Memphis Lawyer Magazine Vol. 37 Issue 3 by Memphis Bar Association

the magazine of the Memphis Bar Association | Vol. 37, Issue 3, October 2020

Bar Unity March THIS ISSUE:

A VIEW FROM THE BALCONY - BUT NOT REALLY A CLERB With Teeth Subpoena Power Is Irrelevant

The Realities of Diversity in the Legal Profession

MEDIATION: (Noun) An

intervention between conflicting parties to promote reconciliation, settlement, or compromise. Example in a sentence:

Attorney Lisa J. Gill assisted my client in coming to an agreeable Settlement with their ex-spouse, without the emotional and financial expense of the courtroom experience. Lisa J. Gill is a partner and attorney at Thomas, White & Gill and is a certified Rule 31 mediator.

memphisfamilylaw.com 901-537-0010

Volume 37, Issue 3, October 2020

FEATURES 6

Bar Unity March

A View from the Balcony - But Not Really

BY SHAYLA NICOLE PURIFOY BY HARRISON D. MCIVER III, ESQ.

11 A CLERB With Teeth

Subpoena Power Is Irrelevant BY STEVE MULROY

13 Equal Justice Under Law: Reforming our Criminal Justice System BY CONGRESSMAN STEVE COHEN

16 The Realities of Diversity in the Legal Profession BY PROFESSOR DEMETRIA FRANK

19 The Irony of Filing Motions to Dismiss with Prejudice BY DARYL J. SMITH

Team MBA Runs for St. Jude

The Time is ...

BY EARLE SCHWARTZ

BY JUDGE STEVE HORNSBY

31 Tax Planning for 2020 with an Eye Toward 2021 BY PERRY GREEN

COLUMNS 5

Presidentâ&#x20AC;&#x2122;s Column BY LUCIE BRACKIN

25 CLC: DACA Limbo During COVID-19 Health Crisis BY LUCY BOATENG

19 MALS at 50: Still Serving Justice for All BY DIANE VESCOVO & MIKE MCLAREN

Circuit Court Report

United States District Court

People in the News

BY STEPHEN LEFFLER

BY DEAN DECANDIA

39 Classifieds

MEMPHIS LAWYER

2020 MBA Officers

the magazine of the Memphis Bar Association

MBA Publications Committee Sean Hunt, Chair Jacob Strawn, Vice Chair Peter Gee, Executive Committee Liaison Preston Battle Karen Campbell Dean DeCandia Chasity Grice Nicole Grida Stephen Leffler Kendra Lyons Harrison McIver Jared Renfroe Faith Sanford Andrew Shrack Jennie Silk Richard Vaughan Ellen Vergos Christy Washington

The Memphis Lawyer is a quarterly publication of the Memphis Bar Association, Inc. with a circulation of 2,000. If you are interested in submitting an article for publication or advertising in an upcoming issue, contact Kelly Swan, Communications Director, at 901.527.3573 or kswan@memphisbar.org. The MBA reserves the right to reject any advertisement or article submitted for publication.

The Memphis Bar Association 145 Court Ave. Suite 301 Memphis, TN 38103 Phone: (901) 527-3573 Fax: (901) 440-0426 www.memphisbar.org

Lucie Brackin President

Peter Gee

Vice President

Tannera Gibson

Secretary/Treasurer

Annie Christoff Past President

2020 Board of Directors Dawn Campbell Hon. Frank Cantrell M. Ruthie Hagan Hon. JoeDae Jenkins Adam Johnson Andrea Malkin Matt May Patrick Morris Jennifer Nichols Will Perry Hon. Shayla Purifoy Terrence Reed Maggie Roney Billy Ryan

Jennifer Sink Lauran Stimac Laquita Stokes Josh Wallis Christy Washington Estelle Winsett Section Representatives Laurie Christensen Anne Davis Forrest Edwards Robbin Hutton Laura Mason Jill Shirley

ABA Delegate Lucian Pera AWA Representative April Bostick Law School Representative Donna Harkness NBA Representative Tiffany Webber YLD President Sarah Pazar Williams

MBA STAFF

Maury Tower

Interim Executive Director

Lauren Gooch Membership & CLE Director

Dâ&#x20AC;&#x2122;Onna James Project Coordinator

Kelly Swan

Communications Director

PRESIDENT'S COLUMN

By LUCIE BRACKIN, MBA President

he accomplishment I am most proud of this year has been the commitment the MBA has made to raise awareness of and combat the racism that continues to exist in our society today. At the beginning of the year, Ben F. Jones chapter President Shayla Purifoy, AWA President Megan Lane and I wanted to strengthen the relationships between our organizations and we planned the first annual Bar Mixer. Prior to the pandemic, we envisioned joint CLE’s and social events. Those plans, of course, came to a screeching halt after March 18, 2020. The death of George Floyd was a wake-up call to systemic racism that could not be ignored any longer. When President Purifoy contacted me about a joint Bar Unity March, we began carefully planning our public statement of solidarity. Read more about this unprecedented event on page 6. We knew, though, that this one-time effort would not be enough to make a difference in the fight against systemic racism and implicit bias. The MBA’s “Law Week and Outreach” Committee was transformed into the “Outreach and Diversity” Committee. Led by Co-chairs Danielle Irvine and Patrick Morris, and fueled by a strong and robust committee, they have promptly and timely undertaken every request made of them. We issued a press release in support of DNA testing in the case of Pervis Payne, published a comment in support of requiring 2 hours of diversity training with our CLE requirements, and began

the 21-Day Racial Equity Habit Building Challenge © on October 1, 2020. It is not too late to sign up for the challenge, if you have not already. Each day comes with a task that will take about 15-30 minutes. The tasks consist of articles, podcasts, and videos that challenge the way white people think about, and talk about, racial issues. For our first (and hopefully only) virtual Bench Bar Conference, one of our featured speakers is attorney Janice Brown from San Diego, who will speak on understanding the economic advantages of embracing diversity. The conference will take place on the afternoons of October 13, 14 and 15, 2020 with a kickoff party in the courthouse courtyard on Thursday, October 8, 2020. Co-chairs Adam Johnson and Hon. Bobby Carter, along with vice-chair Matt May, have done a wonderful job of planning their second conference of the year, and we have 14.5 hours of CLE credit for only $150 (or $75/day). In partnership with Buster’s, we will offer a virtual wine tasting on Wednesday, October 14, 2020. On Thursday, October 15, 2020, at The Slider Inn downtown, we will have a Shred415 outdoor exercise class, followed by happy hour sponsored by BankTennessee and Dixon, Hughes, Goodman, LLP. Please visit our website for more details, and sign up for the conference. This event will be the only revenue generating event for your bar association this year, and we very much need your support.  5

Bar Unity March By SHAYLA NICOLE PURIFOY, 2020 President of the Ben F. Jones Chapter of the National Bar Association

s you approach the jury room in Giles County, Tennessee, you may notice the entrance door decorated with the words, “United Daughters of the Confederacy,” complete with the United Daughters of the Confederacy emblem. Inside the jury room, there is an original Confederate flag and a portrait of Jefferson Davis (slave owner and President of the Confederacy during the Civil War), among other relics. This jury room sits on August 14, 2020—not 1865 nor 1968—as a reminder that at one point in time the subjugation, dehumanization, and debasement of an entire race of people was tolerated and legal. Giles County is also infamous for the formation, in a law office in 1865, of the first chapter of the Ku Klux Klan, of which Nathan Bedford Forrest was its first Grand Wizard. Just a few hours from Giles County, statues of Nathan Bedford Forrest and Jefferson Davis stood in Memphis until 2017, when attorneys Van Turner and Bruce McMullen successfully had them removed.1 We all have stories—some from family oral history, some from childhood, some from college and some from now. The Ben F. Jones Chapter of the National Bar Association started informally in 19602 to “gather legal knowledge and create a sense of community and camaraderie among the small number of AfricanAmerican attorneys in Shelby County at that time.” Initially, the group started as informal mentorship meetings by the Honorable H.T. Lockard, James Estes, S.A. Wilbun, Ben F. Jones and Rev. Dr. Benjamin Hooks3 —“the first five.” These five luminaries gathered because African American attorneys in Memphis were not welcome to join the local bar association, which was segregated, at the time. African American lawyers experienced heightened scrutiny while practicing in court. It was common for some attorneys and judges to refer to African American attorneys by their first name rather than giving them proper respect of last names. Some may think these things happened light years ago, but this ill treatment toward African Americans was the 6

norm just over 50 years ago. And as a poignant reminder that racial progress has its ebbs and flows, the jury room in Giles County remains the same in 2020. Faced with a new civil rights movement in 2020, we have a choice to make. We may follow in the footsteps

of the “first five,” or we may be silent. We, as attorneys and judges, have an ethical obligation to ensure that our legal system provides justice for all4 and that our officers of the court promote equality within the bar and outside of it. Our community cannot have confidence in the legal system if we are silent. We may take direction from the Tennessee Supreme Court: “[r]acism still exists and has no place in our society. Upon entering service in the judiciary, we swore to uphold the constitutions of the State of Tennessee and the United States. Thus, it is our moral obligation and our sworn duty to ensure that the people of Tennessee receive equal protection of its laws. Justice must be for all.5” When the Ben F. Jones Chapter held our board retreat at ALSAC/St. Jude6, in early January 2020 (post early morning windstorm), we brainstormed ideas for the year ahead. We planned extensively—each meeting, event, and CLE had its proper place, time and date. Then, just like that, none of that planning mattered. One of our plans for the year was to unify all the bar associations and legal organizations in a unity summer social mixer in the courtyard of the Judge D’Army Bailey Courthouse. We were going to bring in a band, serve lots of food, and invite judges, law students and lawyers. The goal was to network, cross-promote our associations, and really bring everyone together. As MBA president Lucie Brackin and I promised at our joint Black History CLE in February, we were going to work together. Then came the unexpected—the pandemic. Although we would no longer plan an event where everyone smiled and exchanged pleasantries, we did not realize that we would have one of the most collaborative years of recent history, in the face of a pandemic. Scared, confused, and exhausted by Covid-19, we knew we could not socialize together. Inspired by the new civil rights movement, the question became, what can we do? What if we march together instead of drink lemonade together? What if we show our community and our lawyers that we are committed to working together and that we believe a just legal system must also be against racism? And that is exactly what we did.7 In the middle of a pandemic, each and every one of us

put on a mask and we unified against racism at the first ever Bar Unity March. Within about two weeks, the Ben F. Jones Chapter, the Memphis Bar Association, and Association for Women Attorneys all worked together to organize.8 The Young Lawyers’ Division of the MBA helped make signs and provided march monitors. We marched in the Memphis heat— not for hours like the freedom fighters who marched before us, but we marched nonetheless. Judges, lawyers, law students, and families marched together. Attorneys of all backgrounds— public defenders, prosecutors, employment lawyers, criminal defense, civil rights, and personal injury—all marched together. Some attorneys posted on social media in support (social distancing, but reaching even more people), some marched, some stood, some made signs, some kneeled. It was a collaborative effort. Some judges had moments of silence in court, some stepped outside the courthouse in support, others marched, and Juvenile Court released a statement—meant to be read on the courthouse steps as we marched by. We exchanged pleasantries, and we drank lots and lots of water.9 But most importantly, we marched together, and our footsteps marked our agreement and pathway to change. On June 24, we made a choice to march and to work together until real change happens. Until the relics of the past no longer fly in our faces in spaces meant for all— parks, jury rooms, schools, and courthouses—and until diversity and treating everyone with kindness and equality are the norms, we march together. There is 7

unity in diversity and where people unite, justice may be achieved. As the Honorable Tennessee Supreme Court so eloquently quoted the State Seal of the Judiciary, “Let justice be done, though the heavens fall10.” And now we are in the middle of the next steps. The Ben F. Jones Chapter has convened a Legal Justice Task Force and will continue to work with the MBA to ensure our legal system and legal community provides justice for all. Our Chapter will continue to stay involved, encourage pro bono work and do what is needed to ensure that our legal system and community are just, equal and diverse. Our Chapter is tirelessly working

via the Legal Justice Task Force (chaired by Latrena Ingram and Kimkeá Harris), community service/ pro bono non conviction expungement clinic efforts (under Amber Floyd’s leadership), voter protection (led by Van Turner), law student outreach and alliances to make sure we are all promoting fairness within the legal system and within our legal community. Join us at our virtual Barristers’ Ball, November 7, for A Night of Good Trouble: Honoring Our Freedom Fighters and Continuing the Pursuit for Justice (planning chair, Quinton Thompson). We are going to make it through this together and for the better. 

See, “Remains of Confederate General Nathan Bedford Forrest and his wife will be removed from a Memphis park,” CNN, Melissa Alonso, Amanda Jackson, May 13, 2020.

“In 1966, the Ben F. Jones Chapter of the National Bar Association was officially formed, with the help of Johnny Johnson. The Chapter was so named to commemorate the founding member who had passed away suddenly that same year. Today, the chapter is composed of more than 300 attorneys in Memphis and Shelby County. The Ben F. Jones Chapter is an affiliate chapter of the National Bar Association, the oldest and largest association of attorneys of color in the world. Founded in 1925, the NBA is currently headquartered in Washington, D.C. The association has 88 affiliate chapters and represents over 20,000 lawyers, judges, and law students globally.” (The Ben F, Jones website “history” section at http://benfjones.com/about-us/ history/)

See the Ben F. Jones website under “history” section at http://benfjones.com/about-us/history/.

“Tennessee Supreme Court Issues Statement on Commitment to Equal Justice,” The Tennessee Supreme Court, Tennessee State Courts, June 25, 2020, TNCOURTS.gov.

Thank you to AC Wharton and Sara Hall at ALSAC for hosting the Ben F. Jones Chapter winter planning retreat.

LENS & LINES: Legally speaking — racism has got to go!, The New Tri-State Defender, TSD News Room, June 24, 2020, https://tri-statedefender. com/lens-lines-legally-speaking-racism-has-got-to-go/06/25/?fbclid=IwAR3FOz8eiTQLOJ36_wz98K2AdRLcaw2Jm2Y6Q-Q3xW9kkPTlaUwE_ NRksTE Memphis attorneys march against racism in legal system, community, Daily Memphian, Yolanda Jones, June 24, 2020, https://dailymemphian.com/ section/metro/article/15063/memphis-attorneys-racism-ben-f-jones-national-bar-association-memphis-bar-association-association-for-women-attorneys Lawyers march through downtown Memphis during Bar Unity March, Commercial Appeal, Max Gersh, June 24, 2020, https://www. commercialappeal.com/picture-gallery/news/2020/06/24/lawyers-march-through-downtown-memphis-during-bar-unity-march/3250337001/; MidSouth attorneys come together for march against racism, Local ABC 24 News, Jaylyn Souchek, June 24, 2020, https://www.localmemphis.com/article/ news/local/memphisunitybarmarch/522-2c003011-c419-4a03-9abb-4d458994f9f3; I applaud members of the legal community for making their voices heard, Local ABC 24 News, Otis Sanford, June 25, 2020,https://www.localmemphis.com/article/opinion/otis-sanford-point-of-view-memphis-barunity-march-legal-profession/522-521a07e2-187b-4f4b-ae90-b21c163c4953

Participants included Tennessee Bar Association, Young Lawyers’ Division, Association for Women Attorneys, Shelby County District Attorney’s Office, The Tennessee Trial Lawyers Association, Leo Bearman, Sr, American Inn of Court, Center for Excellence in Decision Making, University of Memphis Cecil C. Humphreys School of Law, Law Office of the Shelby County Public Defender, The Cochran Firm of the Mid South, and the NAACP Memphis.

Thank you, Bank Tennessee and the Leo Bearman, Sr. American Inn of Court for providing water to everyone.

“Tennessee Supreme Court Issues Statement on Commitment to Equal Justice,” the Tennessee Supreme Court, Tennessee State Courts, June 25, 2020, TNCOURTS.gov.

A View from the Balcony - But Not Really

By HARRISON D. MCIVER III, ESQ. CEO Emeritus, Memphis Area Legal Services, Inc.

he past one-and-a-half years have afforded me more time to reflect on where we are as a community and a nation. Retiring from Memphis Area Legal Services (MALS) as its CEO presents me a unique opportunity to share a perspective that is more open and candid. While there, I was always careful not to cause any adverse implications to MALS. During this period (until the recession of 2020), we witnessed records set on Wall Street that made a lot of money for a lot of people. But, left behind were members of our society who were disproportionately people of color, along with others who lived at the margins. In 2020, two pandemics struck our country COVID 19 and racial inequality. The latter became front and center with the murder of George Floyd, although race is also a factor in the mortality rate of those who contract this dreaded disease. The pandemic revealed systemic inequities and structural racism reflected in how this disease ravished people of color due to comorbidities occasioned by the lack of quality health care, housing, employment, a nutritious diet and other factors. Permit

me to pause to applaud the untiring and relentless efforts and sacrifice of front-line heroes who provide medical care and other necessities during this unprecedented crisis. In the midst of reeling from COVID 19, we watched in horror George Floyd’s death by a Minneapolis police officer’s knee on his neck while he cried out, “I can’t breathe.” Social media capturing this horrific event precluded any reasonable debate of anything but murder. Other Black Americans who died at the hands of law 9

enforcement were Breonna Taylor, Atatiana Jefferson, Aura Rosser, Stephon Clark, Philando Castille, Alton Sterling, Freddie Gray, Eric Gardener, Tamir Rice and Rayshard Brooks. The list is far from exhaustive. Statistics from 2014 to 2019 reveal that 25% of those killed by law enforcement were Black, although Blacks only comprised a little over 13% of the overall population. The death of George Floyd catapulted “Black Lives Matters” onto the national stage, although it had been around for years following other law enforcement-related deaths of Blacks. The outpouring of condemnation was appropriate and swift. Peaceful and non-violent protests erupted not only in this country but around the world. A child of the 60’s, I grew up when segregation was being dismantled - precipitated by peaceful protests, marches, sit-ins, and the like. These actions raised the conscience of America leading to the unraveling of America’s form of apartheid. During that period, whites and others joined “demonstrations” but in relatively small numbers. Unlike then, the outpouring of support under the aegis of “Black Lives Matter” in the wake of Floyd’s death is more profound. Even more impressive are the participants. Young people of all races and ethnic groups are committed to having an America that lives up to the tenets of equality, fairness and justice. Just a few blocks from my home in Midtown, I was moved to see predominantly young white protesters carrying signs stating “Black Lives Matter.” In speaking with some of my white acquaintances, some just do not get it. They view “Black Lives Matter” as a repudiation that other lives do not matter. They fail to understand that Black (and Brown) Americans are especially susceptible to mistreatment and even death at the hands of law enforcement. Just ask your Black male friends if they have received the “talk.” My parents sat me down at an early age and lectured me on how to survive if and when stopped or questioned by law enforcement. We were told “Don’t challenge or argue, even if the stop is unjustified. Remain in your car, keep your hands on the steering wheel and ask permission to produce your license, insurance or car registration.” I personally have had to employ such survival tactics. I have two young

biracial grandsons, Black and Mexican American, with whom I or their parents will have the “talk.” “Black Lives Matter” is more than just about encounters with the law enforcement but achieving economic, political and social justice. It’s about causing each of us to think, recognizing and acknowledging our biases by taking an introspective view that causes modified behavior in decision-making. I did so often during my 20-year tenure as CEO of MALS. I had to confront behavior that revealed biases by some staff, board and people of goodwill. The challenge: it is never too late to invest in becoming the person we all aspire to be. That’s the challenge all of us should embrace in our daily lives. In closing, I was only figuratively in the balcony. In retirement I have been engaged in responding to the issues and challenges of the day. One example is my serving on the Tennessee Bar Association‘s Diversity and Inclusion Task Force. All members of the legal profession who believe in the rule of law should “come down from the balcony,” for the consequences are too great to sit on the sidelines. What is happening is beyond politics because the soul of this nation - our democracy - is at stake. We have witnessed our national elected leaders engage in behavior that seeks to divide our nation based on race, gender, ethnicity and religion. Dr. King reminded us that the “arc of the moral universe is long, but bends toward justice.” We have the responsibility to ensure that the arc continues to bend toward justice and not break in the face of the narrative of racism, bias and voter suppression. Each of these actions demeans life in favor of political and economic gain. We recently lost a true giant in the passing of Congressman John R. Lewis, who in the face of his impending death visited Black Lives Matter Plaza in our nation’s capital. He challenged us to care for one another and to work to ensure that each of us reaps the benefits of America, and if not, to “never, ever be afraid to make some noise and get in good trouble, necessary trouble.” I will; will you? 

Harrison D. McIver III was CEO of MALS for more than 20 years, and a national, state and local leader and advocate for justice in the equal justice community for more than 40 years. 10

A CLERB With Teeth

Subpoena Power Is Irrelevant By STEVE MULROY

In this climate of heightened interest in police reform, people on almost all sides acknowledge (or pay lip service to) the utility of civilian oversight. True independent oversight is essential to curb police abuses regarding excessive force in particular and over-policing in general. Here in Memphis, we have such oversight, but in name only. A broad consensus for improving this situation has gotten sidetracked on the largely irrelevant issue of subpoena power. It’s widely recognized that our Civilian Law Enforcement Review Board (CLERB) is powerless. CLERB is made up of well-regarded attorneys, clergy, medical professionals, persons with law enforcement backgrounds, and community leaders appointed by the Mayor and confirmed by the City Council. It is supposed to investigate citizen complaints about law enforcement in a wide variety of matters—not just excessive force, but search and seizure, and even disrespectful demeanor. It can recommend both disciplinary action as well as policy changes. But CLERB has no ability to require MPD to provide documents or testimony, and MPD rarely cooperates. CLERB makes recommendations for discipline in individual cases, and changes to common practices, which routinely go ignored by MPD. The late Rev. Ralph White, former CLERB chair of the board, called CLERB a “toothless tiger,” and MPD’s response to CLERB “insulting.” The futility was so apparent that CLERB members stopped meeting for a while. Last year, the state legislature piled on, clarifying that CLERB did not have subpoena power. To compel documents or testimony, CLERB must get a majority vote of the City Council, on a case-by-case basis. Given the City Council’s schedule and bandwidth, this is

impractical, placing the burden of time and inertia on those seeking transparency and accountability, thus reinforcing the status quo. The Mayor and Police Director have recently promised reform, stating they would “consider” lobbying the state legislature to give CLERB subpoena power. This reform is as toothless as CLERB itself—even if the City were to so lobby, the chances of success are remote. More importantly, it ignores an obvious and more effective solution. The City is directly in charge of how its officers cooperate with CLERB investigations. It can require that MPD cooperate fully with all document and witness requests, and abide by any of its recommendations. It does not need subpoena power for that. True, the City cannot compel third parties to cooperate absent a subpoena, but that’s rarely an issue. Third parties—members of the community—are normally only too happy to cooperate with CLERB. Indeed, it’s their complaints that usually initiate a CLERB investigation. The Mayor could issue an executive order tomorrow requiring that the Police Director comply with all CLERB document requests, absent a clear and convincing finding that a particular request would jeopardize a cooperating witness, ongoing investigation, or was unduly burdensome. Such an order could also require that any city employee (including MPD) must appear to answer questions before CLERB on proper notice, subject of course to selfincrimination and other applicable privileges. 11

The order could also impose a strong presumption that CLERB recommendations be followed. If the MPD Director wishes to disregard an investigative request or a disciplinary or policy recommendation, he would have to explain why, in writing, and communicate that to both the Mayor and the City Council. All such explanations would of course be public records. If the Mayor declines to act, the City Council could step in. It could pass an ordinance requiring the above. Some may object that such a Council ordinance would be counter to the recently passed state legislation requiring case-by-case action. But that is only in the context of a “subpoena”—this would simply be a City ordinance governing internal affairs and directing City employees. Others may object that this would raise separation of powers concerns regarding encroaching on the Mayor’s prerogatives. But the City Council passes ordinances which govern the conduct of city officials all the time.

But even if such bold City Council action were considered legally questionable, or considered a bridge too far politically, the Council could, at a minimum, require that the MPD Director justify each CLERB refusal in writing to the Council, teeing it up for case-by-case action. And the Council could amend its internal rules to provide that MPD-denied CLERB subpoena requests would automatically go on its consent agenda, where they would be teed up for routine approval. Given the current makeup of the Council, some Council members may very well exercise their prerogative to take it off the consent agenda. But that would still force the Council to an upor-down vote. We need a culture where cooperation with CLERB is the norm and refusal the exception. We need to call attention to each instance of obstruction, and force our elected leaders to say whether they’re ok with it. This by itself will not solve the problem, but it’s the least we can do. 

Steve Mulroy is a former federal prosecutor and University of Memphis law professor, who teaches and publishes in the areas of, among other areas, criminal law and procedure. 12

Equal Justice Under Law: Reforming our Criminal Justice System By CONGRESSMAN STEVE COHEN

arlier this year, the deaths of George Floyd, Breonna Taylor, and Ahmaud Arbery reawakened our nation to the systemic racism, excessive force, and abuses of power too prevalent in American policing. I remember names like Elton Hayes, who was killed by police in 1971, and Edward Garner in 1973, both in Memphis while I was in law school. In fact, it was Garner’s case – argued by my colleague on the Shelby County Commission and fellow attorney, Walter Bailey, before the Supreme Court in 1984 – that established a law enforcement officer may not use deadly force to prevent escape unless there is probable cause to believe the suspect poses a threat of death to the officer and others. Every few years, the death of a person of color at hands of police provokes outrage and handwringing, yet progress has been slow and often fleeting. Our challenge is to truly live up to the words carved over the United States Supreme Court, “Equal Justice Under Law.” Throughout my career, I have worked to make policing and the broader criminal justice system fairer and more effective. I believe that the criminal justice system works best when it has the trust of the community and that requires several interrelated principles: 1) the police are truly dedicated to – and just as importantly, perceived as being truly committed to – protecting and serving the community, 2) government policies respect minority communities, 3) efforts to prevent crime and reintegration of those returning to society should be integral to law enforcement and criminal justice strategy, and finally, 4) we use all the tools of government and not view every issue through a criminal lens. In too many communities, there is a crisis of trust between law enforcement authorities and those they are sworn to serve. This is true in communities of

color, especially African American communities. The community views the police as some external entity coming into their neighborhood to get people, and the police see themselves as the “thin blue line” that enforces order in places where any break can lead to complete chaos. Federal policies, perhaps well intentioned when created, have served to reinforce this adversarial relationship. Police departments have been equipped with the tools of war to do battle on America’s streets. In police academies, more time is spent learning how to use firearms and practicing shooting than learning de-escalation techniques. And, accountability for misconduct has been so weakened that bad practices can metastasize and spread unchecked. In short, the culture of policing must change. Too many officers see themselves as enforcers, not public servants. We need to reverse that and further professionalize, not militarize, police forces. To tackle some of these issues, I have proposed new measures that would increase accountability as a way of shaping culture. When there is a horrible incident of police misconduct, we often hear that the officer involved was just a bad apple. That may be true, but bad apples aren’t just themselves bad, they are bad because they spoil the bunch. We need accountability to prevent those with ill intentions from joining a police force and to quickly identify and remove them. In that context, I introduced the National Statistics on Deadly Force Transparency Act and the Police CAMERA Act. Both bills provide a way to review and understand how officers are interacting with community members. The Police CAMERA Act is especially important, because it allows us to literally rewind the video and replay an incident. The camera is an objective observer that can report what happened in a disputed situation. 13

However, reporting is not enough. We need to prevent misconduct, and when it does happen, there must be real consequences. That is why I introduced the Police Training and Independent Review Act. This bill provides cultural competency training for police officers so they can better understand the situations they are placed in and in turn be more effective. It also creates a system for independent review when deadly force is used. These incidents are some of the most troubling, and it is important that the reviews of these incidents are credible. In most instances, police departments themselves conduct the investigations of the deadly force incidents and, if appropriate, refer them to the local prosecutors, who the police work with daily, for potential charges. Even in the cases where the investigation is fair and thorough, and prosecutors act independently, the perception of conflicts of interest casts doubt on the process and outcome. Independent investigations in such cases would help instill confidence in the process and more generally the criminal justice system. I am pleased that versions of all three of these proposals were incorporated in the George Floyd Justice in Policing Act, which passed the House with my support on June 25, 2020.

I also recently introduced a bill that would create Respondeant Superior liability for employers of law enforcement officers who violated the constitutional rights of citizens. This accountability mechanism is designed to force cities and the departments to take training and the enforcement of use of force policies seriously and prevent civil rights violations before they happen. Second, communities of color are disproportionately policed and incarcerated. According to Pew Research, Black Americans make up about 12% of the United States population but represent 33% of those incarcerated in America’s prisons and jails. In contrast, 64% of the U.S. population is white, but only 30% of incarcerated people are white. There are many causes for these racial gaps, and we need to be more thoughtful about how our criminal laws feed this problem. The “War on Drugs” has given us many examples. Take the crack-powder cocaine disparity, where possession of crack cocaine and powder cocaine (which are pharmacologically identical) have dramatically different sentences. For decades, crack cocaine was sentenced at a level of about 90:1 over powder cocaine. Underlying this policy is that crack cocaine is less expensive and predominantly used by

people of color, while powder cocaine is more expensive with predominantly white users. Though these polices were facially neutral, there was tremendous desperate impact across races. Over the past decade, we have made some improvements to the crack-powder disparity, but it still exists. Policy makers must be more thoughtful about how their polices affect different communities. We also struggle with over policing in communities of color. Marijuana provides a good example of this issue. While both Black Americans and White Americans use marijuana at roughly the same rate, Black Americans are four times as likely to be arrested for a marijuana violation. This unequal enforcement is a major reason why I have fought for marijuana legalization for the past four decades. Marijuana is not as harmful as heroin and LSD, other drugs also on Controlled Substances Act’s Schedule I. The severe sentences for misuse of Schedule I drugs, coupled with unequal enforcement, means that marijuana is disproportionately incarcerating Black Americans. Having respect for minority communities in our policy making requires us to take these disparate impacts into account and work to reduce them. Third, I believe we should expand how we think about law enforcement. We need to invest in successful prevention programs to help reduce crime and ease the transition back into society for those who have served their sentence. Many who have fulfilled their debts to society still suffer the long-term collateral consequences of conviction and incarceration. It is harder to find a job and rent a home with a criminal conviction on one’s record. To confront this problem, I have introduced

the Fresh Start Act. This bill would allow for records to be expunged after seven years. Similarly, I authored the Making Essentials Available and Lawful (MEAL) Act which would allow ex-offenders, who are about to be released, to apply for SNAP and TANF benefits to help with their transition. Those who successfully reenter society are much less likely to reoffend, and that is good for everyone. Last, our politics has warped our responses to many issues. We need to reinvest in social and community services that can better address the issues. We need social workers who have training in how to work with people in difficult circumstances to help tackle homelessness, for example. We need people trained to work with those suffering from addiction to help tackle drug abuse. Not every issue is a criminal justice issue, and we need to use more of our tools. This will help take pressure off law enforcement and allow them to do what they are trained to do. For decades, I have advocated for criminal justice reform so that law enforcement could better serve and protect our communities. Throughout that time, I have met with families and learned about many of those killed by police, including Steven Askew and Darrius Stewart in Memphis. The George Floyd Justice in Policing Act sends an important signal that a bipartisan majority in the House of Representatives is ready to directly confront these issues. That bill would make crucial improvements, but still more will need to be done to truly reform our criminal justice system and ensure that every American is offered Equal Justice Under Law. 

The Realities of Diversity in the Legal Profession By PROFESSOR DEMETRIA FRANK

gainst the backdrop of witnessing the disproportionate impacts of COVID-19 on black and brown communities, George Floydâ&#x20AC;&#x2122;s death was a digital slap-in-the-face reminder that no matter how strongly committed to justice we are as individuals, injustice is permeated in our most important institutions. This wakeup call was particularly important for lawyers because we have an ethical obligation to hear the voices of the oppressed and respond in ways that produce equitable change. With this renewed conversation about who we are as purveyors of the legal system, comes an extraordinary moment to more collectively and broadly promote justice and feed the pipeline to legal education for diverse individuals. However, to make the most of this moment and fully embrace the Black Lives Matter movement (which should not be a controversial thought), we need

to start by dealing in reality. The most obvious reality is that we have a very long way to go in diversifying the legal profession. Attorneys of color are underrepresented in every area of the legal profession relative to percentage of the general population. While 61% of the U.S. population in 2017 was White non-Hispanic, nearly 89% of lawyers were white. As for lawyers of color, 4% were Black or African American (compared to 13% of the population), 4% were Hispanic or Latino (compared to 18% of the population). Only 35% of all attorneys are women, and women continue to be underrepresented in top-level jobs within the legal profession, such as law firm partner and judgeships. Of lawyers that report being disabled, the profession sees big disparities. Disparities likely also exist for lawyers identifying as LGBTQIA+, although representation in law firms has been steadily increasing since the

National Association for Law Placement (NALP) began capturing this data. Despite these scathing figures, many organizations fundamentally believe that they have a “commitment to diversity” just because they say so. Second, it is impossible to “eliminate” bias and inequity. One of the American Bar Association’s only four stated goals is to “enhance diversity and eliminate bias.” This laudable goal demonstrates how far the organization has come, especially considering when it was initially formed, black lawyers were excluded from membership. However, the unfortunate reality is that no set of initiatives can “eliminate” bias. We are all subject to bias. Even well-intended people have it. We have always judged people based on perceived group characteristics and will likely always do so. For those who are willing, we can get better at it and learn to bias less, but there is no such thing as bias elimination. Knowing that bias is inevitable, the better approach is to incorporate bias protection into our systems, strategy, and planning for diversity initiatives. Another reality we must accept is that the culture of legal environments often discourages diversity. Not only are the cost of legal education and other admission criteria very real obstacles to entering law school, but law school culture is described as one that fosters "competition and conformity," where grades and class ranking are of utmost importance. In light of the educational deficits experienced disproportionately by students of color, this culture of competition and conformity is often at tension with law school and employer goals of creating and maintaining a diverse student body. Legal employer practices, such as only hiring from the top 15%-25% of the class, reinforces this competition and conformity, and inevitably becomes a part of similar cultural practices of legal environments in the real world. Moreover, if we are fortunate enough to attract diverse individuals to the profession, we do little to ensure the unique experiences they bring to legal practice are valued. Additionally, we must deal in the reality that the inequities that prevent a more diverse legal profession begin well before law school. As a result of what is now understood as the “achievement gap,” black and K-12 students are nearly three times more likely to be held back, ultimately leaving diverse law school applicant pools weaker than white applicant pools. Black students are also less likely to graduate from high school and

more likely to attend schools where most of their peers are in poverty or low-income. At least in part due to educational budgetary deficits in urban areas where most students of color live, black and Latino-Hispanic students are less likely to have access to the support needed to perform well educationally. Students of color are also less likely to have access to extracurricular activities that develop skills which prepare students for law school such as debate, public speaking, pre-law societies or student government. The monstrous criminal justice system results for racial minorities and a disproportionate number of youths of color entangled in the juvenile justice system, also inevitably impacts the viability of diverse law school applicant pools and diversity in the profession. The reality is that black and Latino-Hispanic students receive disproportionate levels of discipline contributing to the school-to-prison pipeline, and are significantly more likely to go to prison or jail in their lifetime. Additionally, with one-in-fifteen black children with an incarcerated parent, the children of the incarcerated also suffer great harms in terms of emotional development, financial support, educational opportunity, and therefore, feasibility of undergraduate and law school admission. As a result of abysmal justice and law enforcement policies, there is also great distrust in the legal system by many black and brown Americans compared to others. For example, one study concluded that only 37% of black Americans have “a great deal or quite a lot of confidence” in the justice system compared to almost 60% of white Americans. This lack of trust in legal institutions certainly negatively impacts sentiments of black Americans that might otherwise seek a legal career. Nevertheless, the criminal justice system severely needs more lawyer advocates that normalize the value of black lives in pursuit of criminal justice reform. The last reality to which we should take note is that our lives and future likely depend on diversifying the legal profession. Racial division has forever undermined the democratic values we say we hold dear, and with over two million people behind bars in prisons, jails, and other correctional facilities, ideals of the United States as a supposed leader of democracy and the free world are seriously challenged. There is a critical need for lawyers of color because black and brown individuals are disproportionately intertwined in the criminal justice 17

system and diverse lawyers are more likely to promote equitable legal policies and principles and better understand the impacts of systemic injustice.

they retire. We need people and organizations willing to make significant financial investments in young people from diverse communities.

Planning for the next generation of lawyers in light of the Black Lives Matter movement and other direly needed social improvements, means significant investment in young people early in ways that matter. The private nor public sector has corrected the fact that it is more expensive than ever to obtain a college and law school education, and it is up to us to collectively ensure the legal profession is a diverse one. Although the University of Memphis Cecil C. Humphreys School of Law ranks high in affordability as compared to most institutions, it is still quite unrealistic for most citizens and especially people of color and low-income families.

Additionally, we need lawyers willing to speak truth to power—and for this to become normal behavior. This truth must speak in terms of equity and humanity on issues such as wage and wealth disparity, economic mobility, educational disparity, disability and mental health rights and immigration. We cannot ignore the reality that all of these things contribute to disparities in the legal profession.

We need to create opportunities to tell young people about what lawyers do, develop skills, and open minds about the law as a potential career. We need lawyers creating legacies and affinity groups and other programs that promote skill development in young diverse students. We need new lawyers who will be active alumni and stay current about what their alma mater does to enhance diversity. We need lawyers considering what they will do on a day-to-day basis to guarantee that the profession looks drastically different demographically by the time

As lawyers, we each have a role to promote equity and access to justice. As leaders of legal organizations, we have an obligation to do the same as well as deepen the talent pool in the legal field, while building opportunities that go beyond creating a mere impression of diversity. To do so, we must go beyond calling in favors to law school administrators to help “look out” for exceptional diverse candidates when hiring committees are formed. Ultimately, to lead to more candidates for legal organizations to hire in the future, we should ask, “How can I help promote justice so that there is a wealth of diverse candidates for academic institutions to promote and groom?” 

Professor Demetria Frank joined the University of Memphis Cecil C. Humphreys School of Law faculty in 2013, and was appointed Director of Diversity in February 2020. She also leads Project MI, which addresses mass incarceration. 18

The Irony of Filing Motions to Dismiss with Prejudice By DARYL J. SMITH, Senior Staff Attorney to Sylvia Ford Brown, Chapter 13 Standing Trustee (Memphis, TN)

re chapter 13 serial filers abusing the bankruptcy system? Maybe or maybe not. There are many reasons debtors file multiple bankruptcy cases across the nation, including but not limited to parking tickets, court fines, utilities, lack of financial literacy, foreclosure, past due rent, divorce, illness and repossession of an automobile.

The bankruptcy laws provide debtors with relief and an opportunity for a fresh start by affording certain protections from creditors. Along with this protection, the debtor has a duty to comply with the Bankruptcy Code. Generally, the dismissal of a debtor in a chapter 13 case is without prejudice. Following the dismissal, a debtor may subsequently file a new chapter 13 bankruptcy. Nevertheless, there are times when a debtor’s actions in prior cases are so egregious that it calls into question whether the filing is in good faith. One of the most egregious cases in the Western District of Tennessee involved a debtor who filed 36 cases. This debtor started filing cases in 1995 and continued to file through 2019. During that period, the debtor filed thirty-two chapter 13 cases and four chapter 7 cases and has never received a discharge in any of the cases. When a debtor’s actions demonstrate such an apparent lack of good faith, our court and my trustee view those actions as an abuse of the chapter 13 process. Indeed, such a debtor is using the system only to hinder and delay creditors. We believe the characteristics of a serial filer include failure to appear for hearings, a lapse in plan payments and filing multiple cases without obtaining a discharge. Thus, motions to dismiss with 1 prejudice are an appropriate response to such behavior. Our office has identified a new pattern in debtor behavior after we file motions to dismiss with prejudice. These motions appear to motivate debtors to begin making payments, and in some cases, the debtors have been in bankruptcy for decades due to serial filings.

This approach also provides debtors' counsel leverage to decline representation when dealing with repeat filers. This response has led us to ask, are the motions to dismiss with prejudice and orders barring a debtor from filing for a period of time, the reason for the peculiar effect in our district? Possibly. Some debtors started to pay after many years in various types of bankruptcy filings. The goal of the motions to dismiss with prejudice is not to punish the debtors. Multiple factors compelled our office to begin filing more motions to dismiss with prejudice. The primary motivation was to protect the integrity and efficiency of the bankruptcy system. The motions also appear to motivate debtors to get out of the red. We’re offering them the best chance for receiving a discharge and allowing the unsecured creditors to receive the maximum return. When a debtor files two or more bankruptcy cases, a lot of work is imposed on our case administrators, who must manually input each creditor listed in the schedules into the bankruptcy software each and every time a new case is filed. There is no carry over, each new petition requires new data input. The paralegals must draft new motions and/or objections in each new case. Staff attorneys and the Trustee must again review each of those motions/objections and conduct § 341 and confirmation hearings. Dismissals with prejudice can also save the court clerk time setting up a repeat debtor on the docket. The order dismissing with prejudice will avoid the setting up of similar cases that have a high likelihood of failure. 19

An additional factor that our office considers is the time wasted by a debtors’ attorney. When potential debtors contact an attorney, the attorney can search for the case in PACER to see how many times they have filed. The information from PACER provides debtors' attorneys with cost-cutting measures for case management by allowing them to charge an upfront fee in lieu of zero down if the debtor is a frequent filer who fails to fund a plan after the automatic stops collection efforts. Alternatively, they can decline to take the client altogether. We dismiss cases for a specific period (six to twentyfour months). However, we do allow debtors the option of converting to Chapter 7. Our caseload is roughly 7,600 active cases. With around 2,400 cases filed since August of 2019, our office filed 130 motions to dismiss with prejudice. Of those 130 motions, the court dismissed 40 with prejudice. 2 Other motions were resolved by consent orders. There is a famous quote in this district in which the Honorable William Houston Brown (retired) dismissed a case with prejudice. He famously told that debtor, “Mr. John Doe, you may not file another bankruptcy case in any chapter in the entire universe.” Memphis was once 20

known as the bankruptcy capital of the world. The perception is everchanging according to collected stats of 4 U.S. Trustee, so the bankruptcy ranking changed. Even in a liberal filing district, there comes the point where enough is enough. A fellow Tennessee Trustee once joked, “Memphis has 20,000 cases, but only 5,000 debtors.” While this is not entirely accurate, if a debtor shows a genuine change in circumstances, we don’t oppose the new filing. Of course, a motion to reinstate or a motion to reconsider the order of dismissal with prejudice is always an option for the debtor. The judges in our district truly consider significant changes in circumstances, such as personal injury settlements that will pay the case at 100%, steady full-time employment, lottery winnings, etc. It is the debtor’s responsibility to provide evidence of those changes. There is no “typical” debtor in our district. We see young, old, rich, poor, uneducated and educated. We want all people in chapter 13 to receive relief. Naturally, the demographics of our district impact the filings. And, when systemic problems exist, bankruptcy cannot fix those issues. Memphis, which has a high poverty rate, is the largest city in our district, and the majority of our

socioeconomic status is a combination of education, income and occupation. Examinations of socioeconomic status often reveal inequities in access to resources, in addition to issues related to privilege, power and control. Numerous chapter 13 cases or any chapter of the Bankruptcy Code cannot solve issues with status and poverty. What is the solution? Perhaps financial literacy should be emphasized in schools. My trustee argues it should be a part of the curriculum. She believes it should be taught in middle school with at least one additional semester required for high school graduation. The parents cannot pass on what they do not know themselves. The paradox here is that the compulsion for debtors to start making their plan payments in response to

dismissals with prejudice has shed light on the debtors’ plight. Some debtors do not wish to take advantage of the bankruptcy system. Their goal is not to get a discharge, for them, failure to get a discharge does not mean their case was a failure. Many simply just want another 30 days in a rental unit or to avoid repossession of a vehicle. That equates to success for some. While other offices across the nation may file motions to dismiss with prejudice more or less often than the trustee I work with, there can be an overall positive effect of filing the motions to dismiss with prejudice occasionally. This effect may benefit both large and small offices nevertheless, paying debtors and successful cases aids everyone in the process. Who would have imagined a “negative motion” could have an encouraging effect? 

11 U.S.C. § 105 - Power of Court. Section 105 gives Bankruptcy Courts broad equitable powers to issue any order, process or judgment that is necessary or appropriate to carry out the provisions of the Bankruptcy Code or prevent an abuse of process, and to address instances of bad-faith specifically, serial filings (see United States v. Boulware, 604 F.3d 832 (4th Cir. 2010); Dempsey v. Carter, No. 07-1042, 2007 WL 2478674 (7th Cir. 2007) (unpublished); In re Ellsworth, 455 B.R. 904, 921-22 (B.A.P. 9th Cir. 2011); In re Cusano, 431 B.R. 726, 735-37 (B.A.P. 6th Cir. 2010); In re Marshall, 407 B.R. 359, 363 (B.A.P. 8th Cir. 2009); and In re Gonzalez-Ruiz, 341 B.R. 371, 386 (B.A.P. 1st Cir. 2006)) 11 U.S.C. § 109 - Who may be a debtor. In re Tomlin, 105 F.3d 933 (4th Cir. 1997) (holding that the Bankruptcy Code provides a bankruptcy court with authority both to bar subsequent discharge of existing debt and to bar successive petitions under Section 109(g)). 11 U.S.C. § 349 - Effect of dismissal. "Our court of appeals has recognized that …§ 349(a) gives a bankruptcy judge discretion to 'order otherwise' for cause and to dismiss a petition with prejudice; this discretion may be exercised either to prohibit the filing of a petition within a set time, or it may preclude the debtor from receiving a discharge in bankruptcy of debts in existence when the case is dismissed." In re Weaver, 222 B.R. 521, 522 (Bankr. E.D. Va. 1998) (citing In re Tomlin, 105 F.3d 933, 937 (4th Cir. 1997)). 11 U.S.C. § 1307 - Conversion or dismissal. According to 11 U.S.C. §1307(c), the Court can dismiss a Chapter 13 case for cause. Courts have held that where the debtor files the petition in bad faith, cause for dismissal exists. Marrama v. Citizens Bank of Mass., 549 U.S. 365, 127 S. Ct. 1105, 1107 (2007); In re Love, 957 F.2d 1350, 1354 (7th Cir. 1992); In re Sawyer, Case No. 07-10252-SSM, 2007 WL 1725627 (Bankr. E.D. Va. June 13, 2007).

ORDER GRANTING TRUSTEE'S MOTION TO DISMISS WITH PREJUDICE This matter came to be heard upon a Trustee's Motion to Dismiss with Prejudice, and it is appearing to the Court from statements of the Chapter 13 Trustee that the motion should be granted. THEREFORE THE COURT FINDS: That pursuant to 11 USC §1307 and §105(a) the instant case is dismissed with prejudice. The debtor is prohibited from filling a bankruptcy case under any chapter of the bankruptcy code in any jurisdiction in the United States for two (2) years. If the debtor desires to file a case in any jurisdiction in the United States, they must first seek relief from this Court.

https://www.theatlantic.com/business/archive/2017/09/bankruptcy-memphis-chapter-13/541194/

https://www.justice.gov/ust

Team MBA Runs for St. Jude By EARLE SCHWARTZ

ancer does not take a break and kindness is not cancelled. So, the Memphis Bar Association’s Team MBA continues to train and fundraise to participate in this year’s St. Jude Memphis Marathon Virtual Event. December 2020 marks the 5th anniversary for Team MBA. Over the past 4 years, we have had over 100 folks run with us and raised more than $25,000 for St. Jude. We have run in support of St. Jude patients like Julia (now deceased) and Charlie. This year, however, is different. There will not be 25,000 people jamming the streets of downtown Memphis and running through the St. Jude Campus to the high fives of patients and their caregivers. This year, we will run in isolation, on our own selfdesigned course, at our own pace, on our own day; fueled by our own motivation. The virtual event will offer a different experience, but it will be just as valuable. This year, we are running in honor of David Hunt, son of Sean and Clarice Hunt. Please read Sean’s story of his son’s battle against sickle cell disease with the help of St. Jude. “Technically speaking, David has been going to St. Jude ever since before he was born 18 years ago. We found out that he was going to be born with sickle cell disease when he was still in vitro. When he was first born, we had to give David daily doses of penicillin. We did this every day until he was 5 years old. St. Jude has provided us with education on his disease, and has been a source of information when we need it. For example, if David gets sick and has a fever, we do not call the pediatrician first, we call St. Jude. David was born with a little bit more moxie than your normal child. I believe that is because of the sickle cell disease and what we would ultimately find

David Hunt playing on Lausanne’s football team

out was the biggest drawback—the pain. Because of the unusual shape of the blood cells, they tend to get stuck sometimes in the smaller veins and capillaries and cause excruciating pain at any time and in any place in the body. Often as David was growing up, we found ourselves feeling helpless as we watched our child cry and cry due to the intractable pain and later as a teenager, still seeing him in tears, and there was nothing we could do as parents. That is where St. Jude comes in. When the pain can't be controlled with prescription narcotics at home, we can call them and get either stronger pain medications or bring him into their "pain room" where they will provide him with hospital administered pain medications including morphine. On one occasion, David's pain was so bad that he was kept overnight at St. Jude, for the first time in his life. I stayed with him. Although I slept on the couch, the room came not only with a separate room but a place where I could connect my computer and work if I needed. They also had snacks for him, games, television and more. They also had snacks for the parents. They really have thought of everything. David has always been resilient. Despite his pain episodes, he continues to thrive, playing football and going to school like any other child. He has maintained good grades, despite having to miss school sometimes because of the pain episodes or other illnesses. Because of sickle cell, some of the illnesses that are innocuous to other children, are quite serious for David. But David has taken this limitation in stride. Even during this pandemic, David has continued to thrive, to grow and excel. We have supported St. Jude, not only for David, but also for all the children who have been treated there and around the world with protocols developed at St. Jude. Clarice and I have raised money for St. Jude 23

thankful this year for the work of St. Jude and that we have such an amazing resource here in Memphis. In the words of my cousin Karah as she experienced taking her child to St. Jude to see whether he had cancer, ‘The feeling that comes over you as you walk through those doors is a feeling like no other. Being there and seeing the services and care provided and knowing not a single parent gets a bill completely amazes me.’ several times as St. Jude Heroes in the St. Jude Memphis Marathon as part of Team MBA. Please join us. This year, YLD member and Team MBA participant McKenzie Podesta shares why she is running the St. Jude Memphis Marathon. “I’ve run many races throughout my life. I enjoy the camaraderie of being surrounded by other runners, all working towards the same goal of finishing the race. But I have always avoided the St. Jude Memphis Marathon Weekend. I thought the crowds, the parking, and the hassle of it all would just be too much. When I heard Team MBA was looking for young lawyers who run and would be interested in promoting the race, I decided to sign up. I thought, “St. Jude probably needs my money and support now more than ever, so why not?” A couple months after signing up, I received news solidifying that recent commitment. My cousin Karah was having to take her newborn baby, McCade, to St. Jude to run tests on a suspicious ‘spot.’ While I had been happy to support St. Jude so that they could help other families and other children, I was shocked, anxious, and saddened that this was hitting so close to home. While Baby McCade received great news from the doctors at St. Jude, he will still have to go back for regular check-ins. My family and I are extra

I challenge everyone reading this article to take action – sign up to run with us, buy some swag or make a donation. Every dollar counts, and you never know when you or your loved ones will need St. Jude. Although this wasn’t what I was thinking when I signed up to run, I’m running for David Hunt, for Baby McCade, and for all the staff, nurses and doctors who care for patients like them and their families.” This year, we are proudly sponsored by Titan

Orthopedics and Dr. John Lochemes, the official orthopedist of Team MBA. The St. Jude Memphis Marathon Weekend has always been the single largest one-day fundraising event for St. Jude. If the trend continues, St. Jude will not make its pre-COVID 2020 fundraising goal of $12.5 million. So, this year it is important that the Memphis Bar Association and Team MBA have its best year ever. You can support this effort in several ways: 1. You can still register to run at any of the distances as a member of Team MBA by registering here. 2. You can recruit others to register for the event as a member of Team MBA. 3. You can buy Team MBA swag and a portion of the proceeds will be returned to the Team for St. Jude. 4. You can make a donation to St Jude through the Team.

DACA Limbo During COVID-19 Health Crisis By LUCY BOATENG

s our country pivots toward a “new normal,” recent immigration challenges enacted by the current Administration have caused many immigrants to remain in limbo. Over the last four years, the Deferred Action for Childhood Arrivals (“DACA”) program has drastically changed. The DACA program has allowed an estimated more than 690,000 immigrants a chance to live and work legally in the United States. The Administration’s September 2017 order to end the DACA program reached the U.S. Supreme Court in 2019. It was ultimately determined in June 2020 that the decision was “arbitrary and capricious” under the Administrative Procedure Act --- and failed to consider the hardship to DACA recipients. The decision resulted in the restoration of the original 2012 program and required the United States Citizenship and Immigration Services (“USCIS”) to accept both initial and renewal applications for DACA and advance parole applications for DACA recipients. The Supreme Court’s ruling never actually stated that the program could not be terminated by executive order; but rather, the Court noted that the Administration needed to find a legal

way to accomplish this. The Supreme Court’s ruling can be considered a win for DACA, as it gave current and potential DACA recipients hope. In response to the Court’s decision, immigration practitioners and vested organizations commenced DACA renewals and initial DACA applications in anticipation of expected guidance from USCIS, especially regarding initial applications. The Community Legal Center (“CLC”) has continued to advertise our core mission services. Given COVID-19, we have also launched a new virtual DACA clinic for eligible applicants who need assistance with the application process but cannot afford to hire an attorney. Applicants can sign up for an online appointment and receive a one-on-one call or video consult meeting with a CLC legal representative for a reduced fee of $20. CLC is seeing an increase in community interest; the number of inquiries about DACA increased after the Supreme Court’s ruling. Given the pending status, CLC has moved to screen interested applicants for eligibility and has advised them to start gathering supplemental documentation in anticipation for filing. 25

Despite the Supreme Court’s decision and several lower federal court orders to reinstate the program, the Department of Homeland Security (“DHS”) released a memorandum on July 28, 2020 limiting the DACA program. Chad Wolf, Department of Homeland Security Acting Secretary, stated in the memorandum that he is “rescinding the 2017 and 2018 memoranda, and making certain immediate changes to the DACA policy to facilitate…thorough consideration of how to address DACA in light of the Supreme Court’s decision.” Specifically, the memorandum stated that DHS would reject initial DACA applications, continue to process DACA renewal applications --- but grant it for only oneyear extensions, and reject advance parole applications unless there are exceptional circumstances. These actions are a violation of the Supreme Court’s decision and several other federal court decisions. 26

So, what is next for current and potential DACA recipients? It is recommended that DACA recipients renew their DACA as soon as possible. Applications can be submitted as early as 150 days prior to the expiration of the current DACA validity period. Applicants can call the CLC at 901-543-3345 or schedule an appointment at www.clcmemphis.org for a virtual consult. It is unclear what the best course of action is for initial DACA applicants in light of the July 28, 2020 memorandum. If applicants decide to file initial DACA and advance parole applications, they risk the applications being rejected. However, if applicants file before the program is rescinded or partially rescinded, they may be able to sue or benefit from federal litigation if the applications are unlawfully rejected or denied. These changes are still relatively new. We hope to learn further details in the next couple of months so we can pass this on to our community. 

MALS at 50: STILL SERVING JUSTICE FOR ALL By DIANE VESCOVO & MIKE MCLAREN MALS 2020 Campaign for Equal Justice Co-Chairs

emphis Area Legal Services turns 50 this year. And in the midst of a global pandemic, the need for legal services for those who cannot afford representation is greater than ever, and MALS needs your support more than ever. Over 50 years ago, a group of thirty-one lawyers and law students, led by W. J. Michael “Mike” Cody, recognized the need to provide access to civil legal services to low income families and elderly people in Shelby County. (The founders are listed at the end of this article.) They pooled their own funds to form the Neighborhood Legal Services Project. It opened in the old Centenary Methodist Church located at 878 Mississippi Boulevard. It was staffed with a law student and a secretary, then lawyers volunteered their time after work. In 1970, government funding was obtained, and the Memphis and Shelby County Legal Services (MSCLS) opened its doors. The Honorable George H. Brown (retired Circuit Court Judge) served as the initial Executive Director followed by A C Wharton, Jr. (former Mayor of the City of Memphis and former Shelby County Mayor). In 1974, the Legal Services Corporation Act, which established the Legal Services Corporation (LSC) in Washington, D.C., provided federal funding for legal aid. As services were expanded to neighboring counties, the name was changed to Memphis Area Legal Services, Inc. (MALS) to reflect the expansion of services to Fayette, Lauderdale and Tipton Counties. The Campaign for Equal Justice was established nearly 20 years ago to respond to a financial crisis occasioned by federal budget cuts. It is a critical source of revenue for MALS.

The need for legal representation was important to these founders 50 years ago and is even greater today during the COVID-19 pandemic. While some law firms may have experienced a decline in their client base in recent months, MALS’s client base has grown by leaps and bounds. In the wake of widespread unemployment, now more than 27% of Memphis residents and a staggering 45% of children in Memphis live below the federal poverty level. Eviction cases are soaring. Domestic violence cases are out of control. Elder abuse incidents are on the rise. Resources are scarcer. Because of the pandemic, we are called upon to do more. There are twenty-two attorneys currently working at MALS. In the first seven months of 2020, these attorneys have handled 1,865 cases – an average of 89 cases per attorney. These statistics alone underscore the need for all of us to give more. For us, this is our first pandemic. We are called upon to be innovative in these unprecedented times and do things differently. Because of COVID-19, MALS cannot hold its annual Justice for All Ball. Instead, MALS has other special events in the pipeline, including a virtual wine dinner at Napa Café -- MALS@50 Still Serving Justice For All -- and other dining experiences with Restaurant Iris in October. Kathy Buckman Gibson and J.W. Gibson have graciously agreed to host the wine dinner. The dinner will be a new experience for everyone but promises to be a fun way to honor the founders of MALS, raise funds, and kick off the Campaign for Equal Justice. In connection with the wine dinner, we will have 27

many other ways to participate and contribute! Watch for more information to follow. Last year, the Campaign for Equal Justice raised more than $ 380,000. This year, the year of the 50th Anniversary, we hope to raise even more. In the upcoming months, we

will be contacting you to ask for your support. While we realize many lawyers and law firms, like other businesses, are experiencing economic difficulties during these epic times, MALS is experiencing even more difficulties. Let us unite behind MALS in the last months of this year.

Please put MALS’s needs before your own. Diane’s father, Lloyd Kirkland, passed away in August at age 92. At the time of his death, he was the oldest practicing lawyer in Shelby County. Throughout his career, he made a point to donate generously to MALS every year, disproportionately to his own income, as the founders did 50 years ago when they pooled their own resources to provide justice for all. Join us in doing the same. 

FOUNDERS Ben C. Adams

W. J. Michael Cody

James M. Manire

James T. Allison

Charles M. Crump

W. Emmett Marston

Walter Armstrong

Lee Freudburg

John B. Maxwell

Irvin Bogatin

James S. Gilliland

John Monclure

Ronald Borod

Albert C. Harvey

Charles F. Newman

William Bruce

Michael E. Hewgley

Clifford D. Pierce

William E. Caldwell

Edward M. Kaplan

John C. Robertson

David Caywood

Bruce S. Kramer

Irvin Salky

Robert L. (Butch) Childers

Phillip E. Kuhn

W. Rowlett Scott

Robert A. Lanier

Don Southern

Ross Clark

Percy Magness

MALS

CORNER 28

The Time Is … By JUDGE STEVE HORNSBY

idsummer finds us over halfway into a year like none other in history. We are six months into a global/local viral pandemic and two months into a widespread reckoning with the ancient and pernicious plague of racism and injustice. Both are characterized by an individual and collective gasp of “I CAN’T BREATHE” from our lungs as well as our souls. Both have cut jagged wounds deeply into our personal and national psyche. We long for the return of “normal life” like football season and kids starting back to school. Instead, we are beset with a cacophony of shouted discordant facts and opinions. Science, truth, basic dignity and respect for each other have been politicized and pilloried. Skepticism, doubt and dissonance fill the ethers around us like noxious fumes. On August 6, the New England Journal of Medicine published an article warning about the mental health implications of current events, including rising levels of PTSD, anxiety, depression, addiction and suicide. Well, of course.

This state of seemingly unending turmoil is having both a hypnotic and disorienting effect. Like a real-life version of Bill Murray’s Groundhog Day, the days seem to repeat themselves in a recurrent nightmare where we can’t tell the present from the past. Weekdays blur together, and we often hear “What day is today? This is Tuesday, right? - wait, no it’s Thursday. What week is this?” Our brains may be coping with the collective recurring daytime nightmare by creating a type of dissociative stupor. Whew! What can we do to reground, regroup and take care of ourselves? Let’s start with the most elemental things. Turning to an unlikely (perhaps not) source, Jimmy Buffett’s ode to coping with the devastation of Hurricane Katrina, Breathe In, Breathe Out, Move On rings true for our current situation: I bought a cheap watch from the crazy man Floating down Canal It doesn't use numbers or moving hands It always just says NOW 29

To break the hypnotic trance of current events, we have to regain control of our awareness and bring it to the present moment. We get absorbed in dwelling on the past and anticipating the future as if they are real things. We give these memories and thoughts the equivalence of reality, as if they are actually happening now, but they are not. The past is past, over and done, and the future is only a mental concept. According to my watch the time is now Past is dead and gone Don't try to explain it just nod your head Breathe in, breathe out, move on We get caught in a mental and emotional trap of toggling back and forth between past and future, which clouds our experience of the present moment and multiplies uncertainty. Worry, sadness, guilt, shame, and regret easily take root and turn into stress, anxiety, fear, delusions and depression. When we bring our awareness to the present moment and focus only on what is immediately in front of us, we break the pattern of habitual thinking about the past and future. This naturally relaxes the mind and opens up a mental spaciousness that improves focus, clarity, perspective and attitude. Now you may be thinking that I was had But this watch is never wrong And if I have trouble the warranty said Breathe in, breathe out, move on The way to access the present moment is to bring awareness to the breath. Breathing is the most natural thing we do. Conscious breathing immediately begins to relax the body and deactivate the stress response system. The mind slows down and we are able to regain control over obsessive and unruly thoughts. It is simple and perfectly natural to do: breathe in slowly and deeply; then exhale fully, letting all the air out of your lungs. Breathe in deeply again and exhale slowly. Do this several times to raise the oxygen level in the blood and brain. Then, allow the breath to find its natural rhythm and let your awareness remain gently focused - “riding on” - the breath. As thoughts come up, just observe that your attention has wandered and return

it to resting on the breath. Don’t attach to thoughts and don’t judge yourself. Just relax, observe and breathe. As the mind begins to still, ask these questions: • What time is it? NOW • Where am I? HERE • What am I doing? BREATHING As you become more centered, calm and relaxed, ask this: • What needs my attention right now? • What is the next best thing to be done? Action that is inspired from a place of mental and emotional clarity is more productive and meaningful than reacting from turmoil, uncertainty and fear. We are able to move forward without being shackled to the past or future. In that place of calm and stillness, we can objectively reflect on the past, learn from it and plan for the future. We can move on with the light of awareness, rather than a subconscious habitual pattern of reactive thinking. As we struggle to breathe from our lungs and our souls, the time is NOW …  Breath In, Breathe Out, Move On. © Jimmy Buffett/Matt Betton

Steve Hornsby is a retired judge living in Memphis. He teaches mindfulness and professional development classes and coaches lawyers and other professionals. steve@judgehornsby.com 30

Tax Planning for 2020 with an Eye Toward 2021 Sponsored Article By PERRY GREEN, CPA/PFS, CFP®, CFA® Chief Financial Officer, Senior Wealth Strategist Waddell & Associates

ue to COVID-19 and the election, it’s likely that 2020 year-end tax planning will take on more significance than usual. Read on to preview possible income and estate tax planning implications of the election.

Scenario A: Trump Remains President Because the calculus is easier, let’s start with the planning implications of a Trump win first. Estate and gift tax laws are expected to remain the same. Year-end estate tax planning should focus on annual exclusion gifts and ensuring that clients’ plans are in line with their wishes. Spousal Limited Access Trusts

(SLATs) make sense for clients who wish to transfer future growth out of their estates but still retain access to amounts transferred. Individual income tax planning became easier with the passage of the Tax Cuts and Jobs Act (TCJA). The standard deduction was essentially doubled from 2018 ($12,400 for single taxpayers and $24,800 for married filing joint in 2020). Itemized deductions are

Table 1 31

Table 2 now allowed for: medical expenses in excess of 7.5% of Adjusted Gross Income (AGI), state and local taxes capped at $10,000, home mortgage interest, charitable contributions, and gambling losses to the extent of any winnings. This effectively limits annual personal income tax planning to the timing of charitable contributions. The increase of the standard deduction has made the tax benefit of grouping charitable contributions using a donor-advised fund even more advantageous. The charts below illustrate the potential impact of using a donoradvised fund to make five years’ worth of charitable contributions in one. In the illustration (Table 1), taking a large charitable deduction in 2020 and then the standard deduction in the following years reduces taxable income by $58,000 over the five-year period. Another wrinkle in charitable planning for 2020 is the opportunity to deduct charitable contributions up to 100% of AGI under the CARES Act. Congress was concerned about the effects of a recession on charitable gifting and increased the deductible amount of charitable contributions from 60% of AGI (assuming only cash gifts to public charities) or 50% of AGI (assuming a mix of cash and marketable securities) to 100% of AGI. In order to qualify, donations in excess of the normal 50% or 60% of AGI limits must be made in cash to a qualified 32

charity. The above chart (Table 2) illustrates the potential tax impact on a couple who is considering increasing their normal charitable contributions to take advantage of the 100% AGI limitation. The couple has until the due date of their tax return (October 15th if extended) to determine if they will limit their deductions to the normal 50% or elect to deduct 100% of their contributions in 2020. Deducting 100% eliminates their income tax liability, but not their Net Investment Income Tax. Taking the full deduction in 2020 provides a 16.2% tax savings while limiting the deduction to 50% provides a 23.6% tax benefit. If their effective tax rate is greater than 16.2% in 2021, they should use the old rules. If their effective tax rate is 16.2% or lower in 2021, they should deduct the full amount of contributions in 2020. Scenario B: Biden Becomes President What if we have a blue wave in November? The calculus gets much harder. According to the Tax Foundation, Biden’s income tax plan includes the following tax increases: • Increasing the top marginal tax rate from 37% to 39.6% and capping the value of itemized deductions at 28% for taxpayers making over $400,000

• Taxing capital gains at ordinary income tax rates for those making over $1 million • Restoring the Pease limitation on itemized deductions • Imposing the Social Security payroll tax on salaries and self-employment income over $400,000 • Reducing the current $11.58 million estate and gift tax exemption to the pre-TCJA levels and eliminating step up in basis for inherited assets How to Prepare Based on current proposals, here are some conversations I expect to have with clients between the election and year-end. If your taxable income is consistently over $400,000, using a donor-advised fund to accelerate future year’s charitable deductions into 2020. This could allow you to receive a 37% tax benefit instead of 28% and you would avoid the Pease limitation, assuming it is brought back to life. Highincome earners who have the ability to time salary or bonus should consider accelerating a portion of 2021

compensation into 2020 and avoid the additional Social Security tax. For taxpayers with AGI consistently over $1 million, consider selling some appreciated securities at the end of 2020 instead of waiting until 2021. This will lock in a 20% capital gains rate vs. a potential 39.6% rate. Taxpayers selling a business on an installment basis should consider electing out of installment treatment and pay the entire tax in 2020 instead of as payments are received. Individuals with taxable estates (in excess of $11.58 million single or $23.16 for a married couple) who can afford to do so should consider transfers in trust to use their current unified credit before the limits decrease. A SLAT can provide the opportunity to transfer assets out of the estate while retaining indirect access for those unwilling to give up complete control. As you can see, the election may have a significant impact on tax moves clients should make by year-end. Since it is possible for Congress to make tax changes retroactive to the beginning of the year, estate planning attorneys may be stuck working through the holidays.  33

Circuit Court Report by STEPHEN LEFFLER

Covers June 6, 2019 to May 13, 2020 DIV. 1: Felicia Corbin-Johnson 1. CT-002342-14: 10-17-19, Christy Hayes and Lee Hayes v. Tameka Brown-Hearns, Auto Accident, Jury, Allen Gressett, for Plaintiff, Craig B. Flood, II for Defendant. Defense verdict: 50% fault for each party. 2. CT-001282-17: 10-30-19, Steven S. Dortch, Jr, and Dortch Construction, LLC v. Latecia Pratt, Breach of Contract, Non-Jury, Donald R. Babineaux, for Plaintiff, Latecia Pratt, Pro Se. Plaintiff verdict: $1,141.57. 3. CT-003065-18: 12-18-19, Elishea Minniefield, Individually and as Legal Guardian of Mackinzie Minniefield v. Jervonnie Lee, Auto Accident, Jury, David S. Mays, for Plaintiff, Kathleen Solares for Defendant. Defense verdict: Case settled post-verdict for $5,000.

DIV. 2: James F. Russell NO REPORTED CASES THIS PERIOD

DIV. 3: Valerie L. Smith 1. CT-1024-19: 9-27-19, Upchurch Services, LLC v. Roco Management, LLC, Roco Lakes, LLC, Roco Mt. Moriah, LLC and Roco Woods, LLC, Breach of Contract (Repairs to Real Property), Non-Jury, Willliam E. Cochran, Jr. and Christopher M. Williams for Plaintiff, Dennis G. Sadler and W. David Darnell for Defendants. Plaintiff verdict: $24,014.02. 2. CT-003456-16: 10-7-19, Pamela Edwards-Fort and Donald Fort v. Mariah Kramer, Auto Accident, Jury, Shannon D. Elsea for Plaintiff, Lori D. Parish for Defendant. Plaintiff verdict: $15,000. 3. CT-004179-15: 10-28-19, Joshua Austin v. Vadim Ceban and Prosport Express, Inc., Auto Accident, Jury, Bill Wade for Plaintiff, Stephen W. Vescovo for Defendant. Plaintiff verdict: $216,000 (Gross Verdict $270,000 with 20% fault to Plaintiff). 4. CT-002434-18: 11-25-19, Kirby Parkway Professional Condominiums Association, Inc. v. Cindy-Jarvis Limited 34

L.P., Barbaa A Duncan-Cody and Homer L. Cody, Breach of Contract (Condo Fees), Non-Jury, Brandon F. McNary for Plaintiff, Coleman Garrett for Defendant. Plaintiff verdict: $49,829.52. 5. CT-002321-11: 12-16-19, Nicole Coppola v. J. Santos Magana Alvarez and Maria Alvarez, Auto Accident, Jury, Skip Carnell for Plaintiff, William Jeter for Defendant. Plaintiff verdict: $25,389.00. 6. CT-003149-18: 3-6-20, Jean White v. Jonathan Wiley, Breach of Contract (Dispute over construction of church pulpit), Non-Jury, Both parties Pro Se. Plaintiff verdict: Return the pulpit to the Plaintiff or reimburse $1,800 paid by church for the pulpit. 7. CT-004551-17: 3-17-20, Mary Walton v. Gerald Lynn Rutherford, Jr,, Auto Accident, Jury, Mark A. Lambert and Ethan D. Sandifer for Plaintiff, Ashleigh C. Kiss for Defendant. Plaintiff verdict: $2,067. 8. CT-001196-09: 5-13-20, Khadijeh Naraghian v. Darryle K. Wilson, Auto Accident, Jury, Walter L. Bailey and Janika N. White for Plaintiff, William Jeter for Defendant. Plaintiff verdict: $18,500.00 (Medical Expenses - $9,000; Pain and Suffering - $6,500; Property Damage - $3,000).

DIV. 4: Gina C. Higgins 1. CT-3021-19: 10-3-19, Chris Hudson v. Rachel Marmon, Breach of Contract (Rent), Non-Jury, Ben G. Sissman for Plaintiff, Rachel Marmon Pro Se. Plaintiff verdict: $2,325. 2. CT-000894-17: 11-7-19, John and Sherrykwang Glass v. Wanda G. Helal, Auto Accident, Jury, Clyde W. Kennan for Plaintiff, Dylan J. Gillespie for Defendant. Plaintiff Verdict: Sherrykwang Glass: $55,000.00 (Loss of Enjoyment of Life - $6,000; Pain and Suffering - $15,000; Permanent Injury - $32,000; Medical Expenses - $2,000) Donald Glass: $8,000 for pain and suffering.

3. CT-004511-15: 12-10-19, David Berretta and Suzanne Berretta v. Carrie Montague, Auto Accident, Jury, Bill M. Wade for Plaintiff, Forrest R. Jenkins for Defendant, Dylan J. Gillespie for UM. Plaintiff Verdict: $14,500.00 (David Berretta: Loss of Enjoyment of Life - $3,000; Pain and Suffering - $10,500. Suzanne Berretta: Loss of Consortium - $1,000). 4. CT-000252-18: 1-29-20, Laborn Richard and Natalie Richard v. William Baxter and Jasmine Smotherman, Auto Accident, Jury, David Cheek for Plaintiff, Dawn Davis Carson for Defendant, Jennifer Slager and Craig Lazarov for UM. Plaintiff verdict: Laborn Richard $2,115; Natalie Richard - $2,713. 5. CT-003081-17: 1-30-20, John L. Lynn v. Penske Truck Leasing Company, L.P., Auto Accident, Jury, Thomas R. Greer for Plaintiff, Harry W. LeBair IV for Defendant. Plaintiff Verdict: $615,000.00 (Past Pain and Suffering - $100,000; Permanent Injury - $180,000; Past Loss of Enjoyment of Life - $75,000; Future Loss of Enjoyment of Life - $6,000; Future Medical Expenses - $134,000; Loss of Earning Capacity - $120,000). 6. CT-000655-18: 2-24-20, Jerry Caldwell v. Lynsey Blackwell, Auto Accident, Jury, Juan Williams and Matthew Stombaugh for Plaintiff, Michael L. Mansfield for Defendant. Defense verdict.

DIV. 5: Rhynette Hurd 1. CT-001439-17: 10-8-19, City of Memphis, County of Shelby v. Michael Simpson, Code Violation, Non-Jury, James A. Robinson, Jr. for Plaintiff, Michael Simpson Pro Se. Plaintiff verdict: $50 fine plus costs and order to remove personal property from real property. 2. CT-003492-15: 12-11-19, Henrietta Ellis v. John Doe and Shelter Mutual Insurance Company, Auto Accident, Jury, Bill M. Wade for Plaintiff, R. Kent Francis and Stephen C. Barton for Defendant. Defense verdict: Jury found liability but no damages. 3. CT-4841-19: 2-5-20, Cynthia Barber v. Kevin A. Pollion, Auto Accident (Property Damage), Non-Jury, Both parties Pro Se. Plaintiff verdict: $1,853.96. 4. CT-002672-17: 2-21-20, Glenda Johnson v. Myra Akins, Auto Accident, Jury, Bill M. Wade for Plaintiff, Dawn Davis Carson for Defendant. Defense verdict: Jury found each party was 50% at fault.

DIV. 6: Jerry Stokes 1. CT-004371-14: 6-3-19, Robert Rodgers v. RentA-Center East, Inc., and Rent-A-Center Franchising International, Inc., Workers Comp, Non-Jury, Christopher L. Taylor for Plaintiff, Allen Grant for Defendant. Plaintiff verdict: Permanent Partial Impairment of 21%; Temporary Total Disability of $70,034.08; Attorney Fee of $14,006.82.

2. CT-004600-16: 9-18-19, Tammie Green v. Sabrina Cain, Auto Accident, Jury, W. David Cheek for Plaintiffs, Russell E. Reviere and Bailey Walden for Defendant. Defense Verdict: Jury found each party was 50% at fault. 3. CT-003541-18: 11-4-19, Anderson Contractors v. Kim Dawson, Breach of Contract (Home Repair), Non-Jury, Paola Palazolla-West for Plaintiffs, Thomas Branch for Defendant. Plaintiff Verdict: $18,601.37 (Quantum Meruit). 4. CT-005203-17: 2-4-20, Cidney Tates, a Minor by and through her Guardian, Christel Tates and Christel Tates, Individually v. Erika Sanders Gilbert, Premises Liability, Jury, Kevin N. Graham for Plaintiff, Richard C. Mangelsdorf, Jr. for Defendant. Plaintiff Verdict: Cidney Tates: $3,273; Christel Tates: $7,125. 5. CT-1028-19: 2-28-20, Sheila Adams v. Henry Hughes, Breach of Contract (Replevin), Non-Jury, Christian WestColeman for Plaintiff, Henry Hughes Pro Se. Plaintiff Verdict: $4,745.30. 6. CT-0003-20: 2-25-20, Michael Clements v. Charles Little, Breach of Contract (Repairs to Real Property), Non-Jury, Michael Clements Pro Se, Larry Wiseman for Defendant. Plaintiff Verdict: $2,000.

DIV. 7: Mary L. Wagner 1. CT-004603-16: 9-18-19, Tarina Washington v. Sabrina A. Cain a/k/a Sabrina E. Tate, Auto Accident, Jury, W. David Cheek for Plaintiff, Russell E. Reviere and Bailey L. Walden for Defendant. Defense Verdict. 2. CT-000973-18: 10-15-19, Kyla Robinson, Individually and as Next Friend of Michael Robinson v. Andrew Hutson, Auto Accident, Jury, Lan Chen for Plaintiff, Melanie M. Stewart for Defendant. Plaintiff Verdict: $421 (Medical Expenses). 3. CT-001255-18: 10-15-19, Jonathan White v. Erykah Onipede, Breach of Contract (Auto Repair), Non-Jury, Both parties Pro Se on appeal from General Sessions. Defense Verdict. 4. CT-004070-17: 1-21-20, Gayle Blanda v. Wesley Housing Corporation of Memphis, Inc., Premises Liability, Jury, Kevin N. Graham for Plaintiff, Richard C. Mangelsdorf, Jr. for Defendant. Defense Verdict. 5. CT-002595-17: 1-22-20, Nicola G. Broady v. Robert A. Silk and Shelby County Tennessee, GTLA (Auto Accident), Non-Jury, David Seigel for Plaintiff, Bruce Brooke and Bridgett Stigger for Defendants. Plaintiff Verdict: $119,426.99. 6. CT-005376-14: 1-29-20, Louise Faulkner and Earnest Faulkner v. Nationstar Mortgage, LLC, Real Property Dispute, Jury, Terrell Tooten for Plaintiff, Lauren Paxton Roberts and J. Anne Tipps for Defendant. Defense verdict. 35

7. CT-005658-18: 3-4-20, Jonathan Green v. Marcus Washington and Rosalva Washington, Auto Accident, Jury, Lan Chen for Plaintiff, Melanie M. Stewart for Defendant. Plaintiff Verdict: $10,105 (Medical Expenses - $6,805; Pain and Suffering - $3,000; Loss of Enjoyment of Life - $300) Reduced by 40% fault for a net verdict of $6,063.

DIV. 8: Robert S. Weiss 1. CT-001196-18: 11-14-19, Roger T. Wilkins and Latosha B. Wilkins, Individually and as Parents and Next Friend of Peighton Wilkins v. Cedric E. Bennem, Auto Accident, Jury, Thomas Greer for Plaintiff, Catherine H. Costitc for Defendant, Kathleen Solares for UM. Plaintiff Verdict: Roger T. Wilkins - $2,450; Latosha B. Wilkins $3,925.00; Peighton Wilkins: 0.00. 2. CT-002322-17: 12-2-19, Patricia Smothers and James Rhodes v. Angel Ortez, Auto Accident, Jury, Handel Durham, Jr. and Kenneth Margolis for Plaintiffs, Lynn D. Smith for Defendant.Plaintiff Verdict: Patricia Smothers: $43,713.88; James Rhodes: $18,833.75 (Gross judgment reduced by 5% fault to Patricia Smothers). 3. CT-003389-18: 12-3-19, Ephraim Urevbu v. Onix, LLC, Breach of Contract, Non-Jury, Earle J. Schwarz for Plaintiff, Andrew Bender for Defendant. Plaintiff Verdict: $2,500 (Offset by $2,500 deposit). 4. CT-002091-18: 12-11-19, Tina R. Crowe v. Dwayne A. Jones, Breach of Contract (Home Repairs), Non-Jury, Sterling Owens for Plaintiff, Christian West-Coleman for Defendant.Defense Verdict. 5. CT-005091-17: 12-17-19, Karen L. Carnegie v. Graham Y. Kemper, Auto Accident, Jury, Bobby F. Martin, Jr. for Plaintiff, Catherine Costict for Defendant. Plaintiff Verdict: $9,769. 6. CT-0775-19: 1-21-20, Sunshine Corporation v. Cortez D. Mack, Breach of Contract (Rent), Non-Jury, Lawrence E. Baer for Plaintiff, Cortez D. Mack Pro Se. Plaintiff Verdict: $6,978.30.

7. CT-004239-17: 2-3-20, Pyramid Financial, Inc. v. Anthonyâ&#x20AC;&#x2122;s Towing and Auto Repair, Replevin, Non-Jury, George Higgs for Plaintiff, Irwin I. Cantor for Defendant. Plaintiff Verdict: $6,000. 8. CT-000148-16: 2-11-20, Reginald Miller v. Mary Ann Bolden, Auto Accident, Jury, Quinton E. Thompson and Margaret Kelley for Plaintiff, Brandon W. Reedy and Bradford D. Box for Defendant. Plaintiff Verdict: $18,565,47 (Damages: Medical bills only on admitted fault). 9. CT-004899-17: 2-13-20, Sylvester Harvey v. Casey Wright Young, Auto Accident, Jury, Adam Johnson for Plaintiff, W. Christopher Frulla and Bradford D. Box for Defendant, Lawrence W. White for UM. Plaintiff Verdict: $16,743.07 (Medical Expenses - $10,103.87; Lost Wages - $639.20; Pain and Suffering - $6,000). 10. CT-001901-17: 2-21-20, Deloise Guinn v. John M. Browning, Auto Accident, Jury, Eric Lewellyn for Plaintiff, Robert L. Moore for Defendant. Plaintiff Verdict: $15,560.

DIV. 9: Yolanda R. Kight 1. CT-002666-18: 10-3-19, Phillip Mahnken v. Andrew Bettis Aviation, LLC, Breach of Contract (Employment), Non-Jury, William B, Ryan for Plaintiff, G. Coble Caperton for Defendant.Plaintiff Verdict for $7,331.88. 2. CT-003144-16: 10-29-19, Crystal Spearman, Individually and as Parent and Next Friend of Kenji Lewis v. Shelby County Board of Education and Shelby County Schools, GTLA, Non-Jury, Derek O. Fairchilds for Plaintiff, Kenneth M. Walker, Andre B. Mathis and Shanell L. Tyler for Defendant. Plaintiff Verdict: $200,000.

United States District Court

WESTERN DISTRICT OF TENNESSEEâ&#x20AC;&#x201D;WESTERN DIVISION by DEAN DECANDIA

Covers January to June 2020 FOWLKES 1. USA v. Kevin Wynn: Trial from Feb 24 to 27. Indicted for possessing ammunition and two firearms while a convicted felon, receiving a firearm while under indictment, possession of marijuana with intent to distribute, possession of a firearm in furtherance of a drug trafficking crime. Verdict: Not guilty. Prosecution: Wendy Cornejo, Joseph Griffith Defense: Coleman Garrett, Andre Thomas

LIPMAN 1. USA v. Carlos Landeros-Saucedo: Trial from Feb 10 to 12. Indicted for possession of a firearm while an illegal alien, possession of cocaine with intent to distribute, possession of a firearm in furtherance of a drug trafficking crime. Verdict: Guilty as indicted. Prosecution: Marques Young Defense: Mary Catherine Jermann-Robinson, Peter Oh

2. USA v. Charlie Patterson: Trial from Mar 9 to 12. Indicted for possessing a firearm while a convicted felon. Verdict: Guilty as indicted. Prosecution: David Biggers, Wendy Cornejo Defense: Peter Oh, Mary Catherine Jermann-Robinson

NORRIS 1. USA v. Zachary Fuchs: Trial from Feb 3 to 6. Indicted for possessing 50 grams or more of methamphetamine with intent to distribute. Verdict: Guilty as indicted. Prosecution: Joseph Griffith, Sean Hord Defense: Ned Germany, Robert Thomas

Brian Faughnan Elected President-Elect of the Association of Professional Responsibility Lawyers

Lewis Thomason Names New Shareholders Samantha Bennett focuses her practice primarily in the areas of medical malpractice defense and insurance defense. Before attending law school, Bennett spent several years working as a medical malpractice paralegal and held a position as an adjunct professor in The University of Memphis Department of Political Science. A 2012 magna cum laude graduate of The University of Memphis Cecil C. Humphreys School of Law, she is a member of the Memphis Bar Association and the Tennessee Bar Association. Natalie Bursi practices primarily in the areas of health care liability defense and insurance defense. She has served on the Board of Directors of the Memphis Bar Association and is a member of the Tennessee Bar Association. Bursi earned her B.A. magna cum laude at the University of Tennessee, and her J.D. cum laude at the University of Memphis. Laura Deakins focuses on appeals, health care law, personal injury litigation and professional liability. She is a member of the Association for Women Attorneys (AWA), serves on the Executive Counsel for Appellate Section of the Tennessee Bar Association, and is a Hearing Committee Panel Member of the Tennessee Board of Professional Responsibility. She is a member of the Tennessee Supreme Court Historical Society, the Leo Bearman, Sr. American Inns of Court, and the Memphis Bar Association. She earned her J.D. at the University of Memphis. Nicholas L. Vescovo regularly counsels clients ranging from startups and emerging companies to individual artists and performers to multi-national corporations on all types of intellectual property issues. He has handled matters before the United States Patent and Trademark Office, the United States Copyright Office, the Internet Corporation for Assigned Names and Numbers, and the Trademark Trial and Appeal Board. Vescovo is a member of the American Bar Association Intellectual Property Law Young Lawyers Action Group Section, the Tennessee Bar Association Young Lawyers' Division and the Memphis Bar Association Young Lawyers' Division. He earned his B.S. and his J.D. at the University of Memphis. 38

Brian S. Faughnan, shareholder in the Memphis office of Lewis Thomason, was recently elected the President-Elect of the Association of Professional Responsibility Lawyers. A frequent author and speaker on ethics and professional responsibility issues, he shares his thoughts on ethics and lawyering at his blog, Faughnan on Ethics. He is a co-author of the book “Professional Responsibility in Litigation” and “Professional Responsibility in Litigation, Second Edition” published by the ABA. He is a member of the American Bar Association, Tennessee Bar Association, and Memphis Bar Association, and is a Fellow of the Tennessee Bar Foundation. Faughnan earned his J.D. at the University of Memphis, magna cum laude. He holds a B.A. from Rhodes College. Faughnan serves as Lewis Thomason's Associate General Counsel and works in conjunction with the firm's president in all ethics and professional responsibility matters within the firm. Faughnan’s practice is focused on commercial litigation, appellate litigation, and media law. The Association of Professional Responsibility Lawyers is comprised of more than 450 lawyers, law professors and judges holding an interest in lawyers’ professional responsibility, legal ethics, legal malpractice, and the evolving law of lawyering, primarily through the application of the rules of lawyer ethics to the practice of law. APRL was founded in 1990.

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Memphis Lawyer Magazine Vol. 37 Issue 3

Articles inside

Classifieds

United States District Court

People in the News

Tax Planning for 2020 with an Eye Toward 2021

The Time is

Team MBA Runs for St. Jude

CLC: DACA Limbo During COVID-19 Health Crisis

Equal Justice Under Law: Reforming our Criminal Justice System

The Realities of Diversity in the Legal Profession

A View from the Balcony - But Not Really

Bar Unity March

President’s Column

A CLERB With Teeth Subpoena Power Is Irrelevant