frame or receiver” definition was inconsistent with how those terms were understood when the GCA was enacted and with ATF’s past interpretations.25 It also determined that Congress took away ATF’s ability to regulate firearm “parts” because the GCA deleted the previous statute’s language “authoriz[ing] regulation of ‘any part or parts of’ a firearm.”26

In the Biden administration’s view, this decision will “lead to a flood of untraceable ghost guns” that will thwart law-enforcement efforts to curb violent crime.27 The Court granted certiorari,28 and argument is scheduled for October 8.

Transgender rights

In June, “the justices waded once again into the culture wars” by granting certiorari in a case addressing whether Tennessee may prohibit certain gender-affirming care for transgender minors.29

Tennessee’s statute prohibits certain gender-affirming care (e.g., puberty blockers, hormone treatments) for patients under 18.30 The act is purportedly concerned with “protect[ing] minors from physical and emotional harm”31 because “the long-term harms of these treatments . . . remain unknown,” they “are experimental in nature,” and because “nonirreversible treatments” are available.32

Transgender minors and their parents filed suit,33 which the Biden administration joined under a law allowing government intervention in certain cases alleging equal-protection violations.34 The district court preliminarily enjoined the statute, finding that plaintiffs would likely succeed on their due-process claim because the statute interfered with a parent’s right to direct their child’s medical care.35 The court also found a likely equal-protection violation because the statute prohibits procedures for transgender minors that are allowed for others.36

In a 2-1 decision, the Sixth Circuit reversed, finding that governments “have long played a critical role in regulating”37 medical treatments, particularly for minors, and that a parent’s right to direct a child’s medical care could not override Tennessee’s decision to “reasonably ban[]” certain treatment.38 The majority also found that heightened review

continued on page 22

HOW TO THRIVE IN LAW & LIFE

By: Emily Heird, LPC/MHSP Vantage View Coaching

HOW TO CULTIVATE MORE AWE

My seven-year-old daughter has a radar for bugs. We can be walking along, and she will suddenly stop and exclaim, “Oh my gosh, look at this cute spider!” I, myself, am wondering how she even spotted said tiny spider! She can spot the tiniest of creatures while moving quickly. She will stand and marvel at the spider, its colors, observe what’s happening in the web, and express “awws” usually reserved for more cute and fluffy animals. Whether it’s spiders or bringing cicadas, moths, and katydids into our house, she has always loved bugs. Or let’s be honest, she loves all creatures, great and small. They usually love her back, too. Through animals and nature, she experiences awe on a regular basis.

What does this have to do with attorney wellbeing, you ask? In the fast-paced, high-pressure world of law, emotions often take a backseat to logic and reason. Yet, emerging research suggests that one emotion, in particular, can be a powerful tool for lawyers: awe. Far from being a frivolous indulgence, awe can enhance cognitive function, reduce stress, and boost creativity—all essential qualities for legal practice.

The Science of Awe

Awe is a complex emotion characterized by a sense of wonder, vastness, and humility. When we experience awe, our brains undergo a shift, focusing on the bigger picture rather than immediate concerns. This shift has profound implications for our well-being and cognitive function.

• Stress Reduction: A study published in the journal Emotion found that individuals who reported experiencing awe more frequently had lower levels of cortisol, the stress hormone. This suggests that awe can serve as a powerful antidote to the chronic stress often associated with the legal profession.

• Increased Well-being: Research has shown that awe can boost overall well-being. A study in the Journal of Positive Psychology found that participants who were induced to feel awe reported greater life satisfaction and a stronger sense of purpose.

• Enhanced Creativity: Awe has been linked to increased divergent thinking, a cognitive process associated with generating a variety of ideas and solutions. This is a critical skill for lawyers facing complex legal challenges. A study published in Psychological Science found that participants who watched a video that induced awe performed better on creativity tests than those who watched a neutral video.

• Improved Decision Making: Awe can help us make better decisions by expanding our perspective and reducing our reliance on stereotypes. A study in the Journal of Experimental Social Psychology found that participants who experienced awe were less likely to rely on stereotypes when making judgments.

Cultivating Awe in the Legal Profession

While the legal profession can be demanding, there are opportunities to cultivate awe within this challenging field. Here are some practical strategies:

• Mindfulness and Gratitude: Incorporating mindfulness and gratitude practices into your daily routine can help you cultivate a sense of wonder and appreciation for the present moment. Even brief moments of mindfulness can have a significant impact. Studies have shown that gratitude journaling can increase feelings of awe and well-being.

• Connect with Nature: Spending time in nature is a powerful way to experience awe. Research has consistently shown that

exposure to natural environments can reduce stress, improve mood, and increase feelings of awe. Take a walk during the workday. Catch the sunrise, the sunset, or gaze at the stars and moon after a long day.

• Engage in Creative Pursuits: Engaging in creative activities, such as painting, writing, or music, can spark a sense of awe and wonder. Viewing art, fully listening to music, or reading books are also ways to engage with creativity. These activities can also help you mentally disconnect from work, relax, and recharge.

• Seek Out Inspiring Experiences: Attend inspiring talks, concerts, performances, or exhibits. Surrounding yourself with inspiring people and ideas can help you cultivate a sense of wonder and possibility. Watching others achieve incredible feats can evoke awe.

• Read Awe-Inspiring Stories: Research shows that reading about other people’s inspiring experiences can help you feel awe and improve your well-being.

• Volunteer: Giving back to the community can be a powerful way to experience awe. Helping others can put your own problems into perspective and foster a sense of connection to something larger than yourself.

Awe and Legal Practice

Experiencing awe can have a direct impact on legal practice. For example:

• Improved Client Relationships: Awe can foster empathy and compassion, which are essential for building strong client relationships. By understanding the broader impact of a legal issue on a client’s life, lawyers can provide more effective representation.

• Enhanced Negotiation Skills: Awe can help lawyers approach negotiations with a more open mind, leading to more creative and collaborative solutions. By seeing the situation from the other party’s perspective, lawyers can build rapport and increase the likelihood of a successful outcome.

• Increased Resilience: Awe can help lawyers cope with the inevitable challenges and setbacks of legal practice. By maintaining a sense of perspective, lawyers can bounce back from adversity more quickly and effectively.

It is easy to get caught up in the hustle and bustle of life, the to-do list, the demands of work (especially in the grueling legal profession), and the need to be productive. I am guilty of this myself. On a recent hike with my daughter, I was feeling that pressure. She was crouched down and looking at a mushroom. I was rushing her to keep walking. Her response was to not give into my rush but to challenge it. She said, “I’m just adoring nature.” This was my cue to question why I was rushing (to get back to what—chores?) and to be present. After all, this is what I intentionally cultivated and taught her to do: to be amazed by the world. Slowing down and being present – this is perhaps the most challenging part. By making a conscious effort to cultivate awe, you can enhance your ability to handle stress, solve complex problems, and build stronger relationships with clients and colleagues. Remember, even small steps can make a big difference.

“Always be on the lookout for the presence of wonder.” – E.B. White

LEGAL MYTHBREAKERS

By: Brad Fraser

Leitner Williams Dooley Napolitan, PLLC

Stefanie Bowen

Leitner Williams Dooley Napolitan, PLLC

DO IT AGAIN

“Do It Again”1 is a 1972 song by Steely Dan with great guitar and organ solos and some lyrics about people with some possibly addictive behaviors:

But the hangman isn’t hangin’ and they put you on the street

You go back, Jack, do it again, wheel turnin’ ‘round and ‘round

You go back, Jack, do it again

However, it may not be necessary to “Do It Again” in a civil proceeding if the judge did not perform his or her function as the thirteenth juror. Our Tennessee Supreme Court recently held in Family Trust Services, LLC v. Green Wise Homes, LLC, 2 that in some circumstances, there may be no need to go “back, Jack, and do it again.”

In Tennessee, a judge presiding over a jury trial sits not only as judge, but also as the “thirteenth juror,” independently reviewing and weighing evidence at trial.3 Trial court judges dissatisfied with a jury’s verdict or the weight given to the evidence must order a new trial (with a new trial court judge).4 In fact, a verdict is not valid unless approved by the trial judge acting as the thirteenth juror. The judge cannot defer to the jury’s decision; an independent judgment is required.5 A judge must be satisfied with the verdict, just as a jury is. It is the duty of the judge to weigh the evidence independently, regardless of the weight assigned by the jury.

The rationale behind this rule is that the trial judge, having heard the testimony and observed the witnesses and their demeanors, is in a unique position to correct any errors made by the jury due to inexperience.6 The judge’s training and experience in weighing testimony and applying legal rules make them especially qualified to ensure that the verdict is sound in law and justice.

When a trial court judge upholds a jury’s verdict with no reference to dissatisfaction or disagreement, the appellate court presumes the judge fulfilled the role of the thirteenth juror and the verdict stands. But what happens if a trial court judge expresses discontent with the verdict or the weight of the evidence?

Until last month, the remedy was to go “back, Jack, do it again” with a new trial. In fact, until July 2024, the Supreme Court of Tennessee opined that a remand for new trial was the necessary and only remedy when a trial court had not fulfilled its role as thirteenth juror.

Now, after Family Trust Services, a new trial is not the only remedy.7 Instead, remand to the trial court to determine whether it is able to fulfill the role of thirteenth juror is an available remedy when a civil trial court misconceives its role as thirteenth juror or applies an incorrect standard. A new trial may not necessarily follow.8

The Court framed its opinion and stated the new rule in the context of the rule’s common law origins. Initially, appellate courts in Tennessee remanded for a new trial only when a trial court clearly disagreed with the jury’s verdict.9 A milquetoast reaction to the sufficiency of the evidence, but one that ultimately agreed with the verdict, garnered no order of a new trial. But when a trial court clearly disagreed with the verdict but ordered no new trial, the appellate court’s remedy was to remand back to the trial court level for a new proceeding. This remedy was appropriate because the appellate court was merely doing what the trial court should have done—grant a new trial.10

The first time the Supreme Court considered a remedy other than a new trial on remand was in a criminal case. In State v. Moats, both parties agreed the trial court failed to fulfill the role of thirteenth juror. 11 But the State asked that the case be remanded to the trial court judge to fulfill its role as thirteenth juror in lieu of a new trial. After consideration, the Court found that it was impractical to order such a

remedy due to the passage of time. “By [the time of remand], the trial judge is unlikely to have an independent recollection of the demeanor and credibility of all the witnesses.”12 This reasoning reflected the most important function of the thirteenth juror—that of assessing the “human atmosphere” of the trial forum and evaluating the weight of the evidence presented “live and in person.”13

As stated plainly in Rule 59.06, a remand for a new trial precludes the presiding trial court judge from presiding over the new proceeding. But successor judges can fulfill the role of thirteenth juror when the original trial court judge becomes incapacitated during trial or post-trial proceedings.14 Still, a successor judge who does not see or hear witnesses is at a significant disadvantage to serve as a thirteenth juror, specifically in cases where credibility is important. For this reason, in Overton v. Lowe, the Tennessee Court of Appeals held that a successor judge in that position “ought to order a new trial.”15

Despite this theory, however, some criminal cases have allowed a successor judge to function as a thirteenth juror when they are able to read a transcript and ascertain witness credibility sufficiently.16 As the Court noted in Family Trust Services, a transcript can reveal “reputation for truth and veracity; intelligence; respectability; interest in the outcome of the trial . . . bias or lack thereof” and more.17 Only witness demeanor cannot be ascertained through reading the transcript.18

With this history in mind, the Supreme Court reasoned in Family Trust Services that if a successor judge may serve as a thirteenth juror without hearing or seeing witness testimony live, then certainly a trial court judge who sat over the original proceeding ought to be able to determine whether they can fulfill the role themselves on remand, especially in civil cases where property rights, not life or liberty, are on the line.19

Now, in Tennessee, civil trial courts have discretion to determine whether they are able to fulfill the role of thirteenth juror. The judge must have sufficient independent recollection of the trial, witness demeanor, and credibility. If the trial court cannot fulfill its role as thirteenth juror, it must order a new trial. But if the judge has sufficient recollection and is able to do so, there no need to go back, Jack, and have the trial all over again.20

1 Steely Dan, Do It agaIn (ABC Records 1972).

2 No. M2021-01350-SC-R11-CV, 2024 Tenn. LEXIS 284 (July 10, 2024).

3 Holden v. Rannick, 682 S.W.2d 903, 904-05 (Tenn. 1984).

4 Tenn. R. Civ. P. 59.06.

5 Family Trust Servs., 2024 Tenn. LEXIS 284 at *20.

6 Cumberland Telephone & Telegraph Co. v. Smithwick, 79 S.W. 803 (Tenn. 1904).

7 See Family Trust Servs., 2024 Tenn. LEXIS 284 at *33-35.

8 Id.

9 Id. at *21 (citing Tate v. Gray’s Lessee, 36 Tenn. (4 Sneed), 591, 595 (1857)).

10 Id.

11 906 S.W.2d 431, 433-34 (Tenn. 1995).

12 Id. at 435.

13 Family Trust Servs., 2024 Tenn. LEXIS 284 at *25-26 (quoting Moats).

14 Overton v. Lowe, No. E2007-00843-COA-R3-CV, 2009 Tenn. App. LEXIS 403, at *7 (Tenn. Ct. App. June 30, 2009).

15 Id.

16 Family Trust Servs., 2024 Tenn. LEXIS 284 at *29-30 (citing State v. Ellis, 453 S.W.3d 889, 902-3 (Tenn. 2015) and State v. Bilbrey, 858 S.W.2d 911, 915 (Tipton, J. concurring)).

17 Family Trust Servs., 2024 Tenn. LEXIS 284 at *29.

18 Id. at *29-30.

19 Id. at *30-31.

20 The decision in Family Trust Services does not overrule Moats’ application in criminal cases. The decision is limited to civil matters in Tennessee.

WHAT I LEARNED ABOUT INCLUSION AND WHY IT MATTERS

By: Magistrate Robin P. Gunn Knox County Juvenile Court

INTENTIONALLY INCLUSIVE

Imagine a Monday morning, being in a courtroom full of attorneys who are talking and chatting about how they spent their weekend, but no one seems at all interested in how you spent your weekend or even seems to notice you are there.

Now think about one of the times you first learned about a professional or social event that would have been wonderful to attend, or when you saw photos on social media of people you see practically every day enjoying themselves at a gathering. You find yourself thinking, “how did I not know about this!?!”

What about the time that someone casually mentions the GroupMe or a giant group text that’s been going on for months that they presumed you were on, but you had no idea it even existed?

It stinks, right? Not because anyone intended to exclude you from a conversation, an event, or a group communication, but because of missed opportunity to engage in a valuable way.

For many of our legal community members, especially the minorities, and even more so for the newer members, the reality of entering the legal practice can be a rather lonely one. This has been exacerbated by the COVID pandemic, as more professionals have been working remotely and/or spending less time in the office. Because opportunities to gather have become less frequent, missing the opportunity to connect with your colleagues is a much greater loss.

Exclusion is rarely intentional or personal. In fact, exclusion is typically very impersonal in that it happens without a thought for the individuals who may be affected by the action. This is actually a good thing because it makes it so much easier to correct. With just a touch of mindfulness, you can make a tremendous difference within not just the legal community, but within all the communities and spaces you impact.

When you are creating informal groups, such as a GroupMe, group email, or group text, and you get to the place where you ask yourself, “Who am I forgetting?” go one step further and ask yourself, “Did I remember to include the ethnically diverse people who this communication applies to?” When you receive informal communications, especially those communications that encourage you to either pass the information along or add whomever the creator forgot to include, take it a step further and scan the list for your diverse member’s names, and if they are missing, plug them in.

Resist the inclination to presume that someone is aware of an event or opportunity, particularly when engaging with anyone in an underrepresented population. Instead, ask them whether they are aware, and encourage them to participate.

Similarly, resist any presumption that someone is not interested in an activity based on any preconceived notions about them. You’d be surprised who may be into hiking, pickleball, or going to the opera. Language is a powerful tool that can either include or exclude. Using inclusive language means choosing words that respect and affirm the diverse identities of those around you. This involves being mindful of gender-neutral language (such as using “everyone” or “folks,” instead of “guys”), avoiding stereotypes, and respecting people’s preferred pronouns and names.

Whether at home, work, or in the community, creating inclusive spaces involves designing environments that are accessible and welcoming to all. This can be as simple as ensuring that your physical space is accessible to people with disabilities by providing ramps, elevators, and clear signage. It can also involve creating quiet areas for those who need them, offering diverse food options that cater to different dietary needs, and ensuring that cultural and religious practices are respected.

In digital spaces, inclusivity can be fostered by providing closed captions for videos, using accessible website design, and ensuring that online meetings and events accommodate different time zones and communication preferences. Inclusivity in spaces also means being mindful of how social dynamics play out—ensuring that everyone has an opportunity to participate and that no one feels left out or marginalized.

Being inclusive is about more than just good intentions; it’s about taking deliberate actions that create environments where everyone can thrive. By being more mindful, you can contribute to a more inclusive world. Inclusivity is an ongoing journey that requires continuous reflection, learning, and advocacy. Through small, everyday actions, we can all play a role in building a more inclusive society.

THE OATH

By: Melissa B. Carrasco Carrasco Trump, PLLC

UNDER GREAT PRESSURE

“No person shall practice as an attorney or counsel in any of the courts of this State without a license obtained for that purpose, and without first having taken an oath, in open court, to support the constitution of the state and of the United States, and to truly and honestly demean himself in the practice of his profession to the best of his skills and abilities.”1

Dick Latta Lansden was born in White County, Tennessee in the tiny community of Baker’s Cross Roads.2 He started his career in education, but after a few years, pivoted to the legal profession, studying the law under the careful tutelage of the Firm of Snodgrass and Smith.3 By the time he was 33, he was Chancellor of the Fourth Judicial Division, and he was appointed to the Tennessee Supreme Court when he was 41.4 Within a few years, he and the rest of the Court were faced with the conundrum of Mr. F.E. Bowers.5

Mr. Bowers wanted to be an attorney. He graduated from law school. He passed the examination of the Tennessee State Board of Examiners, which was the precursor to the Bar Exam. He complied with all of the Board’s rules. The Board certified to the Tennessee Supreme Court that he was a person of good moral character and was entitled to receive a license to practice law in the State of Tennessee.6

The Tennessee Supreme Court signed his law license.7 The next step should have been the administration of the oath, the delivery of his law license, and the start of Mr. Bowers’ legal career.8 But, what happened next was a petition filed by the Nashville Law & Library Association in the Tennessee Supreme Court asking the Court to refrain from issuing a law license to Mr. Bowers.9 Why?

A few years earlier, he worked out a deal in which he was hired by an attorney to solicit plaintiffs to bring lawsuits in exchange for a portion of the fee from the lawsuit. When other attorneys informed him that this practice was illegal,10 Mr. Bowers created a “power of attorney” form that he would have the prospective plaintiff sign, assigning the person’s claims to Mr. Bowers, and then Mr. Bowers would hire the lawyer . . . and pay the prospective plaintiff half of whatever fee Mr. Bowers recovered.11 It was a clever . . . too clever. Interestingly, none of the opinions ever identify the lawyer who worked out this plan with Mr. Bowers or indicate what happened to him.

The Nashville Law & Library Association filed its petition to bring this practice to the attention of the Tennessee Supreme Court, which referred the case to the State Board of Law Examiners who determined that Mr. Bowers was a “man of good general reputation.”12 But, he did not “‘know anything about the ethics of the legal profession’ and thought it was ‘a wide-open business like selling cigars, and if he could get work to do, it was up to him to do it.’”13 The Board recommended against licensure.

The Tennessee Supreme Court was faced with a conundrum. Could it properly administer an oath and issue a license to a person who satisfied all of the educational and technical requirements to be a lawyer but who did not appear to understand what it meant to be an attorney? Keep in mind that this was decades before the Tennessee Code of Professional Responsibility was adopted in 1970. All that existed were the canons of legal ethics “formulated by the practitioners themselves.”14

Those canons were enough for a unanimous Court to decline to issue a law license to Mr. Bowers or administer the oath. Justice Lansden wrote the opinion:

[T]he ideals of the legal profession must be kept to the highest mark, and that its members must have a proper conception of the ethics of the profession

and must be required to live up to these standards. . . . There is something more than mere sentiment in professional ethics, as there is something more than a proper administration of the law. One who fails to live up to the ethics of his profession is likely to break down morally when great pressure is placed upon him. He may have a high standing in his community in all other respects, but failure to live up to the ethics of his profession indicates a latent defect of character.

* * * *

A consideration of the nature of the profession and the relationship between attorney and client forbids irresponsible men being turned loose upon society, or intrusted with this high office and the special learning which it implies. Society at large would pay an unspeakable penalty if such were the case. The courts have ever maintained the highest standards for the legal profession, and we cannot lower them.15

The oath is what binds attorneys to undertake the weighty responsibility of such a role, and the Tennessee Supreme Court declined to administer it to Mr. Bowers.

A few years later, Justice Lansden would face such “great pressure” himself. But, that is a story for another column. In a little over a month, the Tennessee Supreme Court will continue its solemn duty of administering the oath to hundreds of applicants for admission to practice law in the State of Tennessee:

“I, _____, do solemnly swear or affirm that I will support the Constitution of the United States and the Constitution of the State of Tennessee. In the practice of my profession, I will conduct myself with honesty, fairness, integrity, and civility to the best of my skills and abilities, so help me God.”16

More than tradition, skill, learning, or precedent, the oath is what binds us all to the higher duty of our profession.

1 Section 5772 of Shannon’s Code, in Gregory v. City of Memphis, 157 Tenn. 68, 6 S.W.2d 332 (Tenn. 1928).

2 Former Judge D.L. Lansden Dies, Clarksville Leaf Chronicle No. 135, p.1 (Aug. 9, 1924), available at https://www.newspapers.com/image/353316793/?fcfToken= eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9eyJmcmVlLXZpZXctaWQiOjM1MzMxNjc5 MywiaWF0IjoxNzIzMzE2NjcxLCJleHAiOjE3MjM0MDMwNzF9.eZB-EeHUV8QOS5OnVT84OLWHzmG9ZWKhoWSKh3meIg.

3 Grace Renshaw, Jim Rossi Appointed to the Judge D.L. Lansden Chair in Law, Vanderbilt Univ. (Mar. 12, 2019), https://law.vanderbilt.edu/jim-rossi-appointedto-the-judge-d-l-lansden-chair-in-law/#:~:text=Judge%20Lansden%20was%20 a%20teacher,chief%20justice%20for%20five%20years, last visited Aug. 10, 2024.

4 Clarksville Leaf Chronicle, supra n. 2.

5 In re Bowers, 137 Tenn. 189, 194 S.W. 1093 (1917).

6 Id. at 192.

7 In re Bowers, 138 Tenn. 662, 200 S.W. 821 (1918).

8 In re Bowers, 137 Tenn. at 192.

9 Id. at 190.

10 See Ingersoll v. Coal Creek Coal Co., 117 Tenn. 263, 98 S.W. 178 (1906), if you want to know how far back the personal solicitation rule goes.

11 In re Bowers, 137 Tenn. at 190-91; In re Bowers, 138 Tenn. at 664.

12 In re Bowers, 138 Tenn. at 665.

13 Id.

14 Id.

15 Id. at 666-67.

16 Tenn. S. Ct. R. 6.

HELLO MY NAME IS

By: Bridget J. Pyman Arnett | Baker

GRACE MALONE EWELL

September’s Hello My Name Is column features attorney Grace Malone Ewell. Grace is an associate attorney with the Woolf, McClaine, Bright, Allen & Carpenter law firm. There, her practice areas include: Health Care, Mergers & Acquisitions, Contracts, Corporate Law, Business & Employment Litigation, and Federal Practice. Grace completed her undergraduate studies at the University of Tennessee, receiving her bachelor’s degree in Public Administration with a Collateral in International Business, with minors in Public Policy Analytics with a focus on Health Care Economics, and in Hispanic Studies. Grace also obtained a Graduate Certificate in Health Policy from the University of Tennessee College of Nursing, completing a practicum on complex criminal healthcare fraud with the United States Attorney’s Office for the Eastern District of Tennessee in December 2021. She earned her law degree from the University of Tennessee College of Law in 2022, where she served as president of the Student Bar Association and as a member of the Order of the Coif. Grace is a member of the Tennessee Bar Association’s Health Law Section, and she co-chairs the KBA Barristers’ Constitution and Law Day Committee.

Grace’s professional journey reflects her deep commitment to her field and a passion for making a meaningful impact; and her background in healthcare and public policy has shaped her approach to law, highlighting her dedication to supporting clients and navigating complex legal issues. Through her thoughtful responses, Grace illustrates the blend of professionalism and personal experience that defines her work and character.

Why did you go to law school and what do you enjoy most about your job, now?

My entire family is in the medical field, and I grew up volunteering at my local hospital, so medical school was the natural choice. I dutifully started down this path with the intention of becoming a neurologist, even working as a research assistant in a lab studying infant language learning and perceptual development for over a year. I quickly aborted mission, though, after I spent an entire semester learning about the buoyancy of whales in an undergraduate biology class. I had always had a strong interest in public policy and, above all, wanted to find a way to help people, so I decided to study public

administration and public policy analytics, focusing on how laws and economic policies impact health care and health outcomes. Obviously, this choice led me to law school. Now, I like to say that rather than getting to help people, I get to help people help people every day.

What is your favorite book?

A Lesson Before Dying by Ernest J. Gaines. Looking back on it, reading this book may have sparked my interest in the law. In my high school literature class, we were required to select one major American author to study independently throughout the year. I chose Ernest J. Gaines and read all of his major works. A Lesson Before Dying was by far my favorite and had the most profound impact on me personally. Based on the true story of Willie Francis, a young Black American known for surviving a failed electrocution in 1946, the book follows a young man named Jefferson, who is on death row for a crime he did not commit. The book inspires introspection on important topics like what it means to be “just,” the fallible nature of our justice system, and redemption in death. I highly recommend it.

If you could give a new law student one piece of advice, what would it be?

Don’t take yourself so seriously. Yes, there is a time and a place to be the stoic, intense attorney. But such intensity is often the reason lawyers get a bad rap. There is something to be said for being human and, more to the point, just being yourself. Letting down your lawyer façade doesn’t just increase your own quality of life but also makes you a better lawyer. Adding a little bit of personality into the law allows you to be more relatable to clients and opposing counsel and tends to foster an environment of civility and respect in what can otherwise become an adversarial environment.

Have you traveled or lived internationally?

I absolutely love to travel. In many ways, this is how I decompress and take a break from practicing law. I’ve been fortunate to visit 49 states (missing Alaska), over 40 countries, and live and work for six months in London. My husband, William, and I had just started dating when I relocated to London. He took his first trip overseas to come visit me and caught the travel bug! We now try to take one big “adventure” each year! Our dream is to visit Patagonia and Antarctica.

PRIVILEGED TO BE A LAWYER

By: William E. Mason Kennerly Montgomery

PRIVILEGED TO BE PRACTICING

I woke up this spring to find that I’ve been practicing law for 50 years. As pedestrian as it sounds, I still get up every day, excited to find the next opportunity presenting itself.

When Tasha asked me to write an article for the annual health edition of DICTA on the privilege of being a lawyer, it made me think about the luck I’ve had not being burnt-out. Wondering why I’m such a Pollyanna about our profession, even though I know others find it challenging, I asked ChatGPT™ for suggestions for remaining healthy while practicing.

Here are Chat’s recommendations -- and my personal scorecard:

1. **Take Regular Breaks**: Schedule short breaks throughout your day to rest and recharge. Even a five-minute walk or a brief mindfulness session can make a difference. I’m a failure at this. When I’m working, I barely look up, much less go for a walk.

2. **Set Boundaries**: Clearly define your work hours and stick to them. Avoid checking emails or taking calls outside of these hours to maintain a healthy work-life balance. I’ve always been an early-bird and I’ve enjoyed starting the day with a couple hours of the work that I want to do, uninterrupted by colleagues or clients. And by 5 or 6 pm, I’m tired and work stops because I’m ready to quit, go home and not work. My bodyclock has helped me conform to this suggestion for avoiding burn-out.

3. **Delegate Tasks**: Don’t try to do everything yourself. Delegate tasks to colleagues or support staff when possible. I’ve learned to do this; it’s of course much easier, when you are the senior person, to let others do the stuff you no longer want to handle. It is surprisingly freeing to let my fellow shareholders manage the Firm, and my kids and grandkids make decisions about their own lives, while I enjoy the results of their actions.

4. **Practice Mindfulness and Meditation**: Engage in mindfulness exercises or meditation to reduce stress and improve focus. This is another one that might fit you, but where I’m a complete failure.

5. **Exercise Regularly**: Incorporate physical activity into your daily routine to boost your mood and energy levels. First the Downtown Y, and now the Cansler YMCA, have been great resources for me. I thought I was working out to be less fat. According to Chat, regular exercise might have helped me continue to have the privilege of enjoying the practice of law.

6. **Maintain a Healthy Diet**: Eat a balanced diet to keep your body and mind in optimal condition. While I’m pretty good at avoiding French fries and red meat, I still enjoy too much of a good thing when it comes to eating. I’ll give myself a “C” on diet.

7. **Seek Support**: Talk to friends, family, or a therapist about your

AROUND THE BAR, continued from page 6

Medicare and the various options.  The date and exact presentation style is TBD, but the plan is for it to be conducted via Zoom.

7. Attend the KBA Wellness Conference on Friday, September 27, 2024. We will have great CLE programming focused on wellbeing along with Mac’s Pharmacy again offering flu shots.

8. Read and enjoy the September DICTA takeover by the Wellness Committee.

9. Attend one or more of our organized events, including group

stress and burnout Sometimes just sharing your feelings can provide relief. This is not one I’ve employed.; I’m sure it’s healthy, but I’ve practiced being tight-lipped for so long it’s hard for me to imagine opening up about the sources of stress in my practice.

8. **Take Time Off**: Use your vacation days to take a break from work and fully relax. No, this one’s not for me. However, I learned during the pandemic that I can work just as effectively from anywhere there’s decent WIFI, and the change in scenery, from the office to home to the beach to the mountains, is very refreshing.

9. **Engage in Hobbies**: Pursue activities outside work that you enjoy, to keep your mind engaged and provide a mental break from legal work. I like reading non-legal material and am always reading at least a couple of books (on tape). I also find the opportunities to participate in a couple favorite nonprofits (Legacy Parks, Hillcrest Healthcare and United Way) are pleasurable and rewarding and create breaks from the routine of legal work.

10. **Stay Organized**: Use tools like calendars, to-do lists, and project management software to keep your workload manageable and avoid feeling overwhelmed. I like to think I’m organized, and I want my clients to appreciate my methodological approach, but if you saw my office you’d know the truth is otherwise.

11. **Connect with Colleagues**: Build a support network within your profession. Sharing experiences and advice with fellow lawyers can be very helpful. This is not my strong suit, although I’ve been significantly helped by leaving solo practice and joining a firm during the most recent term of my career and by having bright, energetic, interesting lawyers to share the work.

12. **Continuous Learning**: Engage in professional development and learning opportunities that can help you feel more confident and competent in your role. This is Chat’s last suggestion, but it is a big reason I continue to enjoy the law. I’m privileged to represent smart people doing ground-breaking work who are willing for me to learn from them. During the pandemic, for instance, the UT Research Foundation put me to work on pharmacy and device clinical trial agreements, an area I had never before been exposed to and that was refreshing. I like representing clients in diverse, forward-looking areas, like advance composite materials, because of the stuff I get to learn while supplying the legal requirements.

You undoubtedly are attracted to a different set of these or other strategies, but I can now see, looking back, that some of them have helped me avoid boredom, undue stress and burnout, and left me with the privilege of practicing law in Knoxville.

yoga, fitness classes, hikes, wellness CLE programming, and more. If there is an event you would like to see, we would like to hear your ideas! Please feel free to reach out to Hannah Lowe or Beth Ford via email.

10. Participate in the annual Tennis / Pickleball Tournament. We have a strong contingent of tennis/pickleball fans among our membership. We look forward to seeing you at the annual tournament every year!

WELLNESS 3.0: TRENDS THAT HAVE COME AND TRENDS THAT HAVE GONE

Happy third birthday to the KBA Wellness Committee and thank you to the KBA leadership for recognizing a need for us all to work on the wellness of our community of legal professionals. This month is our own Wellness Month – the ABA recognizes a week in May as Wellness Week. Not only does DICTA have a decidedly wellness theme, but the Wellness Conference is set for September 27, and we are all (I am sure) thinking ahead to October’s Second Annual Healthy Bar Challenge, designed by a group of wellness lovers led by Alicia Teubert and sponsored by First Horizon.

As a recap, what is wellness? We all learned in law school to look first for definitions in statutes. Although it is not exactly a set of statutes, wellness is defined by the National Wellness Institute as having six dimensions: physical, intellectual, occupational, spiritual, social, and emotional. Our KBA committee has decided to focus on practicing wellness through financial wellness, and an educational component that addresses each of the National Wellness Institute’s dimensions.

Over the last three years, we have sponsored hikes of varying difficulties, planned financial wellnesses seminars that correlate to the different points in the life of a career, organized tennis and pickleball tournaments, and held the fall Wellness Conference. We have had miscellaneous yoga events, weekly walks at Lakeshore, and special spin classes. We are always looking for new ways to bring wellness opportunities to each of you and strongly encourage suggestions from all.

There are new trends that make sense, but there are trends that seem a bit, may we say, outrageous? Among the most bizarre trends is mouth taping.

Why would we tape our mouths shut? Is it to keep us from eating or from irritating the judge? According to Joni Sweet in the December 30, 2022, edition of Forbes, it “forces you to breathe out of your nose at night, which may provide health benefits such as humidifying the nasal passages.” It comes with the advice to consult your doctor. No kidding! Sound healing is a trend that we might not have realized is a health trend. The Sound Healing Academy (www. acadamyofsoundhealing.com) says that sound healing “is a powerful therapy that combines differing healing sounds, music, and sound healing instruments to improve our multidimensional well-being by creating a beautiful experience where all layers of our luminous energy field (body, mind, soul, spirit) are awakened gently and lovingly.” You may have experienced sound healing if you have been in a group that used singing bowls. Retired priest and retired criminal defense attorney, Charles Fels often brings a singing bowl to the groups that he leads, and he uses them at the beginning and at the end of the sessions.

At this point, you may be saying, “Yes, yes, yes. We know all of that. We know what a progressive organization we have. We read DICTA. Tell us something that we do not know.” This month we are here to tell you about health trends that are new and some trends from yesterday that have been debunked.

There are trends that are on the edge of being out of the ordinary. The Cleveland Clinic in its December 22, 2022, edition of “Diet, Food, and Fitness” identified several health trends for 2023. One trend that they thought would be popular was “CBT-I” techniques to help deal with insomnia. It is not an over-the-counter aid such as melatonin or a prescription sleep aid. It is cognitive behavior therapy that helps a person figure out the root reason for being unable to sleep or stay asleep, and it may lead your health care professional to recommend relaxation training or meditation or hypnosis or biofeedback or breathing exercises.

By: Beth Ford Interim Director

Another new trend is the use of exercise recovery tools. Exercise recovery is described in Joni Sweet’s Forbes article. It means using recovery tools such as a massage therapy guns that have different attachments for different parts of the body. Another tool is air compression boots to recover from long runs or to improve circulation. The pictures on the internet resemble something that might be worn by a superhero or a Star Wars warrior.

Lastly, there are trends which may be easier to adopt and which do not require a great expenditure of time or money. Among those are the following:

Women’s Healing Circles is described in the Cleveland Clinic article. From the description, it is possible that many women engage in this type of wellness activity often and informally. It is supporting one another and sharing experiences. Do you have a group of friends with whom you walk regularly or eat regularly? The chances are great that many women have long ago discovered the benefits of this trend. Exercise snacks are the perfect way to get exercise when you just do not have time. Endocrinologist Dr. Shirisha Avadhanula describes in the Cleveland Clinic article that taking 15-minute snacks of exercise during the day can add up and is just as effective as trying to work out for a longer time less often. Other writers, such as head coach Adrian Richardson on the Fitbit Coach app, recommend Micro Workouts to accomplish the same thing.

Sprinkles of joy (Cleveland Clinic) is my favorite trend. Celebrate multiple times throughout the day the joys that you encounter- the color of the sky as the sun rises or sets, the smell of the air after it rains, the smiling barista at the coffee shop, etc. There are sprinkles of joy all around us, and seeing them is an easy way to engage in self-care.

The Google search of “health trends” led to many other easy ways to embrace wellness. They included mindful eating, sleep hygiene, tracking stress, and decluttering. We would encourage you to try these and to let the Wellness Committee know what works for you.

It is equally important to review past trends and assess how effective they were. In a wellness article on June 20, 2024, New York Times writer Danielle Friedman identified “8 Fitness Myths that Drive Experts Crazy.” Among those which have fallen into disfavor is stretching before you work out which may cause, rather than prevent, injuries. She interviews a doctor who disagrees that running will destroy your knees because our bodies are designed to regenerate. Another myth to which many of us subscribe is the belief that we need 10,000 steps daily to stay healthy. Read the article to learn about the origin of that myth. In fact, the American Council on Exercise recommends between 4,000 steps and 7,500 steps to be healthy, not 10,000.

Adopt a trend! Drop a debunked trend! Wait for the trends of 2025! Your Wellness Committee is here to keep you informed.

KBA Wellness Conference

21ST CENTURY LAWYER

By: Taylor P. Monnig Holland & Knight, LLP

NAVIGATING THE WORK-FROM-HOME LANDSCAPE AS A JUNIOR ASSOCIATE

As an Associate at Holland & Knight, LLP who exclusively works remotely (with the exception of the occasional quarterly drop-in to the Nashville office), I’ve found that working from home offers a unique set of challenges and opportunities. Admittedly, clearly separating your professional and personal lives when your home and your office are one in the same is a skill I’ve yet to perfect. Nevertheless, here’s what I’ve found to be most important to my success as a remote associate thus far.

Don’t Let Your Mentorship Suffer

The guidance received from senior attorneys and partners, whether it’s a personal touchpoint like a quick office pop-in or a teaching moment like a handwritten markup, is crucial to the professional development of junior associates. The traditional mentorship model of in-person interactions has to be adjusted for remote employees, necessitating a more deliberate effort from senior attorneys to provide mentorship. For me, quick office pop-ins are now scheduled calls, and handwritten markups are scanned and emailed to me. But that additional effort on the senior attorney’s part is worth it, and I make it a point to show I’m appreciative. Ultimately, remote mentoring requires a proactive approach. Regular virtual check-ins, structured feedback sessions, and clear, accessible channels for questions can bridge the literal and figurative gap created by physical distance.

Set Boundaries, But Know They’ll Sometimes Be Crossed

The challenges of working from home don’t just apply to professional development. They impact work-life balance, too.

When home and the office are the same place, the lines denoting the beginning and ending of business hours can easily become blurred, which can lead many junior associates to feel like they’re constantly working or unable to fully detach from their work – myself included.

I’ve found that creating and adhering to boundaries helps with this. Having a designated workspace and identifying which hours are truly business hours and building your schedule around them promotes a sense of normalcy. Based on my experience, the key to successful implementation of boundaries lies in communicating those boundaries to my colleagues and setting expectations appropriately, while also being flexible as needs and “fires” arise.

Looking Ahead

Today, remote work is more commonplace than it’s ever been, but it’s still relatively uncharted territory for many industries and professions, including ours. For firms to implement it and sustain it, it’s critical for everyone involved to understand that what happens in the “office” is just as important as what happens outside of it. Senior attorneys and partners must continue to adapt their mentorship strategies to the remote environment, ensuring junior associates receive the guidance and support that’s needed for us to grow and advance in our careers. At the same time we, as junior associates, must find ways to balance our professional and personal lives effectively--ways that foster both well-being and productivity. Despite the hurdles remote work presents, it presents opportunities for innovation and growth, too. With a collaborative approach, we can position ourselves to thrive in this new reality.

SCHOOLED IN ETHICS

By: Judy M. Cornett University of Tennessee College of Law

IS WELLNESS AN ETHICAL DUTY?

It’s tempting to think of wellness as merely a personal goal, but we should ask whether wellness is an ethical duty. The Merriam-Webster Dictionary defines wellness as “the quality or state of being in good health especially as an actively sought goal.”1 The Global Wellness Institute defines wellness as “the active pursuit of activities, choices and lifestyles that lead to a state of holistic health.”2 Thus, wellness is an active process of lifestyle choices encompassing all aspects of human health.

What are the major challenges to wellness faced by lawyers?

The Tennessee Lawyers Assistance Program provides the following nonexclusive list of the issues for which they provide assistance:

• depression and suicidality

• anxiety

• substance use disorders

• process addictions (gambling and sex)

• trauma recovery

• grief and loss

• stress and burnout

• cognitive impairment

TLAP also notes that “18% of lawyers suffer from alcoholism and addiction[;] 33% of lawyers suffer from significant mental health issues[; and] 70% of lawyers suffer from stress related issues.”3 It stands to reason that a lawyer dealing with these issues might find it difficult to comply with the Rules of Professional Conduct.

So what do the Tennessee Rules of Professional Conduct say about these issues? Rule 1.16(a)(2) states, without comment, that a lawyer must not represent a client if “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.” Comment [3] to Rule 1.3 implicitly addresses burnout and stress: “A lawyer’s work load must be controlled so that each matter can be handled competently.”

The Rules also encourage lawyers to seek help from TLAP by providing an exemption from the reporting requirement. Rule 8.4(c) provides: “This Rule does not require disclosure of . . . information gained by a lawyer or judge while serving as a member of a lawyer assistance program approved by the Supreme Court of Tennessee or by the Board of Professional Responsibility.” Similarly, the Code of Judicial Conduct recognizes that these issues can result in impaired performance. Rule 2.14 provides: “A judge having a reasonable belief that the performance of a lawyer or another judge is impaired by drugs or alcohol, or by a mental, emotional, or physical condition, shall take appropriate action, which may include a confidential referral to a lawyer or judicial assistance program.”

Read as a whole, the Rules seem to assume wellness. At numerous points, the Rules require lawyers to act “reasonably” or to use professional judgment. For example, Rule 1.7(b)(1) warns that a lawyer may represent a client despite having a concurrent conflict of interest only if “the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.” Paragraph [10] of the Preamble notes that lawyer must resolve conflicting responsibilities “through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.” Rule 1.14 comment [7] counsels that, when deciding whether to seek a conservator or guardian for a client, “[e]valuation of such circumstances is a matter

entrusted to the professional judgment of the lawyer.”

Should Tennessee’s Rules address wellness more explicitly? At least four states’ rules currently do so. Rule 1.1(b)(ii) of the California Rules of Professional Conduct defines “competence” to include the “mental, emotional, and physical ability reasonably necessary for the performance of [legal] service.” Utah’s comment [9] to Rule 1.1 provides: Lawyers should be aware that their mental, emotional, and physical well-being may impact their ability to represent clients and, as such, is an important aspect of maintaining competence to practice law and compliance with the standards of professionalism and civility. Resources supporting lawyer well-being are available through the Utah State Bar. Vermont also adds a comment [9] to its Rule 1.1:

A lawyer’s mental, emotional, and physical well-being may impact the lawyer’s ability to represent clients and to make responsible choices in the practice of law. Maintaining the mental, emotional, and physical well-being necessary for the representation of a client is an important aspect of maintaining competence to practice law. See also Rule 1.16(a)(2).4

The amendment adding comment [9] to Vermont’s Rule 1.1 was a response to the 2017 report of the National Task Force on Lawyer WellBeing entitled The Path to Lawyer Well-Being: Practical Recommendations for Positive Change,5 which noted that “[t]roubled lawyers can struggle with even minimum competence.”6 Thus, the Vermont amendment was “intended to remind lawyers that their behavioral health may impact clients and the administration of justice, and to encourage lawyers to employ preventive strategies and self-care.”

Even though Tennessee’s Rules don’t explicitly mandate wellness, we should take steps to enhance our wellness, not just for our own sake, but for the sake of our clients and the profession. We can access the wellness resources available from the Knoxville Bar Association7 and the Tennessee Bar Association.8 We can support one another through mentoring, both formal and informal.9 We can consider changes to our legal organizations that will reduce stress and burnout. We can exercise, get enough sleep, meditate, and eat a healthy diet. Most importantly, we can reach out when we need help.

National Suicide Hotline: 988 Tennessee Lawyers Assistance Program: 615-741-3238

KBA’s Lawyers Concerned for Lawyers10: Jim Cornelius at 865- 292-2515 or John Butler at 865-244-3925

1 https://www.merriam-webster.com/dictionary/wellness.

2 https://globalwellnessinstitute.org/what-is-wellness/.

3 https://tlap.org/.

4 Virginia’s comment [7] to Rule 1.1. is virtually identical but substitutes the word “ability” for the word “well-being.”

5 The Report is available at http://lawyerwellbeing.net.

6 Id. at 8.

7 https://www. https://www.knoxbar.org/?pg=WellnessResources.

8 https://www.tba.org/?pg=Attorney-Wellbeing-Committee.

9 One example is the KBA’s “Mentor for a Moment” program.

10 https://www.knoxbar.org/?pg=LawyersAssistanceProgram.

MONTHLY MEETING

Plan now to attend the Barristers monthly meet-up on Wednesday, September 11, 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.

CONSTITUTION DAY

Constitution Day 2024 will take place on Fridays, Sept. 13 and 20, at local elementary schools. Attorney volunteers are needed on each date to (1) speak with a local elementary school class about the Constitution on Sept. 13, and (2) appear a week later on Sept. 20 with a local judge to observe a class project related to the Constitution. Interested volunteers should contact Grace Ewell (gewell@wmbac.com) or (Richard Graves (rgraves@fmsllp.com) with their availability.

BARRISTERS HUNGER & POVERTY RELIEF COMMITTEE

The Hunger and Poverty Relief Committee would like to thank everyone who attended and donated to our 6th Annual Brews for Backpacks event on August 22. Over $800 was raised for ChildHelp Foster Family Agency of East Tennessee! We would also like to thank our sponsor, TCV Trust & Wealth Management, for helping make this event possible.

LAWYERS LINK UP CHARITY GOLF TOURNAMENT

The Barristers and the KBA are joining together to co-host the annual four-person scramble golf tournament on Monday, October 28, at

Thursday October 3, 2024 11:30am

the Tennessee National Golf Club. Revenue from the tournament goes directly to funding various charitable endeavors of the Barristers, including the efforts of the Hunger & Poverty Relief Committee. Register online at knoxbar.org/Event_Highlights. The Golf Tournament sells out quickly and payment is required to reserve a spot in the tournament.

VOLUNTEER BREAKFAST COMMITTEE SEEKS SPONSORS AND VOLUNTEERS

The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. at the Volunteer Ministry Center, located at 511 N. Broadway, Knoxville, Tennessee. The Volunteer Breakfast Committee needs just one more sponsor for 2024. The cost is $150 for sponsoring, and we need 4-5 volunteers. We meet at 6:15 a.m. and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30 a.m. It’s a great way to serve the community! Please contact either Matt Knable at mknable@wkfirm.com or Miranda Goodwin at mirandaegoodwin@gmail.com with any questions and/or about volunteering.

Join us as we honor

Justice Sharon G. Lee

When a girl becomes a Girl Scout, she receives a pin in the shape of a trefoil, symbolizing her acceptance of the values she will learn. Members of the Trefoil Society commit to support Girl Scouts of Southern Appalachians through generous annual financial support, so girls can discover their leadership potential, take action in their communities, and learn life skills along the way.

Each fall, Trefoil Society Luncheons are held in each of our Council's regions to honor a woman who exemplifies the spirit of Girl Scouting. Justice Sharon G. Lee is our 2024 East Tennessee honoree.

The Foundry World’s Fair Park Knoxville, TN

MANAGEMENT COUNSEL: LAW PRACTICE 101

By: James Snodgrass Kramer Rayson LLP Josh Grossbard TIS Insurance Services, Inc.

EVALUATING EMPLOYEE HEALTH WELLNESS PROGRAMS

“I don’t know about anyone else. But it was a good summer for me. I lost seven pounds. And you know what? I’m just gonna take five days off anyway.” Stanley Hudson, Season 5, Episode 1 of The Office.

The Dunder Mifflin weight loss challenge provided an example of a company wellness program gone awry. In order to win extra vacation days, the Scranton branch takes drastic measures, including taking a tapeworm or dropping another employee off miles away from the office with no phone or money.

This 2008 episode has not scared off employers from seeking the benefits from health and wellness programs. Similarly, most insurance companies provide wellness programs within their healthcare offerings. Their rationale is easy to understand—healthier employees can reduce the risk of higher claimants, which can lead to less claims for the insurance companies and provides a cost containment strategy for the employers. Furthermore, employers feel that wellness programs can keep employees more engaged and productive.

Other goals of employee wellness programs include lowering health care costs, reducing absenteeism, increasing employee productivity, reducing workers compensation and disability-related costs, reducing injuries, and improving employee morale and loyalty. Josh Grossbard, an Employee Benefits Consultant with TIS Insurance Services, Inc., mentioned how employers are focused on digitizing wellness programs, so they are more accessible and at the forefront for their employees. Occasionally, employers and/or employees are unaware they even have wellness plans included in their health plans due to lack of education from their health benefits broker or are lacking the technology to digitize their employee benefits program. Josh provided the following examples of common employer wellness programs:

• Physical Health Programs – Employees are incentivized to get annual preventative screenings for health, dental and vision. This can also include physical fitness and nutritional goals, such as tracking steps, workouts, weightloss programs, smoking cessation programs. Employees can claim financial rewards for completing the programs, in addition to discounts for gyms and fitness studios.

• Mental and Emotional Health Support – Remote work has accelerated the need for mental and emotional health support for employers, which are increasingly common in employer health plans. This includes employee assistance programs, access to mental health therapists and services, coaching, meditation & mood tracking. Employers have made mental health and support services more front and center for employees, with examples including access to substance abuse helplines, domestic abuse hotlines, suicide and crisis hotline, and crisis text lines.

• Financial Wellness Plans – Employee financial wellness programs are designed to help employees manage their finances and reduce financial worries in order to ensure

a more productive and focused workforce. Examples of potential benefits include Financial Literacy Training, Financial Goal Management, Debt Management, Retirement Planning, Emergency Relief and Expense Reimbursement. Employers can build an in-house program or partner with experts to create a customized program tailored to their employees’ demographics.

However, as always, employment lawyers can point to several statutes that employers must consider when implementing wellness plans. To start, we will highlight three main laws involving workplace wellness plans: 1) the Health Insurance Portability and Accountability Act (HIPAA); 2) the Americans with Disabilities Act (ADA); and 3) the Genetic Information Nondiscrimination Act (GINA), although other statutes may apply.

As one example, an employer must ensure that their wellness program complies with HIPAA’s non-discrimination provisions. HIPAAs applicability also depends on whether a workplace wellness program is offered as a part of a group health plan or directly by the employer. Employers should take special attention when employees are potentially eligible for a reward that is contingent on satisfying a standard that is related to a health factor under HIPAA.

Employers must also make sure that any offered wellness program complies with the ADA. Without examining specifics, safe guidelines are to ensure that participation in any program is voluntary and any information about an employee’s health which is obtained should not be used to limit health coverage eligibility or affect any adverse employment decision. Additionally, employers should consider whether reasonable accommodations can be offered to assist employees with disabilities in participating in any wellness program.

To this end, the EEOC has specifically published a “Final Rule on Employer Wellness Program” although sections on approved incentives were later removed in January 2019. The EEOC Final Rule details that wellness programs that include disability-related inquiries or medical exams must be “voluntary” and “have a reasonable chance of improving the health of, or preventing disease in, participating employees, and [ ] is not overly burdensome.”

Under GINA, the employer must make sure that any genetic information that is provided is not tied to a financial inducement, and the enrollment in any program is voluntary. GINA will potentially apply even to evaluations which seek family history of a disease or disorder.

These are just a small sampling of the various considerations that employers must evaluate when considering implementing wellness programs under HIPAA, the ADA, and GINA. Therefore, it is important to consult with an employer’s employee benefits provider or employment attorney about any questions or risks with a wellness program, and to ensure that any program does not run afoul of major employment statues, including HIPAA, the ADA, and GINA.

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.

LEGAL UPDATE,

continued from page 8

was not triggered because the statute applied to “all minors, regardless of sex”39 and that it passed rational-basis review, noting that “[n]either risk aversion nor a fair-minded policy dispute” about the protection of minors showed “animus” towards transgender people.40

At issue is a circuit split on the regulation of gender-affirming care; how “laws that single out transgender people” should be reviewed; and parents’ rights regarding children’s medical care.41 Oral argument is not scheduled, but a decision is unlikely until the end of the term.

1 144 S. Ct. 2244 (2024).

2 467 U.S. 837 (1984).

3 144 S. Ct. at 2460.

4 Chevron, 467 U.S. at 842–44.

5 Loper Bright, 144 S. Ct. at 2254.

6 Id. at 2264–65, 2271; id. at 2294 (Kagan, J., dissenting); see also id. at 2290–91 (Gorsuch, J., concurring).

7 The decision also resolved Relentless v. Dep’t of Commerce. Justice Jackson did not participate in the consideration or decision of Loper Bright but joined the dissent as it applied to Relentless. Id. at 2294 (Kagan, J., dissenting).

8 Id. at 2270–72 (citing Marbury v. Madison, 1 Cranch 137, 177 (1803)).

9 Id. at 2265–66.

10 Id. at 2271. The Court noted, however, that past decisions applying Chevron are still protected by statutory stare decisis. Id. at 2273.

11 Id. at 2273. But the Court noted that courts must respect statutory delegations of authority to agencies in situations where, for example, a particular statute authorizes an agency to define a statutory term or to “fill up the details of a statutory scheme, or where a statute uses a term or phrase that provides an agency with flexibility (e.g., “reasonable” or “appropriate”). Id. at 2263.

12 The dissent argued that Chevron should be preserved because, in addition to stare decisis considerations, its framework effected a legally correct and sensible balance between the limits of congressional legislation and the expertise of federal agencies and, thus, had “become part of the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.” Id. at 2294 (Kagan, J., dissenting). In short, the dissent predicted that the majority decision would “cause a massive shock to the legal system.” Id.

13 Corner Post, 144 S.Ct. at 2448.

14 28 U.S.C. § 2401(a).

who will be honored by the Knoxville Latino Bar Association at its annual gala on September 27 at the Foundry. For more information or to register to attend, please scan the QR code below: Congratulations to

15 Id. at 2448–49.

16 Id. at 2460.

17 Amy Howe, Court schedules first cases for 2024-25 term, SCOTUSblog (Jul. 26, 2024, 2:48 PM), https://www.scotusblog.com/2024/07/court-schedules-firstcases-for-2024-25-term/

18 See VanDerStok v. Garland, 86 F.4th 179, 183–86 (5th Cir. 2023), cert. granted, 144 S. Ct. 1390 (2024).

19 18 U.S.C. § 921(a)(3)(C).

20 Id. at 188.

21 Title and Definition Changes, 43 Fed. Reg. 13531, 13537 (Mar. 31, 1978).

22 VanDerStok, 86 F.4th at 182–83.

23 87 Fed. Reg. at 24739.

24 Id. at 24728.

25 VanDerStok, 86 F.4th at 189.

26 Id. at 191.

27 Amy Howe, Justices take up “ghost guns” case for next term, SCOTUSblog (Apr. 22, 2024, 6:23 PM), https://www.scotusblog.com/2024/04/justices-take-up-ghostguns-case-for-next-term/ (internal quotation marks omitted).

28 Garland v. VanDerStok, 144 S. Ct. 1390 (2024).

29 Amy Howe, Supreme Court takes up challenge to ban on gender-affirming care, SCOTUSblog (Jun. 24, 2024, 10:03 AM), https://www.scotusblog.com/2024/06/ supreme-court-takes-up-challenge-to-ban-on-gender-affirming-care/ (noting that, after considering the petitions involving Tennessee’s and Kentucky’s bans, the Court granted the Biden administration’s petition as to the Tennessee ban).

30 Tenn. Code Ann. §§ 68-33-103(a)(1), -102(5). The Act contains certain exceptions; for example, it allows the use of puberty blockers and hormones to treat certain congenital conditions. See id. § 68-33-103(b)(1)(A)–(B).

31 Tenn. Code Ann. § 68-33-101(m).

32 L. W. by & through Williams v. Skrmetti, 83 F.4th 460, 468 (6th Cir.) (citing Tenn. Code Ann. § 68-33-101(c) (internal quotation marks omitted), cert. dismissed in part sub nom. Doe v. Kentucky, 144 S. Ct. 389 (2023), and cert. granted sub nom. United States v. Skrmetti, No. 23-477, 2024 WL 3089532 (U.S. June 24, 2024).

33 L. W. by & through Williams v. Skrmetti, 83 F.4th at 469.

34 Howe, supra note 29.

35 L. W. by & through Williams v. Skrmetti, 83 F.4th at 469.

36 Howe, supra note 29.

37 L. W. by & through Williams v. Skrmetti, 83 F.4th at 473.

38 Id. at 475–77.

39 Id. at 480.

40 Id. at 488.

41 Howe, supra note 29.

IN LIMINE: PROFILING FUTURE JDS

By: Andrew W. McRee Lincoln Memorial University Duncan School of Law

SAMUEL ELIZONDO LINCOLN MEMORIAL UNIVERSITY DUNCAN SCHOOL OF LAW

Please tell me about yourself.

My name is Samuel Elizondo. I was born in Los Angeles, California, and I have eight siblings. When I was about twelve, we moved to Northern California to a little town called Grass Valley. I lived there for most of my teenage years before moving to Auburn, California. While living in the Grass Valley/ Auburn area, I was active in sports, particularly wrestling and football. I was a 220 lb./ Heavyweight wrestler and played the center position for my football team. Despite a serious injury in my senior year, I achieved some athletic success by winning various championships in both sports.

I considered pursuing sports in college, but I ended things on a good note and decided to leave that part of my life behind to focus on academics. I struggled with academics most of my life due to being dyslexic. Despite my struggles, I received a bachelor’s degree from Sacramento State University graduating cum laude.

After graduation, I left California with my dad, and I moved with him to middle Tennessee, near Tullahoma. I love Tennessee: the people, the culture, the history, and the scenery.

How did you make the decision to go to law school, and why did you pick LMU law?

I always considered attending law school, but I have had my fair share of naysayers and doubters. I can recall multiple instances, both in high school and college, when classmates either laughed at me or explicitly told me I could not or would not make it in law school. There was one particular instance where a law advisor at Sacramento State tried to talk me out of going to law school. Instances like those have driven me to achieve my goals. I am nothing if not tenacious and a little stubborn.

I chose LMU Law for a few reasons. First, it is only a few hours away from some of my immediate family. If I needed to head home, I could get there quickly. I also really like the LMU Law mission statement. LMU Law seeks to create lawyers to address the underserved legal needs of Appalachia and other underserved areas of the United States. It is something I really believe in and appreciate.

Tell me about your law school experience so far: what activities and classes have you participated in and enjoyed?

It’s a wild ride, to say the least, and I think most law students would agree. Just about every law student, including myself, experiences some self-doubt, imposter syndrome, or some sort of turmoil during their first year. I know some of my personal experiences, as well as my classmates’ personal experiences, would make the average person quit if they had to go through the same things, but it takes a special type of person to endure

the struggle that is law school.

I’ve thoroughly enjoyed a variety of classes: Torts, Constitutional Law, Criminal Law, Business Organizations, and Administrative Law. I am also heavily involved with school organizations. I’m the Secretary of the Interstate Law Student Association, a peer leader, and the President of the Federalist Society. Our Federalist Society chapter recently won an Award at the Student Leadership Conference in Washington, D.C. The award is called the “Benjamin Franklin Spring Breakout Award.” We were given this award for continuously putting on various debates and panel discussions with strong attendance numbers.

What type of law do you want to practice, and where would you like to end up?

I am primarily interested in Corporate and Administrative law. In Corporate law, my dream job would be working for Home Depot. I know that sounds oddly specific, but I worked for the Big Orange Box all throughout my undergrad as a floor associate. The company was there for me and supported me during my struggles. There were a few short moments where that was basically all I had, so it holds a special place in my heart. I could not be more grateful and appreciative of the doors and opportunities it opened.

As for Administrative Law, I am interested in representing individuals that administrative agencies have wronged. Yes, I know that is almost completely opposite to what I want to do in corporate law. I became interested in administrative law after taking the course in law school, and I fell in love with the cases.

Outside of law school, what do you enjoy doing?

I’m an avid hiker and fisherman. My favorite lakes/rivers to fish in the greater Knoxville area are Douglas Lake and the West Wing of the Little Pigeon River. As far as hiking goes, Cades Cove is at the top of my list. Another great place to hike is Grandfather Mountain in North Carolina.

What is your ultimate “why” with respect to being a future attorney?

I see a lot of misinformation about the legal field, either online or through social media. I want to help inform people of their rights and what the government can or cannot do. I also generally want to be there for people and help them on what is potentially the worst day of their lives. When a person is accused of something or sued, it is one of, if not the worst day of their lives. The same thing can be said if they are the ones filing the lawsuit because they generally feel the opposing party has wronged them.

Finally, what is the biggest lesson you have learned in law school?

It is hard to pinpoint my biggest lesson in law school. I would say to have patience, give yourself breaks, and have a life outside of school. I also feel like I have become more empathetic towards people and the problems or issues they may be confronted with. I am unsure if these are technically considered lessons, but I have also become more of a listener and observer. Law school also deepened my faith.

Photo Ops Photo Ops

Annual Tennis & Pickleball Tournament is a Wellness Hit!

When the KBA hosts a tennis and pickleball tournament, everyone’s a winner! Of course, we do get a little competitive from time to time and, when the dust settled at the end of the August 16 tournament, it was time to tally the scores.

Kevin Dean walked away with the grand prize in tennis.

The second-place tennis player was Julia Slagle.

Turning to pickleball, the winner in the advanced bracket was Wayne Wykoff. In the intermediate bracket, the winners were Sam Lee and Christina Kleiser.

And, making her tournament debut (and only her third time to play the game), Joan Heminway snagged the honors for the Hon. Kristi Davis Lowest Score Award (and the gift certificate that came with it)!

Thanks to Cliff Rodgers for the enormous amount of work he did to keep the tournament running smoothly, on time, and with so much fun for all of us. Also, a big thank you to George Arrants for helping coordinate this year’s tennis tournament.

And a huge note of gratitude to our sponsor Elliott Davis. We couldn’t have done it without you!

Hope to see you again next year at the Cedar Bluff Racquet Club & Pavilion of Pickleball!

TOP TEN

By: Jason Long Lewis Thomason

FASTER, HIGHER, STRONGER –TOGETHER

My wife and daughter are devoted fans of the Olympics and, for the past two weeks, there has been nothing else on the television. I usually fall asleep no later than 9:00 p.m., so I am not much of an expert on the Games but, with that caveat, it seemed topical to offer my Top Ten Moments/People from the Games of the XXXIII Olympiad. To be fair, the coverage we get is heavily tilted in favor of the American athletes, so this will be somewhat of a jingoistic column.

10. The Eiffel Tower – What an awesome and iconic image overseeing the backdrop of these games. Paris is truly a city of the world, and there really is no more ideal location to host this gathering. Say whatever you want about the opening ceremonies (and plenty of people have), Celine Dion standing alone on the Eiffel Tower singing The Hymn of Love gave me goosebumps – and I don’t even like Celine Dion.

9. Tom Cruise – At the time of writing, the Olympics have not yet concluded, but rumor has it that Tom Cruise will be featured in the Closing Ceremonies. I’ve heard rumors of him rappelling down the Stade de France, riding a motorcycle down the Champs-Elysees with an Olympic Flag, parachuting with said flag onto the Hollywood sign in Los Angeles, and generally just doing Tom Cruise things. Is there anything more American that Tom Cruise parachuting onto the Hollywood sign with the Olympic Flag? I suggest there is not, unless it’s a hot dog eating contest between bald eagles on the Fourth of July while people shoot off fireworks and shotguns in the background.

8. Yusuf Dikec – You may not recall his name, but I bet you remember the meme. Yusuf is the Turkish guy who looks like he was just walking by the air pistol competition and thought to himself “hey, that looks fun,” and walked away with the silver medal.

7. U.S. Women’s Rugby Team – One of the best parts of the Olympics is watching sports that you don’t really understand. For me, rugby is one of those sports. I didn’t really know what I was watching when Alex Sedrick broke through two Australian tacklers and ran 100 yards to the other end of the field (endzone?) in stoppage time (don’t really understand stoppage time either), but it seemed like a special moment. It’s pretty fun to get super excited and not really understand why.

6. Stephen Nedoroscik – I love the unknowns who rise to stardom during the Olympics. Enter everyone’s favorite Clark Kent/Superman impersonator who sat for hours in a Zen-like state watching his teammates put the Americans in a position to win their first men’s gymnast team medal in 16 years, only to calmly step up and nail the final pommel horse performance. After staring emotionless for hours, the little smile that crossed his face as he went into his dismount, knowing what he just accomplished, was simply fantastic.

5. Armand Duplantis – Some people were upset that Armand participated in the pole vault under the Swedish flag. After all, he was born in Louisiana, attended college at LSU, and his coach/father sounds like he should be cooking a giant pot of gumbo. He elected to join the Swedish team based upon his mother’s nationality and because their team allowed him to bring his father on as a coach. I get that. The American team probably blew it, considering he took gold and set a new world record. Still, sometimes it’s just fun to root for these athletes and their amazing accomplishments, no matter what flag they are under.

4. Chocolate muffins – Henrik Christiansen, Norwegian Swimmer, probably did not think much about his TikTok video rating food in the Olympic Village at the time he made it. However, when he rated the chocolate muffins an “insane 11/10,” he started a movement and became a celebrity. In the following days, he posted more videos documenting his love for the muffins, including being caught in bed with the discarded remnants of the chocolate treat, watching the sunset over Paris with his muffin companion, and a hostage-style video in which the muffin appeared to have taken the swimmer captive. Now known as “the Muffin Man,” Christiansen clearly embraced the fun of the Olympics.

3. Katie Ledecky – Alright, she’s the most accomplished female swimmer in history and is deserving of every accolade she gets. However, there were two moments at these Olympics involving Katie which had nothing to do with winning one of her copious medals that stick out to me. First, there was the video of Katie walking poolside waving at a young girl. The reaction on the little girl’s face when her hero acknowledged her is priceless and sums up the beauty of sports. Second, the shot of Katie in the crowd cheering and ringing a cowbell as her training partner, Bobby Finke, won the 1500-meter freestyle speaks to her character.

2. Simone Biles – Pretty much everything Simone did during these Olympics was in its own category of cool. From her amazing performances to her support of her gold medal winning team, Simone stood out as a class act and a true champion from beginning to finish. It was an amazing comeback after a difficult Olympics three years ago and now I don’t know anyone who doesn’t call her the GOAT. Go back and watch the reactions of the U.S. Basketball players as she vaults and spins and jumps her way to a gold. When you can impress those guys with your athleticism . . . well, those guys aren’t easily impressed.

1. Snoop Dogg – Maybe the coolest guy on the planet, Snoop took it to a whole other level during the Olympics. Partnering with Martha Stewart, we saw him engaged across the full spectrum of the Olympiad from sampling fine French cuisine to critiquing the Dressage competition, all in his quintessential Snoop-style. Snoop Dogg was everywhere during these Olympics, and we were all the better for it.

BARRISTER BITES

By: Angelia Morie Nystrom Vice President for Advancement and Chief Legal Counsel East Tennessee Foundation

LET’S GET STUFFED WITH COMFORT FOOD!

The time has come that I have been dreading for eighteen years: my nest is about to be empty. Trace is heading off to college. The thought of an empty nest brings a mix of emotions—pride, excitement, and a touch of sadness. But mostly stress…. he’s going to be five miles away, but sometimes it feels like 500. I’m a stress-eater, and I’m finding myself craving comfort food more than ever. While part of me wants to dive into a tub of ice cream, the other part knows that my waistline will hate me. It’s a delicate balance—seeking comfort without compromising health.

Recently, we took a vacation to Greece to celebrate Trace’s high school graduation. As you can imagine, the cuisine was one of the highlights of the trip. We spent a week on a catamaran, with a captain and a cook. Anna Maria prepared the most delicious meals using local meats, cheeses, and produce. I loved everything she prepared, but we all agreed that the most amazing of all her dishes was the vegetarian one— Greek stuffed peppers. When we returned home, I was determined to find one that was similar. Since I have a family of carnivores, I found one that could be prepared either with or without meat.

Greek stuffed peppers strike the perfect balance between comfort food and healthy cuisine. These are a flavor-packed meat and rice mixture with chickpeas and fresh herbs. They are dairy and gluten free and can be prepared as a vegetarian dish by simply eliminating meat. The perfect comfort meal includes the Greek stuffed peppers, tzatziki and warm pita bread, and a simple Greek salad.

To make the Greek stuffed peppers, you will need the following ingredients: extra virgin olive oil;1 small yellow onion, chopped; ½ lb ground beef; Kosher salt and black pepper; 1 tsp ground all spice; 2 garlic cloves, minced (or 1 tsp garlic powder); 1 cup cooked or canned chickpeas, drained and rinsed; 1 small bunch fresh parsley, chopped ( about 1 cup packed fresh parsley); 1 cup white rice, soaked in water for 20 to 30 minutes, then drained; 3/4 tsp sweet paprika; ½ cup of diced tomatoes from a can; 2 1/4 cup water; 6 bell peppers, any colors, tops removed and cored; and 3/4 cup chicken broth or water.

To prepare, cook the meat and chickpeas. In a medium heavy pot, heat 1 tbsp of extra virgin oil. Sauté the chopped onions until golden. Add the meat and cook over medium-high heat, stirring occasionally, until deeply browned. Season with salt, pepper, allspice, minced garlic (or garlic powder). Stir in the chickpeas and cook briefly.

To the same pot, add the parsley, rice (which has been soaked in water and drained), paprika, and tomatoes. Stir to combine. Add the water and bring to a high simmer until the liquid has reduced by half. Then turn the heat to low, cover and cook for 20 minutes or until the rice is fully cooked and no longer hard nor too chewy. Taste and adjust seasoning to your liking.

Next, grill the peppers. While the rice is cooking, heat a grill or indoor griddle or skillet over medium-high. Grill the bell peppers for 10-15 minutes, covered, and turning over as needed so that the peppers will soften and gain some color. Remove from heat and set aside to cool briefly.

Preheat the oven to 350 degrees F. As it warms, assemble the bell peppers open-side up in a baking dish filled with 3/4 cup chicken broth or water. Fill each of the bell peppers with the cooked stuffing mixture of

meat, rice and chickpeas.

Cover the baking dish with foil (making sure the foil does not touch the stuffed peppers) and place the dish on the middle rack of your heated oven. Bake for 20-30 minutes.Remove from the oven and garnish with parsley and serve.

I prefer to serve the peppers as a main dish. To serve stuffed peppers as a main dish Greek-style, add Tzatziki sauce and Greek salad for sides.

Tzatziki sauce is easy to make, but good options can be purchased at the grocery store. If I am in a hurry, Fresh Market is my go-to; however, I prefer to make it myself. To make, you will need an English cucumber, kosher salt, 4-5 garlic cloves (peeled), white vinegar, olive oil, 2 cups plain Greek yogurt, white pepper, and fresh dill.

Begin by using a small food processor to finely chop the cucumber. Toss the chopped cucumbers with ½ tsp kosher salt. Squeeze in paper towels to absorb the liquid. In a large mixing bowl, place the garlic (start with 1-2 cloves, then add to taste), ½ tsp salt, 1 tsp white vinegar, and 1 TBS extra virgin olive oil. Mix to combine. Add the chopped cucumber to the bowl and stir in the yogurt, a pinch of white pepper, and chopped fresh dill. Cover and refrigerate for 1-2 hours so that the sauce thickens and the flavors meld. Serve with pita.

We were continually amazed by the salads in Greece. They were fresh and full of flavor. My favorite was the simplest. Combine 1 medium red onion (thinly sliced into half-moons), 4 medium tomatoes (sliced into wedges), 1 cucumber (partially peeled and sliced into half-moons), 1 green bell pepper (cored and sliced into rings), and 1 handful of pitted Kalamata olives into a large bowl. Sprinkle the vegetables with ¾ tsp of dried oregano and a pinch of salt. Add ¼ cup extra virgin olive oil and 2 TBS red wine vinegar then give everything a gentle toss. Top the salad with slabs of feta (I use a 7-ounce block, cut into slabs) and add another ¾ tsp of oregano and enjoy!

We are enjoying this meal as the last meal as a family with a full nest. It is the perfect comfort meal for all of us and should bring back memories of a great trip to one of the most beautiful places in the world. Wish the empty-nesters and the little bird luck!

FOODIE FINDS: THE BEST OF KNOXVILLE FOOD TRUCKS

By: Parker Bohne LMU

Duncan School of Law

J.D. Candidate, 2026

THE AVOCADO TOAST TRUCK

After working as a culinary chef for 32 years, Scott Whittaker thought he was ready for retirement. But when he got the itch to get back into the kitchen, he and his wife came up with a solution: The Avocado Toast Truck, a food truck specializing in gourmet, locally sourced foods.

Scott graduated with his culinary degree in 1992 and has since spent his time travelling the country working as a culinary chef. In 2017, he was on the west coast—specifically, Arizona and California—where he learned the ins and outs of west-coast culinary styles, including avocado toast. As Scott puts it, avocado toast is to the west coast as biscuits and gravy is to the south.

In 2018, Scott found himself in Knoxville, Tennessee, where he noticed a significant hole in the avocado toast market. What avocado toast he could find around the area was just toasted bread with some avocado slapped onto it. It lacked creativity. It lacked inspiration. Fast forward to the fall of 2023: Scott thought he was retiring but ended up opening up The Avocado Toast Truck to fill the avocado toast void in East Tennessee. Now, Scott and Tammy, his wife and business partner, spend their days travelling around Knoxville and surrounding cities to spread their creative, culinary goodness.

Scott prides himself on his use of organic, local produce and fresh, homemade ingredients. He even makes his own sourdough bread—which can be bought by the loaf if you catch the truck at the right time. The menu boasts a variety of options from savory to sweet, with options for breakfast, brunch, or dinner. Scott is constantly pushing the boundaries of culinary creativity— not stopping at just avocado toast—even creating a sweet sourdough bread with coconut milk to complement the sweet treats he puts together.

You can’t go wrong with any decision, especially the New York style pastrami and Swiss sandwich with mustard and fresh sauerkraut piled high on toasted homemade sourdough bread, which was added to the menu in August. And don’t forget dessert with a nice, cold Dole whip soft serve and a fresh-squeezed lemonade to wash it down. Scott’s menu innovations—like the BLT toast with mashed avocado, bacon, tomatoes, hard-boiled egg, feta, and sriracha honey and balsamic glaze— can be found on The Avocado Toast Truck’s social media pages through Facebook and Instagram. But be warned—after you follow them on social media, your stomach will growl every time you scroll past a photo

of one of his delicious new creations.

While The Avocado Toast Truck does have a trailer, as would be expected of any food truck, Scott also sets up a tent next to the trailer to create an open-air kitchen where people can interact with the owners while waiting for their toast, sandwich, or fresh-squeezed lemonade. To keep up with where Scott, Tammy, and The Avocado Toast Truck will be daily, check out their Facebook page or Instagram profile. They post schedules there regularly, so you know exactly where to track down some of that yummy toast.

BENCH AND BAR IN THE NEWS

How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to membership@knoxbar.org.

KBA MEMBER SHOUT OUTS

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.

FREE CLASSIFIEDS AVAILABLE

Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates? Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource.

LEGAL HISTORY VIDEOS AVAILABLE

In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville

Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources.

Address Changes

Please note the following changes in your KBA Attorneys’ Directory and other office records:

David J. Cantrell

BPR #: 039296

Clayton Homes

5000 Clayton Road

Maryville, TN 37804-5550

Ph: (865) 380-3000 david.cantrell2@claytonhomes.com

John B. Ganem

BPR #: 039264

Law Office of John B. Ganem, PLLC P.O. Box 12009 Knoxville, TN 37912-0009 Ph: (865) 353-3807 johnganemlaw@gmail.com

Christine Knott BPR #: 038487

Volunteer Law PLLC 112 Glenleigh Court, Suite 4 Maryville, TN 37934-3076 Ph: (865) 410-0818 christine@volunteerlawfirm.com

Zachary T. Powers

BPR #: 036291

Volunteer Law PLLC

112 Glenleigh Court, Suite 4

Maryville, TN 37934-3076

Ph: (865) 410-0818

zachary@volunteerlawfirm.com

Nikol D. Pluess

BPR #: 038605

Vermillion Law

416 High Street

Maryville, TN 37804-5836

Ph: (865) 233-3353 np@vermillion.law

WELL READ

By: Joan McLeod Heminway

Rick Rose Distinguished Professor of Law University of Tennessee College of Law

FEAR: ESSENTIAL WISDOM FOR GETTING THROUGH THE STORM, BY THICH NHAT HANH

We all have it. It’s uncomfortable. It’s not a feeling we commonly seek out.

So, why voluntarily read a book principally entitled Fear? It certainly seems counterintuitive. And what might fear have to do with lawyer wellness, the subject of this month’s DICTA? I wondered. But the book was recommended to me, and the leader of an online meditation group I frequent read a passage from it that resonated. So, I held my breath and jumped into reading it.  I am glad I did.

In Fear, author and Buddhist Zen master Thich Nhat Hanh urges us, from the outset, “to acknowledge our fear and look deeply at its source.” Only then, he suggests, can we achieve happiness. This sounds great, but it seems more easily said than done.

Fear is about taking a mindful approach to what we are afraid of. “The practice of living fully in the moment—what we call mindfulness—can give us the courage to face our fears and no longer be pushed and pulled around by them.” Indeed, fear can be seen as the antithesis of mindfulness: it drags us into ruminating over the past and anxiety about the future, rather than focusing us more simply on the here and now.

The book has evident relevance to lawyers. Professor John Lande observed ten years ago that lawyers can live in a figurative prison of fear. “Lawyers,” he wrote,

are not literally detained in custody by one of their emotions and they cannot evade fear as simply as exiting a building. But some lawyers’ fears unnecessarily prevent them from performing well, producing good results for clients, earning more income, and experiencing greater satisfaction in their work. Lawyers who can manage their fears effectively are likely to do better than those who do not manage their fears as well.1

Professor Lande illustrates the fears of lawyers in the introduction to his article by listing lawyering environments in which fear arises and highlighting specific fears relating to negotiation, a task in which practicing lawyers regularly engage, regardless of whether their work involves counseling on transactions, litigation, compliance, or other undertakings. He indicates that fear has positive attributes but (as the quote above indicates) also can be an impediment to the effective, ethical practice of law.

In his article, Professor Lande outlines the psychology of fear in and outside the legal profession and offers ways of dealing with five fears. He mentions mindfulness and cites to relevant source material in several places. Ultimately, he concludes by offering that “lawyers, legal educators, and bar association officials should not seek to eliminate all the things that lawyers fear but rather to promote constructive methods of dealing with fears.” In Fear, Thich Nhat Hanh picks up this thread to offer lawyers (and others) ways to productively address their fears.

The book offers specific advice on how we can mindfully face fears associated with the past and the future. He also offers general encouragement toward mindfulness practice. He begins the chapter entitled “The Power of Mindfulness,” by noting that “[e]very one of us has the capacity to be mindful, focused, understanding, and compassionate.” The beginning of the chapter specifically suggests breath awareness as a way to turn inward and confront fear, observing that, by turning inward, “you get in touch with the outside too.”

But breathwork and meditation (common mindfulness practices) are not the only ways to achieve mindfulness. Thich Nhat Hanh also mentions mindful walking, tea drinking, and more. Mindfulness is merely a practice of focused awareness; it brings what he calls “the energy of concentration.” He also observes that mindfulness is portable—always with us—expressly likening it to our omnipresent cell phones! (I got a good chuckle out of that observation.)

Being mindful involves both stopping and looking deeply. Lawyers seem to have an especially tough time slowing down—no less stopping. (I am looking in a virtual mirror as I write that.) And the high speed of activity in our modern world often encourages people, lawyers included, to act on assumptions rather than undertaking to understand through more comprehensive examination. Thich Nhat Hanh asserts that by stopping and looking deeply, we can achieve greater knowledge and clarity. I have found this in my own regular mindfulness practices, which include yoga, meditation, and breathwork.

Some of you may find the advice in Fear, as described by me here, to be a bit too woo-woo. My advice is to not knock it until you have tried it. And by “it” I do not mean trying one mindfulness activity and, based solely on that experience, giving up on mindfulness because you find it inaccessible or unhelpful. Strive to find your individual capacity to bring yourself to the present moment, leaving the past and the future to another time. That may mean attempting and discarding many mindfulness practices along the way. Thich Nhat Hanh provides the following reflections in the chapter “Calm in the Storm:”

When we have a strong emotion like fear . . . it can be overwhelming. But with practice, we know we can learn how to embrace our fear, because we know that in each one of us there is the seed of mindfulness. If we practice touching that seed every day while walking, sitting, breathing, smiling, or eating, we cultivate that energy of mindfulness. And then anytime we need that energy, we just touch that seed, and right away the energy of mindfulness will come up and we can use it to embrace our emotions.

These words summarize the core of Thich Nhat Hanh’s Fear. It is a short book, and it may have great impact on your life and practice. Pick it up and read it!

1 John Lande, Escaping from Lawyers’ Prison of Fear, 82 UMKC L. Rev. 485, 492 (2014).

PRO BONO SPOTLIGHT

By: Caitlin A. Torney Director of Pro Bono Legal Aid of East Tennessee

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

PRO BONO VOLUNTEER WORK –AN ANTIDOTE TO BURNOUT

Attorneys face constant challenges, long work hours, and difficult cases. Negotiating the demands of clients and legal obligations, social and family responsibilities, and physical health is an ongoing balancing act. Far too often, we neglect our mental and emotional well-being and in doing so risk burning out. Professional burnout is characterized by symptoms of exhaustion, cynicism, and decreased efficacy and job satisfaction. Burnout can affect multiple aspects of a person’s life beyond just their job performance including mental and physical health, relationships, and overall well-being. However, a great solution is readily available: pro bono volunteer work! In addition to its community impact, pro bono volunteer work can significantly enhance the mental and emotional health of attorney volunteers and provide a renewed sense of professional satisfaction.

Stress Relief and Enhanced Mental Health

Pro bono volunteer work offers attorneys a great way to alleviate stress. Participating in altruistic activities can trigger the release of endorphins, which naturally reduce stress and anxiety. Multiple studies have demonstrated that individuals who volunteer experience decreased levels of depression and an overall improved sense of well-being.

Legal volunteer work also offers attorneys a chance to find purpose beyond their own day to day legal career. Volunteering at a clinic can provide the immediate satisfaction of directly and concretely addressing an individual’s legal problem in the moment. So many legal professionals engage in work that is drawn out over long periods of time, but volunteering at a clinic provides a sense of immediate satisfaction and often positive feedback from relieved and grateful clients.

New Social Connections and Professional Networking

Engaging in legal volunteer work not only benefits the community but also expands attorneys’ social circles. Interacting with individuals beyond the legal realm exposes attorneys to new perspectives, ideas, and networks. These connections can lead to personal growth, offer support during challenging times, and even provide avenues for professional opportunities. Many of our legal clinics include partnerships with local service providers and community support organizations like the YWCA of Knoxville and the Tennessee Valley, the McNabb Center, the Knoxville Area Urban League, area churches, and senior living and support organizations. Volunteering at clinics or taking cases with LAET clients can provide you with the opportunity to interact directly with social workers, advocates, and community workers who can help broaden your social and community horizons and reaffirm community ties. For attorneys, who often experience isolation due to the demands of their profession, the sense of belonging fostered by legal volunteer activities can be particularly impactful. More experienced, established

attorneys can also volunteer to serve as a mentor or resource for newer volunteers. This is a wonderful way to not only nurture your community but your profession by helping new attorneys gain the skills and confidence to grow their practice and take on new areas of law both as volunteers and as professionals.

New Skills and Enhanced Resilience

Legal volunteer work presents attorneys with opportunities to develop and refine their skills. Whether it’s communication, leadership, or problem-solving, engaging in legal practice outside the normal scope of your practice enhances adaptability and versatility. Furthermore, volunteering exposes attorneys to challenges that differ from those encountered in their daily work, fostering increased resilience and the ability to handle diverse situations.

A great way to take advantage of this aspect of pro bono volunteering is to pick an area of law that wholly differs from your dayto-day practice. Doing the same thing day after day inevitably becomes monotonous and can decrease your professional satisfaction. LAET has a wide range of pro bono cases that need placement for full representation ranging in scope from family law issues to probate, estate planning to bankruptcy. We also have an extensive collection of documents, pleadings, and other templates we can provide as well as links to training materials and professional mentors to support attorneys exploring new practice areas.

Conclusion

We work in a stress-filled profession and a lot of us struggle to balance the demands of our work and personal life. Pro bono volunteer work not only benefits the community but enhances the mental wellness of attorneys. Through stress alleviation, enhanced mental health, social cohesion, skill development, and increased resilience, legal volunteer activities offer attorneys a holistic approach to maintaining a balanced and healthy life. By engaging in pro bono volunteer work both at clinics and through full case representation, attorneys can counteract stress, mitigate burnout, and regain a sense of purpose.

There are many ways to volunteer with the Pro Bono Project at Legal Aid of East Tennessee. Browse our Pro Bono section on our website www.LAET.org to find cases currently available for full representation; we update it regularly! Check out our upcoming events section to see clinics across our service area or check out the KBA’s website and emails for clinic opportunities in the Knoxville area. Finally, email or call me directly at ctorney@laet.org or 865-251-4951. We welcome all volunteers and are eager to find a way you can volunteer your time and skillset that works best for you!

Upcoming Clinic Opportunities

Legal Advice Clinic for Veterans: In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. Phone advice options available. To sign up, please use form on the KBA website or email ctorney@laet.org.

• Wednesday, October 9 Noon – 2:00 PM. • Wednesday, December 11 Noon – 2:00 PM

Health Care Power of Attorney Clinic with the TBA Health Law Section: In person at the Knoxville Academy of Medicine at 9032 Cross Park Dr in Knoxville. Email ctorney@laet.org. • Saturday September 21st 9AM – Noon.

Virtual Pro Se Name Change Clinic: Zoom. Email ctorney@laet.org. • Tuesday, October 15 4:30 PM – 5:30 PM

THE BOXES

I’m standing in the Red Rocks Amphitheatre outside of Denver, Colorado, writing this column in my head. My favorite band is playing (Mt. Joy) as I sway back and forth with my wife, Nancy. I am well. My wellness is good. After a DICTA career that spans subjects like loss, love, tattoos, and Golden Retrievers, I suppose someone at the KBA thought I was qualified to write about wellness. Although I’m “well” at this moment, I don’t think it is my default mode. It’s not yours either.

The subject of mental health in the practice of law seems to have risen in prominence over the last few years. Mental wellbeing has even found its way into law school classes. I was recently asked by Lincoln Memorial Associate Dean and Professor of Law, Melanie Reid, to speak to the 1L class about self-awareness in a class called The Successful Lawyer. The students were required to participate in a self-awareness assessment, and I was asked to be transparent and vulnerable in my remarks about my own life. Just when I was trying to cut back. Before I was introduced, the class participated in a meditation exercise. I’ve never seen this in a law school setting. I immediately tried to imagine Professors John Sobieski and Joe Cook leading meditation before class in 1994. Hilarious. Times are a-changing.

I’ve always thought it difficult for lawyers to grasp the meaning of good mental health since we are all fundamentally unwell to begin with. What kind of nut would sign up to take on the usual expectations of an employer (or partners) and add on the problems of clients, the dictates of federal, state, and local rules, court-imposed deadlines, and the expectations of the judiciary (there’s always a judge judging)?! To get the job you have to slog through three years of competing with highly intelligent people in an academic war and sit for one exam that determines if you get the privilege of taking it all on. Yep, you are a little off. Me, too. No one can prepare you for this profession. Law school is an education in LAW, not in practicing it. School doesn’t teach you (or at least it didn’t) how to handle the emotional roller coaster of the pressures involved. We are the insane people pacing the floor and talking to ourselves while practicing our closings. We are confident, yet insecure. We wake in the middle of the night to make notes or read emails. We are expected to be certain in the face of uncertainty and appear fearless with the fear of failure running beneath the surface like the Ocoee River. Or am I just describing me? As far as professions go, you’ve seen the statistics - we are the most likely to be depressed, addicted, and unfaithful. We are a mess.

By the time Dean Reid introduced me, I felt like a spiritual leader or a version of Tony Robbins. So, as I once again put on my robes before imparting my keys to personal well-being, keep in mind that I am a fake. I’m an empath in a world where my clients have suffered tragedy and loss. Great idea, Robbie. Don’t listen to the lawyer jokes. Some of us are dying with each potential client we interview. By the time I get to the dog park every evening, I’ve teetered between anger and sadness for 7 hours or more. So, with that disclaimer in hand, let me bless you with 3 of my

OUTSIDE MY OFFICE WINDOW

By: Robbie Pryor Pryor, Priest & Harber

strategies for maintaining the juggling routine:

1. Compartmentalizing (the boxes). There are boxes on a shelf in a closet. They are labeled. The closet is not an actual closet. It’s in my head. The boxes have labels like family, spirituality, health, friends, office/profession, clients, and Nancy. I vow not to think about other boxes when I have one down off the shelf. I’m at my best when, during the course of the day, I bring down each of the boxes. Balance. On subjects like family, friends, and office/ profession, my focus is on making connection. I strive to make these people feel valued. First, I truly value them. Second, making it known makes me feel good about…me. I need to make them feel valued. The people I work with are amazing. They make me who I am and bring my firm honor. I need to tell them more through words and actions. And, yes, I include opposing counsel and their clients in this group. I want to make connections with everyone who comes into my path. It doesn’t always work (it’s hard for me to convince a doctor of his value when I’ve sued him), but I still try to connect. I have a large family. Keeping up, especially with my children, is a priority. When I take down that box, I text and call. I send pictures of my dog with messages of love to them. This is our love language. The one box I never put on the shelf is Nancy. If that isn’t working on all cylinders, none of the rest matters. We all need that. It could be a spouse, a friend, a parent, sibling, or pet, but we all need a flower to water, a relationship to ground us. Discipline in relationships is vital to survival and peace in this profession.

2. Give the Critic an audience. I believe each of us is made of two entities - you and your Critic. He or she sits on your shoulder and criticizes your movements and decisions throughout the day. “You are a bad son because you didn’t tell your mom about your tattoo,” says the Critic. You must never believe everything the Critic tells you, but you must listen. Don’t discount what he says. He makes you better as long as you don’t listen to it all. I need to tell my mother this week.

3. Have a “you” that excludes all others. Maybe you have a hobby. You must have something you love beyond family and this profession, and you must make time to immerse yourself in it. I love music and writing. Music was a gift from my father. There was always music in my house. From Motown to Hank Williams, Disco to Elvis Presley, and comedy to the Eagles. Red Rocks. Mt. Joy. Take a deep breath and make a playlist. Listen. Explore.

Above all, my fellow inmates, remember we all have a last day, and that we usually don’t see it coming. I’m reminded every time I see a KBA Memorial notification. Find something in each moment because, as Mt. Joy sings in “Bathroom Light,” someday we “must return the movies in our brains, and these moments we can’t fake. Yes, the angels never leak the expiration date…” Good luck out there, fellow warriors!

LEGISLATIVE COMMITTEE BREAKFAST & CLE

Join us for our first ever “Breakfast & Learn” with the Knox County legislative delegation! You’ll have time to network with your elected representatives and colleagues over breakfast before a 30-minute CLE focusing on recent key legislation and a forecast of things to come next session.

With Special Guests