the magazine of the Memphis Bar Association | Vol. 40, Issue 3, Fall 2023
Making History
A Conversation with Presiding Judge Camille R. McMullen THIS ISSUE:
The End of Affirmative Action & Elevated Importance of Workplace Culture to Diversity in the Legal Profession Is ChatGPT Ready to Be Your Second Chair?
Law School in the Age of ChatGPT: Adapting to a New Legal Landscape
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Volume 40, Issue 3, Fall 2023
FEATURES 6 Making History: A Conversation with
Presiding Judge Camille R. McMullen
10 The End of Affirmative Action and Elevated Importance of
Workplace Culture to Diversity in the Legal Profession BY DEMETRIA FRANK
14
Is ChatGPT Ready to Be Your Second Chair? BY CHARLES SILVESTRI HIGGINS
17 Law School in the Age of ChatGPT: Adapting to a
New Legal Landscape BY JODI L. WILSON
COLUMNS 5 President's Column BY JENNIFER SINK
21 MALS Corner: Building a Better Community Through
Access To Justice: How Lawyers Support for Mals Makes a Difference in our Community BY SCOTT CROSBY
23 Community Legal Center: The Community Legal Center
Celebrates Pro Bono! BY DIANA M. COMES
25 Wellness Corner: Creating Conscious Culture:
A Framework for Workplace Well-Being BY CINDY PENSONEAU
28-36
Bar Scene
38
People in the News
MEMPHIS LAWYER the magazine of the Memphis Bar Association
Memphis Bar Association Publications Committee Amber Floyd, Co-Chair Nicole Grida, Co-Chair Audrey Calkins Maureen Holland Taylor Flake Lawson Skkye Moreno
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 info@memphisbar.org. The MBA reserves the right to reject any advertisement or article submitted for publication.
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Mary Ann Upchurch Executive Director
The Memphis Bar Association 145 Court Ave. Suite 301 Memphis, TN 38103 Phone: (901) 527-3573 www.memphisbar.org
Lauren Gooch Membership & CLE Director
Kelly Swan
Communications Director
PRESIDENT'S COLUMN
By JENNIFER SINK, MBA 2023 President
M
emphis always has a lot to be proud of, but 2023 has been a stellar year for Memphians breaking ground in the legal profession. Our community of judges in particular are making waves, being selected for prominent leadership positions by their peers. This issue of Memphis Lawyer highlights the historymaking Judge Camille McMullen, who recently became the first African American and first woman to be elected as Presiding Judge of the Criminal Court of Appeals for the State of Tennessee. We are fortunate that Judge McMullen is only one example of prominent, ground-breaking leadership arising out of our Memphis legal community, as there were several other notable achievements this year: •
Justice Holly Kirby – elected to the position of Chief Justice of the Tennessee Supreme Court
•
Judge Deborah Henderson – first African American elected President of the General Sessions Judges Conference
•
Judge Carolyn Blackett – selected Chief Judge of Shelby County Criminal Court
•
Judge Valerie Smith – elected as President of the Tennessee Judicial Conference
educational institutions and the workplace. Some law firms and educational institutions are announcing an end to DEI hiring policies and training. Despite this, a 2022 Workplace Climate Survey conducted by the Memphis Bar Association reveals that Memphis lawyers value principles of diversity, equity, inclusion, belonging, and access, and further, support related policies in the workplace. I have no doubt that our community, leading by example like our judiciary, will continue to demonstrate that diversity, equity, and inclusion in our profession is important, beneficial, and necessary. Congratulations to our Judges and lawyers who are being recognized for their competency and leadership across the State, and thank you for representing Memphis!
This is just the tip of the iceberg; we have numerous attorneys selected, elected, and recognized for their leadership and achievements, too many for me to even list here. The growing diversity and representation amongst the judiciary and attorneys, and importantly, in leadership roles, is a reflection of our community and our values. But all of this comes in the face of constitutional challenges to equity, diversity, and inclusion in 5
Making History
A Conversation with Presiding Judge Camille R. McMullen more interested in advocacy and developed a passion for becoming a voice for those who didn't have one. I became exposed to politics in college, and I really didn't like all of the grey areas. The law provided a lot more answers than politics and law school was a natural progression for me.
J
udge Camille R. McMullen has a history of making history. To begin, she was the first in her family to become an attorney after receiving her law degree from The University of Tennessee College of Law in 1996. After working as a state and federal prosecutor for 11 years at a time when few women were practicing criminal law, in 2008, she became the first African American woman to serve on any appellate court in Tennessee when she was appointed by former Governor Phil Bredesen to the Tennessee Court of Criminal Appeals. Most recently, Judge McMullen achieved two historic milestones at once after being unanimously elected by her peers as the Presiding Judge of the Tennessee Court of Criminal Appeals, becoming the first African American and the first woman to hold this position in Tennessee’s history. Our MBA President, Jennifer Sink, sat down with Judge McMullen to discuss the goals for her new role, her thoughts on Memphis and crime, the impact of diversity in our profession, and the role for social media in the law and by judges. Q: Why did you pick the legal profession? I have always enjoyed speaking and in high school I first really got involved, believe it or not, in mock trial. I love the cadence of poetry and prose. In college, I became 6
I did not know exactly what kind of lawyer I wanted to be and quite frankly, as a first-generation lawyer, you really don't know how your journey will materialize. I tried to obtain as many different types of exposures to the law along the way, which guided my path and enabled me to align my passion for advocacy with the legal profession. Q: You mentioned that in college, you developed a passion for having a voice for those who couldn’t speak for themselves. Was there a pivotal moment that occurred? There was a lot of activism at the time, although it was nothing compared to what my parents’ generation went through. I was very active in our student government and Greek organizations on campus. I was the SGA President, and I was instrumental in getting an African American Cultural Center on campus. In doing so, I developed confidence in my ability to advocate on behalf of others. The fact that I come from a military background had something to do with it too. In retrospect, looking back on my upbringing, it was very rule based. My sister and I had a very regimented and disciplined upbringing. I believe my formative years shaped my desire to resolve conflict with a set of identifiable rules that everyone can understand and abide by. I also believe moving from state to state or country to country at times sharpened my ability to communicate with people from different backgrounds and/or cultures.
Q: What shaped your professional choice to practice criminal law? My parents raised me to believe that you should find a profession that you are passionate about, so you will never get tired of work. They also taught me to seek out a profession which aligns your passion with your purpose. Going through law school, I was trying to find a space that met these principles and was comfortable for me. I had previously clerked for a major law firm in Nashville, but I just did not feel like it was the best fit. I knew I enjoyed writing, and I also enjoyed oral advocacy. I was fortunate to receive a clerkship with a criminal appeals court judge, which is where my passion for criminal justice truly began. When I got my clerkship with Judge Riley on the Court of Criminal Appeals, I narrowed my focus on criminal justice. The clerkship was invaluable because he was able to talk to me about what it meant to be a lawyer and how to use my voice to advocate. Judge Riley would always emphasize it really doesn't matter how much you know, it matters how hard you're willing to work. Q: After your clerkship, you began working as a criminal prosecutor in the Shelby County District Attorney’s office and later as a federal prosecutor. Why did you make the choice to work as a prosecutor as opposed to representing the defendants? Two words — prosecutorial discretion. I wanted the power to be able to make the decision to indict or dismiss a case. I wanted a seat at the table where that decision was being made. No matter how well a criminal defense lawyer represents her client, it means nothing if their concerns are not heard and acted upon by the prosecutor. I still believe that line prosecutors are the most powerful people in our community. They may not realize it all the time, but they have a direct impact on people’s lives. They are also not appreciated enough for the tough decisions they are required to make. Their decisions have a ripple effect on and reverberate throughout the community.
Q: When you began your career as a prosecutor, there were not many African American women in that space. Has that changed in your view, and has it changed enough? I do think that has changed. I never think it's going to be enough. I think we as women of color are constantly questioning whether we belong because we don't see enough of us in these spaces. When I became a prosecutor, there were very few African American women in criminal law. Now I look at the criminal bar, and I see so many women of color I'm excited that we're blazing trails. We have something to offer. It is important for people in our community to see people that reflect them in the court system because it gives them a certain level of trust in a system that they're very mistrustful of. Diversity in our profession has positive ripple effects in the community. Q. Following the U.S. Supreme Court’s decision finding race-conscious admissions in educational institutions are unconstitutional, there has been a growing backlash against diversity and inclusion efforts, with some law firms and businesses challenging the consideration of diversity as a factor in hiring. As a judge, I am ethically prohibited from addressing those issues. Lawyers, however, are advocates, and I think there's a difference. I think lawyers should utilize their roles as advocates to address these concerns. Otherwise, I think we're just going to have bigger problems in the future, especially for the next generation. I'm a firm believer in diversity and inclusion in the workplace. Whether you're on the bench or a lawyer in a case, I think the outcome is richer when you have diverse voices. Q. What role should the Memphis Bar Association play in speaking publicly about political, cultural, or social issues? Historically, bar associations have been at the forefront of these issues because they're organized and 7
have the tools and skills to address them. It's a place where everybody goes to talk about what's going on, and it provides an environment for people to share ideas on how to address these issues. There is a role for bar associations to partner with other organizations that are like minded in addressing a lot of these issues. Q. I have noticed that you have really increased your social media presence in the last year. What made you start and what are you hoping to communicate? I think that social media is a powerful tool, and I never appreciated how powerful it is. As an appellate judge, we are behind the scenes and out of the public eye. The general public really does not know what we do. In an effort to be more transparent, I have tried to use social media to share with the community what we do and more about the criminal justice system. I provide court updates, legislative updates, and I highlight what is good about the judiciary. I will give tips on becoming a lawyer, getting into law school, and becoming a law clerk. I'll direct people to available resources if they want to find more information about a particular topic. I just want to continue to highlight the good work many in the court system are doing. Every election, friends and family ask about different types of judges and what they do. My hope is to better educate the public before it is time to cast their votes. Q: You are not only the first African American, but the first woman, elected to the position of Presiding Judge of the Tennessee Criminal Court of Appeals. It begs the question, why did it take so long? I don't know the answer to that. I'm thankful that my colleagues found me worthy of the position. It is an incredible honor. Q: What are your goals as Presiding Judge? I will align our goals on the Tennessee Court of Criminal Appeals with those of the Tennessee Supreme Court (TSC). I was most pleased to hear the ongoing efforts of the TSC in attempting to increase the pay rates for appointed counsel in indigent representation cases. This is long overdue, and I will support their efforts in any way I can. I also want to make sure we are more transparent, which means embracing technology and improving court accessibility. I will be collaborating 8
with other presiding judges across the country on ways in which to improve the court system overall. We've always done some outreach in the community; however, I would like to improve those efforts and have at least one session in every law school and college in the state. And of course, using the Tennessee Courts YouTube channel to show all of our oral arguments. This is another way to increase transparency and educate the public on how we conduct the business of the court. It is also a way for the family of the victim and the family of the defendant to attend court without being physically present. Q. Who are some people you admire or consider a mentor? I cannot say that I have only one mentor because I draw inspiration and strength from different figures in my life. First, I admire my mother, who worked as a school teacher and raised a family of four. I never appreciated just how much she sacrificed for her family until I had a family of my own. Second, although not well known, I admire Anna Julia Cooper, and Constance Baker Motley. I cite Cooper and Motley because whenever I might feel discouraged, overlooked, or undervalued, I am reminded of the many women of color who came before me, and I know they experienced so much worse than I ever did or will. Yet, they continued to strive for excellence in all of their endeavors. And finally, closer to the Memphis community, I cite Judge Bernice Bouie Donald for her enduring spirit. Whenever I face challenges, I think
about Judge Donald and how unyielding she is in her efforts to uplift the community and women in particular. Q. You have been an (award-winning) coach for your daughter’s high school mock trial team and regularly hire law clerks who have just graduated. What do you see for the future of the legal profession? I believe the future of the legal profession is bright. It is somewhat of a full-circle moment to see my daughter compete in mock trial with other students from across Tennessee. From what I have observed, the future of the practice is in good hands. I commend the Young Lawyers Division of the Memphis and Tennessee Bar Associations for continuing to develop complex and challenging problems for the students, so they can get an idea of what to expect as a lawyer and an advocate. I am proof that such programs are beneficial and foster growth in the profession. I am also confident in the future of the legal profession based on the many law clerks that have served in my chambers and for the Tennessee Court of Criminal Appeals. I’m particularly excited to say that most of my clerks have committed to working in the field of criminal law. I have enjoyed mentoring them and making sure the people who leave my office are trained and well prepared for the practice of law. Most recently, my former law clerk was hired by the Appellate Defenders Division.
Q: What makes Memphis unique? In my role as an appellate judge, I travel across the State, and I hear cases from Mountain City to Memphis. From Beale Street to the blues, there is definitely something special about the Bluff City! The city is unique because of its people. I think this is reflected in the bar by the lawyers in Memphis, who are creative, crafty, and smart. Some great examples from my 201 Poplar days are Marvin Ballin and Melvin Turner. I remember when Marvin and I were in trial, he passed me notes with jokes on them. (I won’t mention what they said)! I could not help but laugh! I realized later how well he was at distracting me from the jury. I also learned the hard way that trying cases against Melvin was never easy. He had a way about him that made the jury want to hear more of what he had to say, and frown every time I stood up to open my mouth! I have loved everything about growing up as a lawyer in Memphis, and am thrilled to be a part of this amazing legal community! Judge Camille R. McMullen has been named the recipient of the 2024 Marion-Griffin-Frances Loring Award by the Association of Women Attorneys. Judge McMullen is married to attorney Bruce McMullen and they have two children, Reese and Zoe. She is a member of the Memphis, Tennessee, and National Bar Associations; Tennessee Lawyers Association for Women; National Association of Women Judges; International Women’s Forum (Memphis Chapter), Leo Bearman, Sr., Inn of Court (Master). She is also a Fellow of the Tennessee Bar Foundation and a Fellow of the Memphis Bar Foundation. She is a frequent speaker for various groups in the community including the Tennessee Bar Association (oral argument and brief writing); the Tennessee Association of Defense Lawyers (basics of appellate process); the Association of Women Attorneys; and the National Association of Black Prosecutors. She also serves on the Board of Directors of Christian Brothers High School. She was appointed by the Tennessee Supreme Court in 2019 to the Board of Judicial Conduct, which oversees disciplinary complaints against state judges; and to The Rules Commission, an advisory commission which makes recommendations to the Tennessee Supreme Court on amendments to the rules of state practice and procedure. Her social media handle is @judgemcmullen. 9
The End of Affirmative Action and Elevated Importance of Workplace Culture to Diversity in the Legal Profession By DEMETRIA FRANK
A
ffirmative action has, for decades, functioned as a mechanism to counteract deeply rooted biases and systemic disadvantages faced by groups historically marginalized and underserved. In the legal profession, a field that is traditionally non-diverse and that fundamentally operates upon principles of justice, equity, and fairness, the end of affirmative action poses significant challenges. One of the immediate and obvious concerns is the potential reduction in the number of students of color in law schools, and in turn, within the legal profession itself. Diversity is not simply a metric of representation, it impacts the potential range of perspectives, experiences, and voices that inform legal arguments, decisions, and broader discourse in the legal community. The end of affirmative action might mean that historically marginalized groups find themselves with fewer opportunities to enter colleges and law schools, which can have long-term impacts on the profession and access to legal representation. As the legal community grapples with the consequences of Students for Fair Admission v. Harvard, the importance and interplay of workplace climate and culture become critical factors in forging new paths toward a more diverse legal profession. THE MBA WORKPLACE CLIMATE SURVEY The Memphis Bar Association launched its legal workplace climate survey in September 2022 at its annual Bench Bar Conference. The survey was drafted by the MBA’s Diversity and Outreach Committee, under the direction of MBA Immediate Past President Tannera Gibson, to help the MBA identify clear objectives going forward for the maintenance of a supportive and productive Memphis Bar. 10
A climate survey can be helpful to meeting diversity, equity, inclusion, belonging, and access (DEIBA) objectives by gathering information from a group who have a shared experience, such as practicing law in Memphis, and providing insight about different perspectives within that shared experience. One hundred and twelve (112) lawyers responded to the MBA’s 2022 legal workplace climate survey, with a broad range of demographics, experience levels, and workplace types represented. There were sixty-eight (68) women and forty-one (41) men who took the survey, with three (3) respondents choosing not to identify by gender, and eight percent (8%) of respondents identifying as LGBTQIA+. Sixty-two percent (62%) of all respondents worked at private law firms, with the greatest number of respondents (27%) aged between 35-44 years. Twentysix percent (26%) of all respondents indicated that they were first generation college graduates. VALUE OF DEIBA Overall, the survey responses indicated that Memphis lawyers value DEIBA principals. This was revealed by responses to a variety of questions addressing the value of diversity demographics and principals in the workplace. For example, one survey question asked Memphis lawyers to indicate their agreement with statements related to the value of DEIBA, including “it is important to me that demographic diversity in the legal field is representative of the broader community” to which ninety-two percent (92%) of respondents indicated that they “strongly” or “somewhat” agree. Another question requested that respondents indicate their agreement with the statement “it is important to me that my workplace adopt inclusive and equitable policies and practices,” to which ninety percent (90%) of respondents indicated that they “strongly” or
“somewhat” agree. Additionally, eighty-five percent (85%) of respondents indicated that diversity, equity, and inclusion are important to them in reaching career goals, while eighty-one (81%) of respondents indicated that possessing cultural proficiency skills would make them a better attorney. GROWTH AREAS Recruitment, Retention, & Inclusion Despite the general value of DEIBA principals amongst members of the Memphis Bar, the policies and practices of many Memphis legal employers likely lag in reflecting this commitment. For instance, seventeen percent (17%) of respondents either strongly or somewhat disagree that their current workplace implements policies and practices “reinforce commitment to diversity, equity, and inclusion.” Twelve percent (12%) of respondents indicated that their work environment did not have a “welcoming and affirming climate or atmosphere.” Although 12% may not seem substantial, this is important because an inclusive, welcoming, and supportive environment can make the difference in retaining talent generally and especially from diverse backgrounds. A positive workplace climate can provide attorneys with a sense of belonging, which is particularly crucial for members of historically excluded groups who might already feel like outsiders due to the lack of representation in legal environments. A positive workplace climate can thus be a crucial factor in retaining talent, reducing turnover costs, and maintaining institutional knowledge, while a non-inclusive environment can lead to higher attrition rates. Nevertheless, according to the workplace climate survey, thirty percent (30%) of respondents indicated that celebrations at their workplace did not reflect various cultures or introduce the workplace community to new cultures. Thirty-one percent (31%) of respondents indicated that they are singled out or expected to speak on behalf of a specific group at their workplace because of a characteristic or belonging to that group. Eight percent (8%) of respondents indicated that they are not able to acknowledge significant others and/or their sexual orientation freely in the workplace. Even in the absence of affirmative action policies in college and legal education, law firms with a reputation for an inclusive environment are more likely to attract talent from diverse backgrounds. Not surprisingly,
twenty-eight percent (28%) of respondents disagree that attorneys are well represented from various demographic groups in their workplace and twenty percent (20%) of respondents indicated a lack of active recruitment of attorneys from diverse groups in their workplaces. Also significant, thirteen percent (13%) of respondents had considered applying for other legal jobs, eight percent (8%) considered changing careers, and seven percent (7%) considered not recommending their workplace as an employer to other attorneys as a result of discrimination, harassment, or a lack of inclusion in their current or most recent workplace. The retention of attorneys, especially those from diverse backgrounds, is not just a matter of hiring practices. Even if law firms successfully recruit a diverse cohort of attorneys, the long-term success of these hires will be largely determined by the workplace climate. Hence, employers would be wise to update policies and practices in ways that make workplace life more welcoming and affirming considering how tight and competitive the market for attorneys of color will likely become post affirmative action. Professional Development Support Moreover, a healthy workplace climate encourages professional development, which can offset some of the potential setbacks that the end of affirmative action might pose for marginalized groups. A supportive environment often fosters learning and mentorship opportunities that can be a lifeline for new attorneys navigating the intricacies of the legal field. Such supportive environments and programs become even more essential in the absence of affirmative action. Yet, at least forty percent (40%) of survey respondents indicated that there are no identified training or support programs that promote success and retention of attorneys at their workplace. Moreover, thirty-five percent (35%) indicated that their legal employer does not have an identified orientation or onboarding process for those that join their workplace as a new attorney. Additionally, seventeen percent (17%) of survey respondents indicated that they do not believe intentional efforts are made so that all employees have access to what they need to effectively perform job responsibilities at their legal employers. Twenty-one percent (21%) do not believe their workplace provides growth opportunities that motivate them to work for the organization.
Navigating the Challenges The end of affirmative action undeniably poses challenges to the legal profession. However, it also brings to light the importance of other crucial DEIBA elements like workplace culture and opportunities for professional development. The legal community must recognize and prioritize the creation of diverse, equitable, and inclusive environments, not just as a reactionary step to the end of affirmative action, but as a foundational principle. A positive workplace climate that includes ample professional development opportunities can be a critical force in ensuring that the legal field becomes and remains diverse, vibrant, and truly representative of the society it serves.
Demetria Frank is a cultural climate, access, and belonging strategist and former professor and Associate Dean for Diversity and Inclusion at University of Memphis School of Law. She has been in legal education for over 12 years, is the founder of DD Consulting, and is co-author of the forthcoming text, Culturally Proficient Lawyering, under contract with Aspen Publishing.
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Is ChatGPT Ready to Be Your Second Chair? By CHARLES SILVESTRI HIGGINS
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1
penAI’s ChatGPT has made the grade in law school 2 and aced the bar exam, but is it ready to litigate in court? The case of Mata v. Avianca, Inc. offers a cautionary tale. There is no doubt that ChatGPT is a groundbreaking piece of artificial intelligence (AI) technology. It is a large language model-based chatbot capable of mimicking human conversation and writing. The chatbot, launched publicly in November 2022, relies upon a massive corpus of data (books, articles, basically the entire internet), to respond to user prompts. For instance, ask ChatGPT to write an essay on the effects of the Industrial Revolution, and within a few seconds, the chatbot will produce a paper that will likely earn a high school senior a decent grade in her history class. ChatGPT can write poetry, essays, and song lyrics in the style of famous artists. In addition to scoring in the 90th percentile on the Uniform Bar Exam, ChatGPT scored in the 93rd percentile on the reading and writing section of the SAT, passed the United States Medical Licensing Exam, and even passed the Advanced 3 Sommelier exam without tasting a sip of wine.
But what happens if you ask ChatGPT to write a response in opposition to a defendant’s motion to dismiss? New York attorneys Peter LoDuca and Steven Schwartz found out the hard way. The case started out simply enough. LoDuca and Schwartz filed suit in New York state court on behalf of a client who had been struck and injured by a beverage cart 4 on a commercial airline flight. The defendant removed the case to federal court (Southern District of New York) and then filed a motion to dismiss based on the statute 5 of limitations and the Montreal Convention. LoDuca and Schwartz filed a response brief arguing that the statute of limitations had been tolled, and they cited to 6 and quoted from several cases for support. There was just one problem: neither defense counsel, nor District Court Judge P. Kevin Castel, could find the cases using 7 the citations plaintiff’s counsel provided in their brief. 14
Judge Castel entered a show cause order requiring the attorneys to file copies of the cases in question with the 8 court. LoDuca complied, filing an affidavit and attaching 9 full-text copies of six court opinions. Combined, the cases submitted by LoDuca total over fifty (50) pages and 10 appear at first glance to be actual court opinions. For example, LoDuca provided the case of Varghese v. China Southern Airlines Co. Ltd, 925 F.3d 1339 (11th Cir. 2019), authored by Circuit Judge Jordan and joined by 11 Circuit Judges Rosenbaum and Higginbotham. Judges Jordan, Rosenbaum, and Higginbotham are the names of 12 real Circuit Court Judges. The opinion is six pages long, sets out the facts of the case, summarizes the legal issue, includes the court’s holding, and cites to other court 13 decisions as precedent. The Varghese case, however, does not exist. Judge 14 Castel describes it as “a non-existent or bogus opinion.” In addition to his own legal research, Judge Castel contacted the 11th Circuit Clerk to verify the case, and 15 the clerk could find no record of the case or opinion. Moreover, many of the cases cited within the Varghese 16 opinion are non-existent or bogus. The other five (5) full-text opinions provided by LoDuca in response to the 17 show cause order are also non-existent or bogus, but look real enough, albeit copied and pasted into a Word document from some internet source. Judge Castel issued another show cause order and set an in-person hearing to get to the bottom of the matter, 18 and he warned that sanctions could be forthcoming. At this point, the other plaintiff’s attorney, Schwartz, came clean and took the blame. He filed a declaration explaining that he normally does not practice in federal court and that his law firm did not have a legal research 19 program available for him to search federal cases. After learning about ChatGPT from his “college-aged children,” he decided to use the chatbot to help him 20 research a response to the motion to dismiss. Schwartz attached to his declaration excerpts from his conversation
with ChatGPT. He asked the chatbot to “argue that the statute of limitations is tolled by bankruptcy of defendant pursuant to montreal convention,” and then 21 incorporated the chatbot’s response into his brief. He also commanded the chatbot, “provide case law in support that statute of limitations is tolled by bankruptcy of defendant under montreal convention,” and ChatGPT provided citations and descriptions of numerous cases, 22 including fictitious ones. After the court’s initial show cause order, Schwartz went back to ChatGPT and asked it to provide the full text 23 of the opinions. When the chatbot produced the text of the opinions, Schwartz copied and pasted the text into a Word document and filed it with the court. Schwartz never turned to a reputable legal research database to confirm the cases were real—a tremendous lapse in judgment he 24 acknowledged and apologized for in his declaration. It is chilling that ChatGPT wrote fake court opinions to satisfy Schwartz’s prompts. Again, the fake opinions drafted by ChatGPT are detailed and could pass (especially to the untrained eye) as real court decisions. Even ChatGPT’s programmers cannot explain why the chatbot would do this or how it gathered the information to draft the opinions. It is an example of the phenomena programmers have called “hallucinations” or “confabulations,” that is when 25 a chatbot makes up information or acts inappropriately. Given ChatGPT’s sophistication and its large database, it is capable of creating highly convincing fakes, and not just of legal opinions. User beware.
1
2
3 4
5
Todd Nelson, Four Professors Reflect on their Globally Reported ChatGPT Experience, Minnesota Law Magazine (Spring 2023), available at https://minnesotalawmag.law. umn.edu/stories/four-professors-reflect-ontheir-globally-reported-chatgpt-experiment. Lakshmi Varanasi, Here’s a list of the difficult exams both AI versions have passed, Business Insider.com (June 25, 2023), available at https://www.businessinsider.com/list-hereare-the-exams-chatgpt-has-passed-so-far2023-1?op=1.
ChatGPT demonstrates the power, potential, and dangers of artificial intelligence. Many companies, including Westlaw and LexisNexis, are investing heavily in developing AI tools for the legal profession. It seems likely that lawyers will increasingly have to navigate the potential benefits and risks of using AI in their practice. Schwartz and LoDuca have provided an instructive example of what not to do. Charles Silvestri Higgins is a trial lawyer and member at Burch, Porter & Johnson, PLLC. Mr. Higgins focuses his practice on representing plaintiffs in personal injury, wrongful death, and medical malpractice cases.
6
ECF No. 21.
18
Id.
7
See ECF No. 31.
19
ECF No. 46.
8
Id.
20
Id. ¶ 14.
9
ECF No. 29
21
ECF No. 46-1.
10
See ECF No. 29-1 to 29-8.
22
Id.
11
ECF No. 29-1.
23
ECF No. 46, ¶ 25.
12
Judges Adalberto Jordan and Robin S. Rosenbaum serve on the 11th Circuit. Judge Patrick Higginbotham serves on the 5th Circuit.
24
Id. ¶¶ 25, 36.
25
See, e.g., Catherine Thorbecke, AI tools make up a lot, and that’s a huge problem, CNN. com (Aug. 29, 2023), available at https:// www.cnn.com/2023/08/29/tech/ai-chatbothallucinations/index.html.
26
ECF No. 54.
27
Id. at 1.
28
ECF No. 55.
Id.
13
ECF No. 29-1
See Compl., ECF No. 1, Mata v. Avianca, Inc., 22-cv-1461 (S.D.NY.) (Feb. 22, 2022). The case docket is available at www.pacer.gov.
14
ECF No. 31.
15
Id.
Id.; ECF Nos. 16, 18.
On June 22, 2023, Judge Castel issued a 34-page sanctions order against Schwartz and LoDuca, ordering 26 them to pay a total fine of $5,000. The court found Schwartz and LoDuca made “acts of conscious avoidance and false and misleading statements to the court” and admonished that legal ethics rules “impose a gatekeeping 27 role on attorneys to ensure the accuracy of their filings.” The court dismissed the plaintiff’s personal injury case in 28 a separate order. Schwartz and LoDuca are now famous for all the wrong reasons and will surely be the subject of innumerable legal ethics CLEs in the years to come.
16
Id.
17
Id.
15
16
Law School in the Age of ChatGPT:
Adapting to a New Legal Landscape By JODI L. WILSON
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hatGPT debuted in late November 2022, when its creator, OpenAI, made it available for free 2 to the public. Since then, ChatGPT has been the subject of great debate, fear, and excitement in legal academia and legal practice alike. In the academic realm, one question has become fairly common: What are law schools and law professors doing about and with ChatGPT? The answer to that question, like just about every other question in law school, is … “It depends.” ChatGPT ignited broad discussion among academics in December 2022, when Professor Darren Hudson Hick made a Facebook post detailing his exploration of ChatGPT’s ability to help students cheat, warning that ChatGPT will get better and harder to detect as it becomes 3 more sophisticated. The New York Post picked up the 4 story, fanning the flames. And if any law professors were still blissfully unaware, a post on The Volokh Conspiracy, a blog written by “mostly law professors” and read by many law professors, made it clear that law schools would not be immune from the impact of ChatGPT as “This 5 technology should strike fear in all academics.” Given these dire pronouncements and their focus on cheating, it is no surprise that many of the initial discussions among law faculty about ChatGPT focused on academic integrity and included questions such as: •
Are our institutional policies sufficient to address unauthorized use of generative AI?
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What changes, if any, do I need to make to my current assessment methods given ChatGPT’s capabilities?
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Is it possible to detect ChatGPT-drafted responses?
Law faculty also asked existential questions such as: What does it mean if ChatGPT can produce work 6 product that is sufficient to pass my course? What if it 7 can pass the bar exam?! Even as law schools and law professors are addressing these academic concerns, legal practitioners have been
grappling with the impact of ChatGPT on the practice of law. Indeed, within three weeks of its debut, ChatGPT was the subject of articles that ranged from those suggesting potential uses for ChatGPT by attorneys 8 and law firms to those portending the obsolescence of 9 lawyers at the hands of ChatGPT. Of course, the impact of ChatGPT on law practice raises challenges for law schools as well. How do we prepare students for a law practice that may be very different within just a few years as ChatGPT and its ilk become more sophisticated and law-specific and as practitioners determine how best to incorporate these AI tools into a modern practice? So, with this changing legal landscape in mind, what are law schools and law professors doing about and with ChatGPT? Well, it depends. The ingenuity of law professors is boundless, and the approach of law schools will inevitably differ depending on their goals and judgments regarding how best to respond to these significant technological developments. Each law school will have to develop institutional and course-specific policies regarding the use of generative AI. Some schools will develop new courses and even new programs with an AI focus, as the area is rich for both skills development and doctrinal exploration. Some professors will develop assignments exposing students to the risks and benefits of generative AI and its potential uses in the practice of law. Some schools may seek to 17
train their students on the specifics of ChatGPT or other generative AI – as we do with Westlaw and Lexis, both versions of AI – teaching them, for example, how to craft prompts that generate better responses or how to use generative AI to improve their own work product. Given the range of possibilities and the constantly evolving technology and legal landscape surrounding that technology, the specific experience law students will have upon graduation will vary by school, by course selection, and any number of other factors. But most schools will craft an approach designed to teach overarching principles that will allow students to function ethically in a world where ChatGPT and other AI can be effective tools in support of efficient legal services when harnessed by a skilled and knowledgeable lawyer. Among other things, law schools will seek to ensure that law students understand they cannot harness the power of tools like ChatGPT if they do not have sufficient knowledge and skill to check the accuracy and effectiveness of ChatGPT’s work product. While ChatGPT can generate text for a range of topics, it does not really understand the topics, and its text is limited by the data upon which it has been “trained.” As ChatGPT itself explains, “its responses are generated based on statistical patterns and associations in the data it has been trained on, and it does not possess true understanding, 10 reasoning, or independent thought.” That means that a response may be inaccurate, nonsensical, or even 11 irrelevant. Thus, the person who inquires of ChatGPT must critically assess ChatGPT’s output. To do that, students must have the knowledge and skills necessary to make that assessment (e.g., skill at reading and synthesizing cases). And, of course, students cannot develop that knowledge and skill without first doing the work for themselves, rather than outsourcing it to ChatGPT (or taking other shortcuts). Similarly, law schools will seek to ensure that law students understand the potential ethical risks associated with ChatGPT or, more generally, with any unfamiliar technology. Notably, lawyers have been using AI in some form or another for decades – from Microsoft Word’s Grammar and Spell Check to research platforms like Lexis, Westlaw, Bloomberg, Casetext, and more. Although most lawyers probably do not have an intimate, technical understanding of these tools, they do have a general understanding of how the tools function, what they do with the input, and where they get the 18
information that makes up their output. Lawyers also know that these tools have a certain “trusted” status within the legal profession, which provides lawyers with some confidence in relying on them. ChatGPT and its ilk, however, came onto the scene as untested and unfamiliar – yet free! And we’ve seen the consequences. Recently, a lawyer who did not realize that ChatGPT literally makes up sources found himself in trouble after relying on ChatGPT’s free “research,” which 12 included fictitious cases, complete with fictitious citations. Responding to a show cause order, this seasoned lawyer explained that he “heard about this new site, which [he] 13 falsely assumed was, like, a super search engine.” Thus, ChatGPT provides an excellent opportunity to introduce students to the ethical pitfalls of using technology without sufficient technological competence. For example, in a recent classroom exercise, my students identified a range of additional ethical issues implicated by this scenario. Students noted that the attorney’s use of ChatGPT’s “research” without reading the cases himself raised general competence and diligence concerns. Students also wondered whether the attorney breached his confidentiality duty by providing ChatGPT with sufficient information to generate the text used in the brief, especially without an understanding of what ChatGPT does with that information. Of course, students recognized that citing to fictitious cases based on ChatGPT’s “research” raised concerns of candor and honesty, though mitigated by lack of intent. They also noted that using ChatGPT’s work product without attribution implicated plagiarism and candor concerns. That point led to the realization that ChatGPT’s work product is necessarily drawn from the work product upon which it is trained, and yet it does not give proper attribution, which further implicates plagiarism and 14 candor concerns. We wrapped up our discussion by recognizing that technological developments are inevitable and that they can be effective tools in an attorney’s ethical representation of the client. But we must understand those tools well enough – i.e., have the technological competence – to use them responsibly and ethically. It is undeniable that ChatGPT has changed and will continue to change the legal landscape. Already, legal service providers are partnering with generative AI 15 platforms to create law-specific generative AI services. The technology has advanced exponentially since it burst onto the scene less than a year ago. Exactly what
that technology will look like when today’s law students graduate is impossible to say. Still, as law schools, we will prepare the students for the possibilities, equipping them today with the skills, the knowledge, and the professionalism to be responsible and ethical users of tomorrow’s technology in service of their clients.
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ChatGPT is a generative artificial intelligence platform that provides human-like responses to natural-language user inquiries. For example, I asked the free version of ChatGPT to describe itself in two sentences and to include where its information comes from. In response, I learned that “ChatGPT is an AI language model created by OpenAI, designed for text-based conversations, capable of generating human-like responses based on the vast corpus of text data it was trained on, sourced from books, articles, websites, and other internet content up until its last training data update in September 2021. It doesn't have real-time access to information and its knowledge is fixed to what was available up to that date.” OpenAI, What Is ChatGPT?, ChatGPT (Sept. 4, 2023) (response generated by GPT3.5, the AI technology model underlying the free version of ChatGPT at the time of this writing). ChatGPT has made the biggest splash, but it is not the only generative AI platform available. Siddharth K, ChatGPT – What Is Open AI’s Chatbot and What Is It Used For?, REUTERS (Dec. 5, 2022), https://www.reuters.com/technology/ chatgpt-what-is-openais-chatbot-what-is-it-used-2022-12-05/.
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Darren Hudson Hick, FACEBOOK (Dec. 15, 2022), https://www. facebook.com/title17/posts/pfbid02GsrY7brtZD8p5VCyzDeHuwSjYU qSYdbdsgPZZ5PTVEU97zuougnALVffSfXdR7A2l.
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Alex Mitchell, Professor Catches Student Cheating with ChatGPT, NY POST (Dec. 26, 2022), https://nypost.com/2022/12/26/studentsusing-chatgpt-to-cheat-professor-warns/.
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Josh Blackman, Plagiarism and ChatGPT, VOLOKH CONSPIRACY (Dec. 28, 2022), https://reason.com/volokh/2022/12/28/plagiarismand-chatgpt/#.
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Six law professors gave their final exam to GPT-4, a more advanced model than the one underlying the free version of ChatGPT. They graded its responses and concluded that it performed below average … but it passed. Andrew Blair-Stanek et al., GPT-4’s Law School Grades: Con Law C, Crim C-, Law & Econ C, Partnership Tax B, Property B-, Tax B (May 9, 2023), https://ssrn.com/abstract=4443471. A recent study concluded that GPT-4 could pass the Uniform Bar Exam with a score of score of approximately 297—well above the pass score for all jurisdictions—based on its performance on a simulated UBE created using previously released questions. Daniel Martin Katz et al., GPT-4 Passes the Bar Exam (Mar. 15, 2023), https://ssrn.com/ abstract=4389233. Casey Meraz, ChatGPT for Law Firms: The Hype & Potential Uses, JURISDIGITAL (Dec. 14, 2022), https://jurisdigital.com/chatgpt-forlaw-firms-the-hype-uses/.
Jodi L. Wilson is the Associate Dean for Academic Affairs and an Associate Professor of Law at The University of Memphis Cecil C. Humphreys School of Law, where her teaching and scholarly interests include legal ethics, pedagogy, legal research, and arbitration. Before joining the Memphis Law Faculty in 2009, she was a litigator with a national practice focusing on class actions, business disputes, and securities industry arbitrations. Dean Wilso enjoys combining her practice experience with her academic interests in service of the broader legal community and was honored to be named a Memphis Bar Foundation 2023 Fellow. 9
Jenna Green, Will ChatGPT Make Lawyers Obsolete? (Hint: Be Afraid), REUTERS (Dec. 9, 2022), https://www.reuters.com/legal/transactional/ will-chatgpt-make-lawyers-obsolete-hint-be-afraid-2022-12-09/.
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OpenAI, Can ChatGPT Think?, ChatGPT (Sept. 13, 2023).
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Indeed, Prof. Hick made his now viral Facebook post because he recognized that the essay “confidently and thoroughly [responded to the prompt] in a way that [was] thoroughly wrong” and “made no sense” despite being “syntactic[ally] coherent.” Supra n. 3. Of course, ChatGPT is already improving and will steadily become more sophisticated. In fact, the public can now pay to use ChatGPT Plus, which provides access to GPT-4, the model that is reported to have passed law school exams and attained a passing UBE score. See supra nn. 6-7.
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John Russell, Sanctions Ordered for Lawyers Who Relied on ChatGPT Artificial Intelligence to Prepare Court Brief, COURTHOUSE NEWS SERVICE (June 23, 2023), https://www.courthousenews. com/sanctions-ordered-for-lawyers-who-relied-on-chatgpt-artificialintelligence-to-prepare-court-brief/.
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Mata v. Avianca, Inc. No. 22-CV-1461 (PKC), 2023 WL 4114965, at *8 (S.D.N.Y. June 22, 2023).
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Of course, there are ways to use ChatGPT that do not implicate these concerns. For example, I gave ChatGPT a draft of this essay, asked it to provide me with five title options focused on the law school or law student angle, and chose the one you see. OpenAI, ChatGPT’s Impact on Law Schools, ChatGPT (Sept. 4, 2023).
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For example, Casetext now offers CoCounsel, an AI legal assistant powered by GPT-4. CoCounsel, https://casetext.com/cocounsel/ (last visited Sept. 13, 2023).
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Jennifer and Joel Hobson 901.761.1622 HobsonRealtors.com
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BUILDING A BETTER COMMUNITY THROUGH ACCESS TO JUSTICE: How Lawyers Support For MALS Makes A Difference In Our Community by SCOTT CROSBY, Campaign for Equal Justice Chair
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t the root of our work, we, as lawyers, provide representation and support to those who hire us and pay us. Within our community, however, many of our neighbors and fellow Memphians who need such representation and support cannot afford even the cost of an initial consultation. Reflecting this current reality, Memphis is often identified as the second-poorest large metropolitan area in the country. Whatever our ranking, we all know too many in our city live everyday with the stress and pressures of never having enough of the basics -- food, housing, education, opportunity, safety, peace. Life in this state of ever-present struggle gives rise to a wide array of civil legal challenges: usurious loans, unlawful evictions, domestic violence, child and elder abuse, and debt issues. This current state of our City, one struggling with great poverty, has been present for generations and was the case when lawyers joined forces over fifty five (55) years ago to create what would become Memphis Area Legal Services, Inc. (MALS). Its mission then and now remains to serve those who would otherwise be unable to access civil legal assistance. Through tirelessly fulfilling this mission, MALS’ impact extends well beyond the courtroom, contributing to the development of a more robust community. Examples of this community development encompass the entire spectrum of our community, from the youngest to the oldest members, and include initiatives such as: •
Through a collaboration among MALS, Le Bonheur Hospital, and The University of Memphis, Cecil C. Humphreys School of Law, representing children and their families identified by a health professional as having a legal issue that, when resolved, would positively impact the child's health such as representing a family with a child whose asthma is exacerbated due to living
in substandard housing with missing windows and mold growth on the walls. •
Partnering with the law school in its innovative experiential learning expungement program, which results in the removal of charges, when appropriate, for individuals with old, nonviolent convictions, enhancing their employability.
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Playing a pivotal role in a monthly legal clinic for veterans in partnership with the Veterans Administration, assisting Memphis veterans with a variety of legal needs including elderly veterans seeking reinstatement of their long-suspended driver's licenses, often due to unpaid traffic fines, to enable them to attend medical appointments.
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Operating regular general civil clinics at the state civil courthouse and at the Hospitality Hub.
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Collaborating with the Family Safety Center and the Aging Commission to represent victims of domestic violence.
Through these programs and others, MALS continues to use the law as a tool to pave the way to employment, stable housing, education, and freedom from domestic violence, all of which provides a crucial link towards the revitalization of our communities. MALS stands ready to provide the necessary legal assistance to facilitate these paths, but this work continues to need volunteers and funds. Nationally, in the legal aid sector, serving 33% of those seeking assistance is considered commendable. Over the past four (4) years, however, MALS has consistently increased the percentage of applicants served and currently assists approximately 50% of applicants. But, we cannot stop at this level of service, as even this success still leaves 50% of our applicants, most of whom are at or below the poverty level, without any legal assistance. Indeed, despite our efforts to do more with limited resources—such as less 21
office space, fewer support staff, and lower salaries—the demand for legal services continues to rise annually. The yearly MALS' Campaign for Equal Justice strives to bridge the funding gaps left by grants; not only sustaining our current workload of providing free civil legal services to our community's most vulnerable, but also equipping MALS to respond to the increasing demands of our community. By supporting MALS, you, the legal professionals of Memphis can help ensure that the underserved in our community have the legal representation they need to address all housing issues, domestic abuse, consumer fraud, and other legal challenges that can be barriers to upward mobility.
Scott Crosby attended college and law school at The University of Virginia. He has practiced law at Burch, Porter & Johnson since 1995 after spending the early part of his career with the Department of Justice. He is presently serving as the Chair of the 2023 Campaign for Equal Justice with Memphis Area Legal Services. To support the Campaign, please visit: https://malsi. org/campaign-for-equal-justice/.
MBA Annual Meeting December 7, 2023 One Little Font
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THE COMMUNITY LEGAL CENTER CELEBRATES PRO BONO! By DIANA M. COMES, ESQ.
Think back to the thing that motivated you to apply to law school – or the subject you wrote about in your admission essay. For many of us, our motivation was to help people through difficult times and to be part of solutions in our communities. It’s easy to get lost in the daily grind once we get into practice, but providing pro bono legal services to individuals who struggle to afford legal help can be a gratifying way to give back and reconnect with our motivations for becoming attorneys. One way attorneys can give back is by assisting the Community Legal Center (CLC) with its daily work. The CLC is one of Memphis’ best-kept secrets. We’ve been providing high-quality legal care for Memphis’s working population for almost 30 years. The CLC was originally formed to provide free mediation services to people of limited means, but quickly pivoted to providing legal representation, as well as mediation, for the “working poor,” the same population whose medical needs were being provided for by Church Health. In the beginning, that legal representation was on a pro bono basis. Private attorneys took cases for individuals who made too much money to qualify for legal help from Memphis Area Legal Services, but not enough to be able to afford a private lawyer on their own. Slowly, the CLC added staff attorneys concentrating on family, probate, consumer, and immigration law, who took on more cases in-house. Today, we employ six attorneys, two immigration representatives accredited by the Department of Justice, and two paralegals, as well as an administrative coordinator and a three-director managerial team.
Although most of our work is done in-house these days, we still rely on experienced pro bono help in the following areas: family law (such as uncontested divorces and adoptions); probate (wills and conservatorships, including serving as guardians ad litem); and immigration (especially in guardianships of immigrant children seeking safety in the United States). We work with pro bono attorneys in private practice and those who work in-house with companies to provide legal services for those individuals whose cases we do not have the capacity to take on at the moment or who do not meet our income guidelines. In addition to individual case work, we partner with pro bono attorneys to staff community clinics focused on estate planning. We have also partnered with the Association for Corporate Counsel to mobilize in-house attorneys to provide on-the-spot legal advice to disaster victims. Rule 6.1 of the Tennessee Rules of Professional Conduct encourages attorneys to aspire to render at least 50 hours of pro bono service per year. But far more than a professional aspiration, pro bono work is meaningful work that allows a private or corporate attorney to make a transformational change in someone’s life during uncertain and often stressful times. If you are interested in partnering with the CLC on pro bono work, you can reach out to our Pro Bono Coordinator, Tina Perrusquia. If you cannot take on pro bono cases or attend clinics, you can support our direct work with your donations, which is also encouraged in Rule 6.1 of the T.R.P.C. (“In addition to providing pro bono public legal services, a lawyer should voluntarily 23
contribute financial support to organizations that provide legal services to persons of limited means.”). Individual donations to support this important work can be made here. Your firm or company can also sponsor our work as a Partner in Justice, a select group of organizations that have made a meaningful contribution to and impact on our work. We are so grateful for our current Partners in Justice—Baker Donelson, Bearman, Caldwell & Berkowitz, PC, Butler Snow, LLP, Butler, Sevier, Hinsley & Reid PLLC, Burch Porter & Johnson, PLLC, and Rogers, Brackin & Davis, PLLC, as well as for the support of the legal department of International Paper. You can learn more about becoming a Partner in Justice here. Whichever way you choose to support access to justice, know that the impact of your work ripples out farther than you can see. Whether you can make a donation, help senior citizens draft estate plans, or serve as a guardian ad litem, your efforts ensure that the most vulnerable in our community have equal access to justice and a fair shot at moving forward with their lives.
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Diana M. Comes serves as the Executive Director of the Community Legal Center. She received her Bachelor of Arts in English Literature from Rhodes College in 2008 and her Juris Doctor from the University of Memphis Cecil C. Humphreys School of Law in 2011. Following graduation from law school, Ms. Comes served as a judicial law clerk for the Hon. Jon P. McCalla, Chief Judge, U.S. District Court for the Western District of Tennessee, and the Hon. Ronald L. Gilman, Senior Judge, U.S. Court of Appeals for the Sixth Circuit. She then joined the Memphis office of Butler Snow LLP, where she was an associate and then partner practicing primarily in the areas of commercial and appellate litigation, before joining the Community Legal Center in 2021.
WELLNESS CORNER Creating Conscious Culture: A Framework for Workplace Well-Being By CINDY PENSONEAU
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eter Drucker famously said "Culture eats strategy for breakfast." Another thought leader recently said "People do not just quit companies or leaders … 1 they quit organizational cultures." I had my first taste of high-vibe work culture early in my legal career working with Wanda B. Shea. Working with Wanda was full of fun and inspiration. We would regularly start the day with compliments on one another’s fabulousness and process the daily quote from our Dr. Wayne W. Dyer’s “Power of Intention” 365-day flip calendar. Some examples of our morning messaging from Dr. Dyer included: “With everything that has happened to you, you can either feel sorry for yourself or treat what has happened as a gift. Everything is either an opportunity to grow or an obstacle to keep you from growing. You get to choose.” “You cannot be lonely if you like the person you're alone with.” “The more you see yourself as what you'd like to become, and act as if what you want is already there, the more you'll activate those dormant forces that will collaborate to transform your dream into your reality.” Using the “Power of Intention” inspiration for envisioning our personal and professional lives created a powerful dynamic in our working relationship. Being in Wanda’s presence was to be full of light and energy, inspired to focus and serve our clients with high quality effort. What was so notable when I started in the office was a super positive culture where gossip and petty talk were not tolerated. To say it was “not tolerated” is rather misleading because it was not a punitive environment in any way but an empowering environment, without
micromanagement, and with plenty of room for autonomy and self-direction and no time or space for wasteful thinking or speaking. In my years at the office, I was supported in managing a heavy caseload while I was also encouraged in my passion projects with yoga, Pilates, meditation, and deepening self-awareness. That support empowered me to create excellent working relationships with clients, develop relationships with people in varied walks of life, and then to make bold moves for myself. From Wanda, my primary supervisor, I enjoyed agency and the affirmation I needed to become more independent and pursue my dreams. Agency, according to Dr. Martin Seligman (affectionately known as the Father of Positive Psychology and the current director of the Positive Psychology Center at the University of Pennsylvania) is “one’s belief that he or she can change the world for the better.” Agency has 3 components according to Dr. Seligman: •
Efficacy – the belief that one is capable of making a difference
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Optimism – the belief that the efficacy held now will hold in the future
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Prospection & Imagination – the range of scenarios that one’s agency holds over
People who demonstrate high efficacy and optimism tend to live eight (8) to nine (9) years longer. When individuals cultivate efficacy and optimism they are persistent, resilient and try harder. When cultures hold the belief that they can make a positive difference in the world, that’s when progress, creativity and innovation 2 occur. Why does this matter now? The practice of law is changing as younger lawyers take the lead in firms and communities, and their needs for agency, meaning, and 25
purpose are higher priorities than prior generations. Local and international lawyer surveys support these sentiments. Younger lawyers and professionals seek a way of working that supports a dynamic life. “Worklife balance” was in the vernacular of prior generations. That stale phraseology no longer encompasses the drive in the modern lawyer to thrive. This current and emerging consciousness around THRIVING includes meaningful work and good relationships, both with Self and with others. Good pay matters, but it is available in workplaces with positive culture and in those with average or negative culture. Cultures with high efficacy and optimism nurture the human drive for progress and self-actualization. Time and energy are commodities, as is income. When lawyers and all professionals are supported by leaders including managing partners, team leaders, and mentors with empowering beliefs that their work is making a difference, their energy and skills are needed on a team, and they are seen in a most positive regard, they tend to meet higher standards and accomplishments. This applies in a law firm, in a family, and in any community. When people are encouraged with positive beliefs around their meaning and purpose, they perform at higher levels and stay engaged longer. These clues into the mental health of our workforce offer insight for employers looking to retain and develop their workforce. This yields profitability and sustainability.
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The good mental health skills I learned and developed in working with Wanda Shea are now on the forefront of research and informing the future workforce. Agency and the belief that one’s work is impacting the world for the better keeps lawyers and all humans engaged, satisfied, and working to meet high standards of innovation and quality service. Focus on building the quality of relationships, based on optimistic explanatory style, mutual support, positive feedback, and a high-vibe culture drives strategy, sustainability, and work product quality to all new levels. 1
Why Does Culture 'Eat Strategy For Breakfast’?, Jacob M. Engel, Forbes, November 20, 2018.
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Psychological History and Predicting the Future, Martin Seligman, Sage Journals, November 16, 2022
You can find Cindy at The Pensoneau Firm, PC or working on well-being and professional development with her business partner, retired Judge Steve Hornsby in their venture Summa Vita: Your Highest Life, adventuring with her romantic partner, Mike or engaged in home life with her son Sam and Buddy dog.
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Bankruptcy Section CLE with Judge Hagan
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Judge Gina C. Higgins was recently presented with an award for her mentorship and leadership in the MBA Summer Law Intern Program (SLIP), which she co-founded in 2007 as a legal internship program for minority high school students. Alongside attorneys and former law students, she developed the program in response to the lack of diverse lawyers in Memphis and Shelby County. Under her guidance, SLIP has provided internships to over 900 students in a variety of law firms, legal departments, and courthouse settings, in both civil and criminal divisions. Several of the students who graduated from the program attended law school and now work in Memphis law firms and other firms across the country.
The Tennessee Court of Criminal Appeals unanimously elected Judge Camille R. McMullen as its Presiding Judge. She succeeds Judge Curwood Witt of Knoxville. Judge McMullen was appointed to the Tennessee Court of Criminal Appeals by former Governor Phil Bredesen in 2008. Presiding Judge McMullen is the first woman and the first African-American to lead the 12-member appellate court. The Tennessee Court of Criminal Appeals reviews appeals as of right from the entry of judgment of conviction from trial courts across the state of Tennessee. The Presiding Judge is elected by the members of the court and is tasked with managing the court’s docket, case assignments, meetings, committees, and overall leadership.
Chief Justice Holly Kirby was unanimously elected to a two-year term as Chief Justice of the Tennessee Supreme Court that began on September 1, 2023. As is customary, she took the oath as Chief Justice privately on September 1, 2023 in advance of her ceremonial swearing-in held on October 4, 2023. Chief Justice Kirby is only the fourth woman to serve as the Chief Justice of the Tennessee Supreme Court. She was appointed to the Tennessee Supreme Court in 2014 by former Governor Bill Haslam. Before her appointment to the Tennessee Supreme Court, she served for almost nineteen (19) years on the Tennessee Court of Appeals after becoming the first woman in Tennessee history to serve on the Tennessee Court of Appeals. A reception for Chief Justice Kirby was held in Memphis on October 13, 2023 at the law firm of Burch, Porter & Johnson, where she practiced law before her appointment to the Tennessee Court of Appeals.
J udge Carolyn Wade Blackett was recently selected by her peers to serve as the Chief Judge of Shelby County Criminal Court. Judge Blackett became the first female African American state court judge and first female African American Criminal Court Judge in the history of Tennessee upon her election in August 1994. Judge Valerie L. Smith was recently elected by her colleagues across the state to serve as president of the Tennessee Judicial Conference, which is comprised of all state trial and appellate judges. For the first time in the organization’s history, the president’s gavel was passed from woman-to-woman with her election. Judge Smith is only the fourth female to lead the state judges and she is the first female from West Tennessee to do so.
SUBMIT YOUR NEWS AND UPDATES If you are an MBA member in good standing and you’ve moved, been promoted, hired an associate, taken on a partner, or received an award, we’d like to hear from you. We will not print notices of honors determined by other publications (e.g., Super Lawyers, Best Lawyers). Notices are limited to 100 words; they are printed at no cost to members and are subject to editing. E-mail your notice and hi-resolution photo (300 dpi) to kswan@memphisbar.org. 38