Practice Tips: Getting Schooled on Education Law . . . Page 9 A Community’s Response to the Opioid Crisis: What My Experience Has Taught Me . . . Page 11
A Monthly Publication of the Knoxville Bar Association | February 2019
TENNESSEE COURT OF APPEALS ADOPTS FUNCTIONAL-EQUIVALENT TEST FOR CORPORATE ATTORNEY-CLIENT PRIVILEGE
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DICTA
February 2019
In This Issue
Officers of the Knoxville Bar Association
COVER STORY
February 2019
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Tennessee Court of Appeals Adopts Functional-Equivalent Test for Corporate Attorney-Client Privilege
CRITICAL FOCUS
President Wynne du Mariau Caffey-Knight
President Elect Hanson R. Tipton
Treasurer Cheryl G. Rice
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Immediate Past President Keith H. Burroughs 9
Secretary Jason H. Long
KBA Board of Governors Hon. Suzanne H. Bauknight Jamie Ballinger-Holden Loretta G. Cravens Kathryn St. Clair Ellis Elizabeth B. Ford
Rachel P. Hurt Allison S. Jackson Stephen Ross Johnson Elizabeth K.B. Meadows Mary D. Miller
T. Mitchell Panter Robert E. Pryor Jr. Mikel Towe
The Knoxville Bar Association Staff
Getting Schooled on Education Law
What My Experience Has Taught Me
Telecommuting: Trends, Risks, and Requirements
Snap, Crackle, Pop
Supreme Court Overrules Sixth Circuit to Restore Tennessee Aggravated Burglary as an ACCA Predicate Offense
A Prosecutor’s Ethical Obligation to Disclose Exculpatory Information: Take Two
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Tammy Sharpe CLE & Sections Coordinator
Jonathan Guess Database Administrator
Lacey Dillon Programs Administrator
Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org Tracy Chain LRIS Administrator
Dicta
DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association. All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Marsha Watson (522-6522).
Dicta is the official publication of the Knoxville Bar Association
Publications Committee
February 2019
Attorney Profile
Those Nettlesome Homophones
Jake Ens
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DICTA
Schooled in Ethics
Latin Dance
Heidi A. Barcus Sarah Booher Jennifer Dobbins Elizabeth B. Ford Joseph G. Jarret F. Regina Koho
DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members.
Legal Update
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Managing Editor Marsha Watson KBA Executive Director
Time Out
Knoxville Barristers President Mikel Towe
Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Elizabeth Towe
Management Counsel: Law Practice 101
Volume 47, Issue 2
A Community’s Response to the Opioid Crisis
WISDOM
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Shari Holt LRIS Assistant
Practice Tips
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Marsha S. Watson Executive Director
President’s Message
The Good Life of A Servant Leader
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Outside My Office Window Grammar Grinch
Hello My Name Is Barrister Bites
Hiking Tips and Camp-fire Favorites
Vite et crede
The Day After Groundhog Day
Legal Myth Busters
Tennessee Punitive Damages and the Sixth Circuit
Gadgets
Facebook Portal
Well Read
Enhancing Justice: Reducing Bias
Your Monthly Constitutional
Say What?
Long Winded
A KBA Feel Good Story
Around the Community
A New Tradition of Service, Opportunity, and Leadership – Vols for Veterans
COMMON GROUND
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Golden Gala Section Notices/Event Calendar Barrister Bullets Bar Hopping Bench & Bar in the News Pro Bono Project Last Word
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EVENT CALENDAR & SECTION NOTICES
event calendar
Section Notices
There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 522-6522. Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Section for the upcoming CLE program “Update on Mediation Ethics” on February 4 featuring Beverly Nelms. If you have a program topic or speaker suggestions, please contact the ADR Section Chairs Betsy Meadows (540-8777) or Bob Stivers (386-1630). Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. The next Pro Bono Debt Relief Clinic will be held on February 9, 2019 and volunteer registration is available at www.knoxbar.org. If you have program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to get involved, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Hedrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) and Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Ron Mills (215-2050). Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2017 will automatically be opted-in to the section. On February 28th the Section will sponsor a social hour entitled “Bench on Tap: Judge’s Tips for New Attorneys” from 5:30-7 pm. The event will feature Chancellor John Weaver and Judge Kristi Davis. The event is sponsored by Brown Professional Insurers and is open to section members. Register by clicking February 28 on the event calendar at www.knoxbar.org. For information about the Section, please contact Section Chairs Erica Green (525-5134) or Jimmy Snodgrass (545-4228). Senior Section The KBA Senior Section will meet next on Wednesday, March 13, 2019 at Calhoun’s on the River. The luncheon will be held from 11:30 a.m. to 1:00 p.m. The price includes an entree, side item, salad and beverage. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307). Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963) or Patrick Slaughter (637-6258).
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ADR Section CLE Law Office Tech Committee Meeting Membership Committee Meeting Legislative Committee Meeting Pro Bono Debt Relief Clinic Golden Gala Diversity in the Profession Committee Meeting Professionalism Committee Meeting Veterans Legal Advice Clinic Barristers Monthly Meeting Lunch & Learn Judicial Committee Meeting Board of Governors Meeting Veterans Law CLE Barristers HS Mock Trial Competition Barristers HS Mock Trial Competition Barristers HS Mock Trial Competition New Lawyers Section Event
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ADR Section CLE Law Office Tech Committee Meeting Professionalism Committee Knoxville Bar Foundation Board Meeting Access to Justice Committee Meeting Veterans Legal Advice Clinic Board of Governors Meeting Barristers Meeting Lunch & Learn Judicial Committee Diversity in the Profession Committee Meeting CLE Committee Meeting
Mark Your Calendar Law Practice Today Expo April 11 & 12, 2019 February 2019
PRESIDENT’S MESSAGE By: Wynne Caffey-Knight Elmore, Stone & Caffey, PLLC
THE GOOD LIFE OF A SERVANT LEADER My annual meeting remarks promised that my year as bar president would be underscored with a mindset of servant leadership – a concept that increasingly intrigues me. Only a few hours after those remarks, an obvious servant leader, Judge Suzanne Bauknight wrote me about the genesis of the term, explaining it was coined decades ago in 1970 by Robert K. Greenleaf in his essay The Servant as Leader. You are welcome to read the copy I promptly purchased after receiving Her Honor’s email. Mr. Greenleaf reminds us that “a true natural servant automatically responds to any problem by listening first” and is accepting of other persons with their imperfections. He has a whole series of essays, even a “Center for Servant Leadership,” and no doubt has crafted a very fine living from the concept. The approach is in infancy stages in my life, so my simplistic interpretation is that it means leaders are servants first, putting the needs of others first to help them grow and perform as highly as possible. Who are the leaders? Why all of us, of course. A leader is anyone who does or has the capacity to influence another’s life. And from what I am learning, servant leadership enriches lives.
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This month marks the beginning of the bi-monthly DICTA series A Community’s Response to the Opioid Crisis. Referred to as either the opioid crisis or opioid epidemic, it might aptly be called a pandemic before long. Since talking about this to the membership in December, I have been approached by countless lawyers and others about opioids touching their lives – stories of addicted employees, co-workers, neighbors, clients and family members - playing out in a plethora of ways. As leaders in every one of those roles, we have a responsibility regarding this sweepingly destructive force. District Attorney Charme Allen provides a compelling overview of the problem in the first article – an “Opioid Crisis 101” about some of the challenges locally. She has also identified other stakeholders to inform us in coming months on other aspects and to maybe help us answer the question, “What can or should we do?” When I posed that same question to her, she first said there is hardly a family in Knox County not affected in some degree by the problem, whether they are aware or not. Her response is that the answers to the question are as individual as each unique situation. She stressed the need for collaboration within the community. My take away is that if nothing else, we must educate ourselves. Knowledge is a powerful starting place for any possible solution, or better, for prevention. While Machiavelli is not to be admired as a servant leader considering his at-all-costs approach to claiming and maintaining power, he still cogently observed in his 16th century treatise The Prince: “Thus it happens in matters of state; for knowing afar off (which it is only given a prudent man to do) the evils that are brewing, they are easily cured. But when, for want of such knowledge, they are allowed to grow so that everyone can recognize them, there is no longer any remedy to be found.” Given the magnitude of the problem, these articles may be an inadequate crucible to do fully define the issues or identify remedies. If only the tip of the proverbial iceberg, they are a significant launching point to take us through the major aspects -- through the criminal justice system response, education, ramifications, prevention and, hopefully, recovery and a return to a good life. If we listen to these authors and accept their information, we will be better positioned to serve as needed. General Allen, thank you for your leadership.
nowledge is a powerful starting place for any possible solution, or better, for prevention.”
Like any life fully lived, January offered its ups and downs. We weathered rainy and cold wintery skies to sunshiny, 73 degrees promising the eventual return of Spring, and back again. The Executive Committee’s initial meeting spawned great ideas for a year of exceptional programming and support for KBA members. Thank you, Keith Burroughs, Hanson Tipton, Cheryl Rice, and Jason Long, for listening to me and one another, accepting some of my clearly imperfect ideas, and for weighing in with the collective purpose of serving the membership - for your leadership. During the Bar Leaders Event set for the last day in January, Buck Lewis and Doug Blaze will guide KBA Board members along with committee and section chairs through a thought-provoking presentation on living purposefully. Their message is that by using our time and talents in worthy endeavors we can create a life that we and others can look back on with pride. In the process, we will both lead and serve others. They gave us a roadmap for a good life. Thank you both for your leadership.
Buck’s recent blog advised law students, however, that their lives would not always be a series of green lights. The discourse surrounding the federal government shutdown is an unfortunate example of coming to a screeching halt. Worse, it has become the playground for even more divisive attacks on either side of the aisle by those we consider leaders and by citizens nationwide. But, contrast that with the great display of mercy in the commutation of Cyntoia Brown’s sentence and the uplifting message of hope that brings. We received another message about redemption and the good life. In our day-to-day dealings, we can model the servant leader to lift one another up in a similar manner. The KBA Guidelines for Professional Courtesy and Conduct were recently updated, most notably to include language on acceptance and respecting the messenger. They are certainly worth a read. Thank you to Past President Keith Burroughs, Billy Ringger, the Professionalism Committee and Board of Governors for your leadership in writing and adopting them.
February 2019
On February 9, 2018, please join the Golden Gala celebrating our many colleagues who have practiced 50 years or more and exemplify living the good life. In preparation, I told myself I would live a healthier life, lose 30 pounds and buy a sensational dress for the party. None of that has happened, and I am still going to soak up all the stories, joy and fellowship I can that evening. My thanks to all the lions of the Bar we will honor. This year we will explore many opportunities to grow as servant leaders, hopefully enriching the lives of others and ourselves in the process. If you know a servant leader you would like others to hear about, please let me know. And always, call upon me if you have thoughts about how the KBA can better support you. I will listen. “Wisdom is the reward you get for a lifetime of listening when you’d have preferred to talk.” -- Doug Larson
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KNOXVILLE BAR FOUNDATION ANNOUNCES REQUESTS FOR GRANT PROPOSALS The Knoxville Bar Foundation was established in 1992 to improve the administration of justice, to enhance the public’s understanding of and confidence in the legal system, and to serve the legal profession. The Bar Foundation has awarded grants totaling approximately $420,000 for local law related projects and programs since its inception. Per capita this is a real contribution to programs that promote and enable the essence of what we as lawyers seek – liberty and justice for all. Last year the Board of Directors approved ten grant requests, totaling $25,000. In May, 2019, the Knoxville Bar Foundation will again award grants to deserving applicants. The individual grant awards usually are $5,000 or less and the deadline for submitting grant applications is March 1, 2019. Please note that grant funding may not be used for operating costs and endowments. We are excited about this year’s grant program and encourage interested parties and organizations to apply. Please go to www.knoxbar.org to download an application. Submit all grant applications before 5:00 p.m. on March 1, 2019 to Reggie Keaton, Chairman, Knoxville Bar Foundation, P.O. Box 39, Knoxville, Tennessee 37901 or deliver to 550 W. Main Street, Suite 500, Knoxville, Tennessee 37902.
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February 2019
AT TO R N E Y P R O F I L E By: Elizabeth Towe Bernstein, Stair & McAdams
KNOXVILLE BARRISTERS PRESIDENT MIKEL TOWE Since moving to East Tennessee eight years ago, I have learned how much East Tennesseans love this area. However, I’m not sure that anyone loves it as much as Mikel Towe. A proud Powell High School Panther, class of 2006, Mikel was born and raised here and has never considered living anywhere else. He really doesn’t even like to be away for too long on vacation. In fact, I’d say his office with a view of the Sunsphere is pretty much the dream. Or, at least, as a non-native Knoxvillian, I assume that’s the dream – it is sort of like working in Paris with a view of the Eiffel Tower, right? As far as I know, when it came time for Mikel to decide where to go to college, he didn’t even consider anywhere other than The University of Tennessee. (Well, he may have, but I like to leave some mystery in our marriage, so I have never asked.) It wouldn’t have mattered anyway; there was no question that Mikel would be a Volunteer. Mikel is a third-generation graduate of The University of Tennessee and the son of a UT cheerleader, so the love of all things big and orange just runs in his blood. At the University of Tennessee, Mikel graduated Magna Cum Laude with a History major and a Geography minor, but his proudest accomplishment is his perfect attendance record at UT football home games. He didn’t miss a game through all of college or law school. If you remember anything about Tennessee football from 2007-2013, you will understand the depths of his dedication, or as some would call it, masochism. During college, Mikel was on track to achieve his dream of becoming a high school football coach, but ultimately settled for his second-choice career as an attorney.
It doesn’t sound very intimidating, and I would hate for him to have a reputation as anything other than a formidable bulldog of an opponent (except for at home – happy wife, happy life, and all that). His practice area is general litigation, but for the most part he excels in insurance defense work. You can always count on Mikel to put a client at ease with his unassuming demeanor and East Tennessee accent. At home, he loves to cook on his Big Green Egg grill and has perfected the art of the Rendezvous Cheese and Sausage Plate with a little bit of encouragement from this Memphistransplant. He is becoming quite the chef. True to his roots, however, his self-described cuisine philosophy is “Quantity over Quality”, so it may be a while before he earns his first Michelin Star. He also puts me to shame by rising with the sun three days a week to attend spin class at the YMCA in addition to his cycling and running schedule. While I’m working on “New Year, New-ish Me,” Mikel is miles ahead of me, literally and figuratively.
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t the office he has earned the nickname Sweet Mike, but let’s keep that between us. It doesn’t sound very intimidating, and I would hate for him to have a reputation as anything other than a formidable bulldog of an opponent (except for at home – happy wife, happy life, and all that). ”
Mikel learned the value of hard work even before his illustrious career at the University of Tennessee when he got his first job at the age of fourteen as a buggy boy at Food City. After four decorated years as a star Food City employee (he even earned the coveted two-year pin), he felt it was time to move on, and his love of sports led to a prolific, if not particularly lucrative, career as a youth and high school baseball umpire. I know how much Mikel enjoyed umpiring, because I had to beg him to give it up after he started full time at Lewis King, now Lewis Thomason, and I became increasingly jealous of his weekends at the baseball fields. In fact, Mikel’s umpiring uniform is still hanging in our guest room closet, because, as Mikel says, “What if I need it one day?” I don’t want to tell him that his knees are 31 years old, and I’m afraid his umpiring days are done for good. Mikel is one of those happy few who loves the practice of law and can’t think of anything he would rather be doing. At the office he has earned the nickname Sweet Mike, but let’s keep that between us. February 2019
With years of dedication to the KBA and Barristers under his belt, I know that Mikel will be a committed Barristers President. In addition to serving on the KBA Board of Governors and Functions Committee, he has already proven his value to the Barristers in his role as four-time chair of the Membership Committee, chair of the Athletics Committee, Secretary, and Vice-President. He is excited to hit the ground running this year to continue the Barristers’ success.
MEDIATION
John M. Neal Licensed Since 1978 Approved for General Civil and Family Mediation under Rule 31 of the Tennessee Supreme Court Certified Mediator, Federal Mediation Program PRACTICE EXPERIENCE INCLUDES, BUT IS NOT LIMITED TO:
• Construction
• Insurance Coverage
• Personal Injury
• Property Disputes
• Professional Liability
• Commercial and Contract Litigation
• Domestic • Insurance Defense
• Banking
P.O. Box 51930 • Knoxville, TN 37950 Twelve Oaks • 5401 Kingston Pike • Building 1, Suite 170 • Knoxville, TN 37919
(865) 414-6784 • jneal11254@aol.com
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OUTSIDE MY OFFICE WINDOW By: Robbie Pryor Pryor, Priest & Harber robertpryorjr.blogspot.com
LATIN DANCE This year I will offer advice to my fellow members of the Bar. In 11 installments, I will offer up few things I’ve learned in 50 years of living and 24 years of practicing this maddening profession. Choose to ignore my advice at your peril. If you pay attention, you will likely go on to lead healthier, more prosperous lives. Here we go.
Take a dance class.
The instructor looked over the students, taking in what she had to work with. She walked to the sound system and pushed a button. The music jumped from the speakers, Marc Anthony belting out a cha cha number. The class was made of retired couples, young married couples, single people on dates or alone, and even a teenage boy. All of us stood on the wood floor in a room that hosted Zumba, jazzercise and yoga classes all day, waiting for instruction in the first of what would be four classes of Latin Dance instruction given at my health club. I stood amongst the men and women waiting to be instructed. Generally speaking, the women looked engaged, interested in what was coming. The men looked as though they were reporting to a correctional facility for the first day of a ten-year sentence. I was a bit more confident and engaged than the other men. I was with Nancy Ackermann, and this wasn’t my first rodeo. Ten years earlier, on the verge of my graduation from the University of Tennessee and a proposal to marry Cheryl, she signed us up for a social dance class. I wasn’t happy about it, but guys know - in that instance, you take the dance class. It was a credit course, a fact that would of course lead me to say for many years to come that I was a dance major at UT. Give a Pryor an inch…In that class, I’d learned that I was a natural in ballroom dance - the Fox Trot, Tango, Salsa and the Swing - all of the dances came naturally. I tried to act like I hadn’t magically found my calling but it isn’t easy. Perhaps it was the fact I watched my parents take video-taped Carolina Shag lessons. As a child I was forced to watch the National Shag contest on video. My parents were excellent dancers.
Not even a day later, a dear friend who was Cheryl’s best friend and knew Nancy advised me not only that Nancy had just divorced, but that my name had come up even before I met her. It seems that Nancy, who was dating someone else, wanted to take a social dance class at the health club and her boyfriend wouldn’t go. My name was suggested because I was harmless, the grieving widower, and because…wait for it…I was a “good” dancer. The choice was clear - leave it alone or get in the game. A couple of weeks later, standing in the dance class, one of the instructors had us line up to learn moves. I watched Nancy in the mirror. She was one row behind me. She had a bit of sweat on her brow and bit her lower lip as she attempted to learn the steps. She bought a dress for the occasion, a dress one might buy for a night on the coast of Mexico where the trade winds rattle palms and tequila tastes like water. Her coordination was questionable. Her effort was admirable. The dress would make a grown man weep. It took a few minutes before we were ordered to move to our partner and assume dance position. She put her hand in mine. I put my other hand on her hip, and hers went on my shoulder. Marc Anthony started. I wish I had a dollar for each time I’ve told the story. The 18th of January will be our 17th anniversary. It has been a long time since we took any kind of class, but we are signing up with our in-laws to take a dance class this month. She says I’m a bit generous when I speak of my dancing prowess, but she, for some reason, won’t let me dance with another woman. We’ve danced at weddings and on piers jutting out into the Caribbean Sea. Amid the chaos of a life that includes raising 4 young kids to adults, we have never passed on an opportunity to dance. Perhaps you should keep that in mind.
I was a 32-year-old widower. I’d lost my dance partner. I was the single father of two little kids. I was a mess. My rudder was broken, and I found myself drifting through each day without direction or purpose. I’d joined the health club to give myself some structure. I started going every evening. I bought an mp3 player, the precursor to the iPod, and downloaded some music. I would fade into a world of Steve Earle and self-pity and move from machine to machine. On one of these evenings, with headphones in, I turned to see a woman, a beautiful woman, talking to me. I looked behind me and not seeing anyone else, I removed my headphones and talked to her. She had known Cheryl. Our daughters were in the same preschool class. We knew plenty of people in common. She offered her condolences and we said our goodbyes. I went back to working out, but then, as she walked to the track for a couple of laps, I watched her walk away. There’s a scene in the Jungle Book (the original animated movie) when Mogli is watching the girl by the stream and suddenly finds himself following her. He doesn’t really know why. I was Mogli. Who was this exotic creature? I watched her take off and begin running around the track and the spell was broken when someone else approached. I returned to my workout, sad because she was married, and my meeting her made it clear that if I was ever going to “get back in the game,” it would take a great deal of effort. I wasn’t ready. At least that was what I thought.
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February 2019
PRACTICE TIPS By: Caitlyn L. Elam Lewis Thomason Krieg King & Waldrop
GETTING SCHOOLED ON EDUCATION LAW The state of Tennessee enrolls approximately 998,000 students in 147 public school districts each year. As federal law requires that every child receive a free and appropriate public education (“FAPE”), any lawyer who desires to maintain an education law practice must be prepared to face a diverse range of issues on a daily, if not hourly, basis. For example, lawyers who represent school systems can face issues related to student records, student discipline, contract review, student privacy, teacher discipline/termination, and federal investigations. Those lawyers who represent parents and students face many of the same issues from the other side, including negligence, a failure to provide FAPE, and constitutional rights violations. Any lawyer practicing education law must be prepared to pivot quickly and come up with creative and practical solutions for their clients.
1. Remember Who Your Client Is
Tenn. Code Ann. § 49-2-203 authorizes a board of education to employ legal counsel to advise or represent the board. Thus, whether the board decides to employ the local municipality or county’s attorneys or hire outside counsel, it is the board who is the client. Oftentimes the board will appoint the Director of Schools to work directly with legal counsel to resolve day-to-day issues. The lawyer must always remember, however, that the board of education is his/her client, not the employees of the school system. Typically lawyers representing parents and students will find themselves working with the parent to resolve problems related to the student. Remember, however, to always consider whether one or both of the parents have the right to make educational decisions for the child. Moreover, Tennessee law provides that a student’s educational rights transfer to the student upon the age of majority, unless the child has otherwise been adjudicated incompetent under Tennessee law. It is always important to remember who your client is to ensure that you are providing the best advice for that entity or individual.
2. Remember the Bounds of Confidentiality
While attorneys are required to maintain client confidentiality and protect privileged materials, the Federal Educational Rights and Privacy Act of 1974 (“FERPA”) protects the privacy of educational records and the contents thereof. Parents of eligible students and eligible students who have reached the age of majority have the right to inspect and review the student’s educational records. Attorneys representing school systems must understand what items and records are considered “educational records” under the law and under what circumstances and to whom these records can be disclosed. Attorneys representing parents and students must likewise understand how to request these records and what these records do and do not contain.
3. Remember Which Law Applies
Perhaps one of the most challenging aspects of practicing education law is ensuring that you have consulted every applicable law, procedure, policy, guideline, and rule. The US Department of Education is responsible for establishing policies on the distribution of federal funding, conducting research, prohibiting discrimination, and ensuring equal access to education. While consulting guidance of the US DOE is important, the majority of the day-to-day issues faced by education
February 2019
lawyers are govnerned at the state and local level. The essential items in every education lawyer’s tool kit are: Title 49 of the Tennessee Code; the Tennessee State Board of Education’s Rules, Policies, and Guidance; and your local board of education’s policies and administrative procedures.
4. Remember the Rules of the Tribunal
While many civil litigators are comfortable with the state and federal rules of procedure, education lawyers must be prepared to find themselves in a variety of settings. For example, at the school level, lawyers’ roles during Disciplinary Hearing Authority (“DHA”) hearings and Individual Education Plan (“IEP”) meetings are limited in nature. At the district level, lawyers can find themselves filing and/or responding to complaints with the Office for Civil Rights or the State Department of Education Division of Special Education, hearings with Administrative Law Judges, and/or appeals to various state courts. Regardless, each of these situations comes with different deadlines, procedural rules, expectations, and consequences.
5. Remember What You Don’t Know
While the general practitioner is slowly becoming a thing of the past, it is still important to recognize when you are out of your element and comfort zone. Education law involves the intersection of many complex state and federal laws implicating a student’s fundamental right to a free and appropriate public education. Understanding the intricacies of each law will help the education lawyer find the most effective route to a quick and effective resolution for his/her client, whether school system or parent/student. Data suggests that approximately 13% of all students are eligible for special education services. The Individuals with Disabilities Education Act (“IDEA”) mandates that children ages 3-21 with disabilities be provided FAPE in the public school setting. Section 504 of the Rehabilitation Act of 1973 prohibits discrimination based upon disability. This civil rights statute requires school systems to meet the needs of students with disabilities as adequately as the needs of their non-disabled peers. Each of these laws comes with a complex web of regulatory statutes, state rules, state regulations, and a variety of legal mechanisms by which these rights can be enforced. It is imperative that any education lawyer adequately “school” themselves on these special education laws to determine whether they are equipped to handle these types of disputes, administrative proceedings, and/or federal lawsuits.
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GRAMMAR GRINCH By: Sarah M. Booher Ogle, Elrod & Baril
THOSE NETTLESOME HOMOPHONES It’s only fitting that, throughout my adult life, one of my greatest grammatical pet peeves has always been the improper uses of “ensure” and “insure.” So it only makes sense that I would become a personal injury attorney, where correspondence from attorneys and adjusters alike often use the words interchangeably. Thus, our first installment of Grammar Grinch will focus on those pesky old homophones – words that have a similar pronunciation, but different meanings and spellings. And while we’re at it, a slight digression: homophones are a kind of homonym. Homonyms are the words that sound alike and are spelled alike but have different meanings. To take it a step further, if you ever find yourself really grasping at straws for some happy hour or cocktail party conversation starters, then look no further than the aforementioned homophones and homonyms. Plus homographs. Homographs are words that have the same spelling but different meanings. At any rate, back to the homophones. Let’s start with my personal favorite. To “ensure” means that you are making certain that something shall occur or be the case.1 For example, my dog ensures that I will pet him by simultaneously giving me an adorable/adoring look and a soft little nudge. On the other hand, “insure” means to “secure or protect someone against (a possible contingency)” or to “arrange for compensation in the event of damage to or loss of (property), or injury to or the death of (someone), in exchange for regular advance payments to a company or agency.” That means I pay USAA a certain sum of money every month to make sure all is financially well when the most recent canine addition decides to knock over a candle and destroy the place. I insure Casa Booher to ensure both dogs always have a place where they can be spoiled to their hearts’ content. (Oooh, “content.” Good homograph.) So now that we have my most worrisome homophone out of the way, let’s move on to some others that can cause varying amounts of angst in the legal world. •
Capital v. Capitol: “Capital” means an uppercase letter. It also means money or resources. Problematically, it also refers to the city or town that is the official seat of government in that state. “Capitol,” however, refers to the actual “building occupied by a state legislature.” In other words, Tennessee’s capitol is located in its capital city, Nashville, which begins with a capital N, and whose capital is largely derived from the country music industry (or what we’re calling country music these days).
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Principle v. Principal: When we’re talking about “principle,” we’re generally talking about either a “fundamental truth or proposition that serves as the foundation for a system of belief ” or a “general scientific theorem or law that has numerous special applications across a large field.” On the other hand, “principal” is the “first in order of importance” or it “denotes an original sum of money invested or lent.” While he served as our principal governmental leader, Abraham Lincoln made great speeches about a guiding principle that all men are created equal.
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Complement v. Compliment: “Complement” usually means a “thing that completes or brings to perfection.” For you Big Lebowski
fans out there, the rug that “really tie[d] the room together” actually complemented the room. To “compliment” is to “politely congratulate or express praise for something.” If all goes well this week, I will compliment the puppy when she returns home from boarding school for all her studious adherence to “LEAVE IT!” and “OFF!” •
Emigrate v. Immigrate: To “emigrate” is to “leave one’s place of residence or country to live elsewhere.” To “immigrate” is to come into another country to live permanently. Even as a second generation American, this one puzzled me for longer than I would care to admit. However, once you realize the word choice hinges on the sentence’s point of view, you know which one to use.2 “Emigrate” is best if you’re looking at the point of departure. But if the destination is the more important focus, use “immigrate.” My grandfather immigrated to the States. He emigrated from Scotland. Aptly, his name was Scottie.
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Sight v. Site v. Cite: “Sight” is what we see with our eyes. “Site” is a website or “an area of ground on which a town, building, or monument is constructed.” As I drove away, I lost sight of the law school site in my rearview. For most of this publication’s readership, “cite” is what we do when we’re “quot[ing] a passage, book, or author as evidence or justification of an argument or statement, especially in a scholarly work.” DICTA editors want me to cite in conformation to the Uniform System of Citation. Much to my mother’s chagrin, I rarely conform to anything.
Finally, I have a bonus for you. It’s not a homophone, but it’s often a doozie nonetheless and worthy of brief examination: “historic” v. “historical.” If something is “historic,” it is famous, important, or influential.3 So the Tennessee Theatre is indeed historic, as it claims to be in its advertising, because it is important to downtown Knoxville and our history as a community. Likewise, a landmark Supreme Court decision is historic because “it indicates a decision of great importance and significance.” Likewise, “historical” means it is related to history or a study of things from the past. If it happened in the past, it is historical, regardless of its influence or how little we care about its occurrence/ existence.4 So while the purple Trapper Keeper I got for Valentine’s Day on my seventh birthday might have been a truly epic historical glimpse of 1980s pop culture, it likely hardly qualified as a historic artifact. Dear readers, I hope this little verbal meandering has helped clarify homophones that we may often run across in our daily practice. If not, as I stated previously, don’t hesitate to bust out this information at your next happy hour or cocktail gathering. You’ll be the life of the party. I promise. 1 To keep citations brief, as requested, please note that homophone definitions came from www.vocabulary.com, www.merriam-webster.com, or en.oxforddictionaries. com. 2 https://www.vocabulary.com/articles/chooseyourwords/emigrate-immigrate- migrate/. 3 www.writingexplained.org/historic-vs-historical-difference. 4 Id.
DICTA
February 2019
A COMMUNITY’S RESPONSE TO THE OPIOID CRISIS By: Charme P. Allen Knox County District Attorney General
WHAT MY EXPERIENCE HAS TAUGHT ME In 2016, not too long after taking office as Knox County’s District Attorney General, I met with the sheriff of Barnstable County, Massachusetts along with other community partners to learn about substance abuse treatment programs he uses to reduce recidivism rates and reduce criminal activity perpetuated by individuals in the criminal justice system who have substance use disorders. During this meeting, I received a crash course in the science of addiction. We discussed everything from the brain’s plasticity to how certain medications are used to block endorphins from reaching brain receptors. When I graduated from law school, I never dreamed that I would be discussing the inner workings of the human brain in order to help stop a growing crisis in our community. I knew when I took office that the opioid crisis would be a top priority, but I did not anticipate that it would define my administration. My experience so far has taught me that using my position as a public servant and my professional expertise are vital in advancing meaningful change. However, I have also learned how critical it is to involve other experts to curb the devastating effects of drug abuse. Every person and every profession has a role in addressing what is described as the largest human-caused public health emergency in history.1 While substance abuse is not new to our community, the scope of the opioid epidemic is unlike anything we’ve ever seen. A report from the Police Executive Research Forum states that more Americans died from drug overdoses in 2016 than the number of American lives lost during the Vietnam War, which totaled 58,200. Locally, 224 people2 died in Knox County due to a drug overdose in 2016. In 2017, the number increased by more than 30 percent to be nearly 300 people.3 The preliminary numbers for 2018 seem to indicate that the total number of overdose deaths has plateaued. It is too soon to tell, but I believe this is a result of our community’s commitment to work together to tackle the opioid epidemic through prevention, treatment, and law enforcement strategies. In my office’s effort to be a leader in this fight, I have learned that we will most likely find success when everyone comes to the table with the unique tools in their tool belt. The trip to Massachusetts resulted in one of our first community collaborations to combat the opioid crisis. Launching in 2017, the “Shot at Life” program offers medication assisted treatment, using Vivitrol®. The program gives defendants charged with low-level crimes, motivated solely by their addiction, an opportunity for recovery and return to a productive, crime-free life. Each successful participant signifies a decrease in future victimization of innocent citizens in our community. Also in 2017, I helped spearhead the Drug Related Death Task Force with Appalachia HIDTA, Knox County Regional Forensic Center, Knox County Sheriff ’s Office, Knoxville Police Department, and United States Drug Enforcement Administration to address the rising number of drug-related deaths in Knox County. Through this inter-agency effort, data is shared to reduce the number of drug overdoses and, ultimately,
February 2019
stop traffickers from supplying dangerous drugs in our community. The task force initiated a concerted effort for law enforcement and other community agencies to treat overdose deaths as criminal investigations. By treating the location of a fatal drug overdose as a crime scene, investigators are able to swiftly collect evidence necessary in tracking down dangerous drug traffickers operating in Knox County. In 2017, these investigations led to 11 drug dealers being charged with homicide and more than 100 additional charges against those responsible for the sale and delivery of illegal drugs in our community. The new avenues for data sharing created by the task force are helping to stem the drug epidemic at the street level by shutting down supply sources and hotspots known for drug activity. Through collectively reviewing and investigating drug-related deaths, a significant amount of drug-related crime which otherwise would have fallen through the cracks is detected and successfully prosecuted. While the investigations and prosecutions initiated by the task force are helping to address the supply of drugs in our community, it is also necessary to address the demand for drugs. Intervening through the justice system is a proven, cost-effective method of reducing recidivism rates and increasing recovery rates for individuals with substance use disorders.4 The District Attorney’s Office has analyzed substantial data which reveals staggering connections between individuals who overdose and the criminal justice system, demonstrating the need for prevention and intervention within the system. The system was designed to control and prevent crime; it was not designed to treat addiction. The collaboration of the task force also opened doors for us to raise awareness about the overwhelming number of lives we are losing to drugs. For example, the available data allowed us to create a dashboard on our website that details in real time the number of suspected overdose deaths. This information is shared through local media outlets to keep the crisis in the forefront of everyone’s mind. I will continue to be tough on crime and smart on prevention in order to keep our community safe and free of drug misuse. Every voice is important in this fight. Together through prevention, treatment, intervention, and law enforcement tactics, we can reduce crime and victimization, and reclaim lives not yet lost to the opioid epidemic.
1 Kolodny, A., Courtwright, D. T., Hwang, C. S., Kreiner, P., Eadie, J. L., Clark, T. W., & Alexander, G. C. (2015). The prescription opioid and heroin crisis: A public health approach to an epidemic of addiction. Annual Review of Public Health, 36(1), 559- 574. 2 Ashley Welch, Drug overdoses killed more Americans last year than the Vietnam War, CBS News, October 17, 2018. 3 Knox County Regional Forensic Center, 2017 Drug Related Death Report. 4 Criminal justice continuum for opioid users at risk of overdose. Brinkley-Rubinstein et al., 2018.
DICTA
11
HELLO MY NAME IS . . . By: Jennifer A. Dobbins Lipsey, Morrison, Waller & Lipsey, P.C.
JAKE ENS After serving one year in Afghanistan and traveling around the world, Jake Ens has decided to call Knoxville home. A native of Grand Rapids, Michigan, he had never visited Knoxville until he clerked with the U.S. Attorney’s Office in Knoxville after his 2L year. He followed his passion, criminal prosecution, back to Knoxville after graduating from law school, and he accepted a position as an Assistant District Attorney General for Knox County. Jake’s decision to attend law school was one he made early in life. Both of his parents are lawyers, and at a young age, he decided that he wanted to follow in their footsteps. “Law has always been the coolest thing to me,” he says. “I would spend the day in my dad’s office and imagine that would be me when I grew up.” His father’s influence was not limited to Jake’s choice of profession. “My dad has always been my number one influence, and he still is,” he explains. “He taught me that you don’t have to be the smartest person in the room to be successful, you only have to be the hardest working person.”
during the previous summer. He later accepted a position as an Assistant District Attorney General for Knox County. “I’m in court almost every day. After court, I prepare for the next day’s docket. The people in our office are amazing, and we all share a great comradery. The Knoxville defense bar is great to work with, and I look forward to my job every single day,” he says. When Jake is away from the office, he plays recreational softball and cheers on Michigan State University, the Detroit Lions, and the Detroit Tigers. He enjoyed travel associated with serving in the Marines internationally, and he considers Switzerland, London, and Afghanistan to be the most interesting places he has ever visited. He hopes to travel to more countries in the future. Jake currently serves as the S-4 Officer for the 3rd Battalion, 23rd Marines, Marine Forces Reserve, and he has served the past four years in the Marine Forces Reserve. The Knoxville Bar Association thanks Jake for his service and welcomes this hard-working lawyer to Knoxville.
His father instilled in him the values of diligence and determination, and Jake started his first job in second grade, walking a paper route every day after school, sometimes wading through several feet of snow. In high school, he worked as a busboy, and in college, he took on various jobs, including IT and construction. The oldest of six siblings, Jake played football throughout high school and college, playing wide receiver for four years at the John Carroll University in Cleveland, Ohio. Between his junior and senior year in college, he attended Marine Corps Officer Candidate School (also known as “boot camp”) and took the LSAT, knowing that he wanted to both serve his country and begin law school once he completed active duty service. “I don’t have many family members in the military, but it was something that I knew I wanted to do for a long time. My parents are very proud to have a son who is a Marine.” Jake completed boot camp in 2008 and graduated from college the next year. During his deployment in Operation Enduring Freedom, he served in Lashkar Gah, in the Helmand province of Afghanistan, where Jake, ten other Marines, and twenty British soldiers lived with and trained nearly one thousand Afghan police officers. He served on active duty for five years, one of which was in Afghanistan. In 2014, Jake started law school at Campbell University School of Law. His 1L year started with an unexpected turn: his plan to pattern his career after his father’s was not going as expected. “After my first day of class in contracts, my desire to be a commercial real estate attorney like my dad went out the window,” he says, laughing. In his 2L year, he took a criminal procedure class with professor and former Assistant U.S. Attorney Zach Bolitho, and he realized his future was in criminal law. Following that dream, after his 2L year, he clerked with the U.S. Attorney’s Office for the Eastern District of Tennessee and met Assistant U.S. Attorney David Jennings. Jake says that this experience was a landmark moment for his career, and he realized that he wanted to be a prosecutor. “After working with the AUSA’s office, I realized this is it, civil service as a prosecutor. This is what I want to do with my career,” Jake reflects. After graduating from law school, Jake decided to take the Tennessee bar exam because he had fallen in love with East Tennessee
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DICTA
February 2019
MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Brandon L. Morrow Kramer Rayson LLP
TELECOMMUTING: TRENDS, RISKS, AND REQUIREMENTS Telecommuting. Working from home. Virtual job. Remote work. Don’t these all sound like millennial-inspired phrases which mean the same thing: “playing hooky”? For those who started work in the Baby Boomer generation, work meant being tied to, well, the workplace. So the concept of working remotely may sound like a free pass to Ferris-Bueller-it-up on the company’s dime. But if that’s it, why is telecommuting so popular in the workforce? 4.3 million employees (3.2% of the workforce) now work from home at least half the time.1 Regular work-at-home, among the non-self-employed population, has grown by 140% since 2005, nearly 10x’s faster than the rest of the workforce or the self-employed.2 Surely companies wouldn’t get on board if it negatively affected productivity and the bottom line. The answer is that (thanks to advances in technology) telecommuting programs can be beneficial, both for the employer and the employee. But, like any other workplace program, they need to be implemented (and monitored) properly and administered consistently. Many businesses, even some law firms, in our area have jumped on the telecommuting bandwagon. In addition to a voluntary work-from-home program, telecommuting may also be a form of reasonable accommodation under the Americans with Disabilities Act (ADA). Both the EEOC and the Sixth Circuit have recognized that employers must consider telecommuting as a form of reasonable accommodation. First, if your business or law firm is considering implementing a telecommuting program (or you have a client that is), what do you need to know? Telecommuting Program There are some significant advantages both employers and employees in implementing telecommuting programs. Employers can save on overhead costs by eliminating expensive office space. And employees can save on commuting costs while handling their work duties in their pajamas. For certain industries, telecommuting may even help bridge the gender gap. For example, in the tech industry 56% of women leave their jobs mid-career, and 51% of women say being a working mother made it difficult for them to advance in their careers.3 Working from home can allow working parents to juggle the responsibilities of both work and family responsibilities. Telecommuting is not a one-size-fits all solution. Whether it works for one business or even one employee, will depend on the nature of the business and the employee’s job duties. For manufacturing businesses, I don’t foresee a trend of setting up in-home assembly lines. Likewise, for some jobs, it’s important to have an office staffed for walk-in customers, so working remotely defeats the purpose. If you decide to implement a telecommuting program, I recommend having a written agreement to address issues that may arise. The Fair Labor Standards Act still applies, even if the employee isn’t coming into the office every day. For non-exempt workers, they still have to keep track of their hours worked. For exempt workers, it’s still a good idea to have set hours when they’ll be available by phone and/or email. You’ll also want to ensure that the employee has all the equipment (computers, video conferencing equipment, phone, etc.) necessary to perform their work remotely. You’ll want to ensure that your information security
policies cover employees who use their computers and phone from home. Don’t let a telecommuting program lead you down a path towards a discrimination claim. When considering whether to allow telecommuting, employers must be mindful of a primary employment law concept – treating like situations alike. This means being able to articulate a legitimate, nondiscriminatory reason for a decision to approve or deny telecommuting. If a male employee and a female employee perform the same job and both ask for a telecommuting arrangement, the employer should either grant or deny both requests or be able to provide a legitimate, non-discriminatory reason for the different decisions. Telecommuting as a Reasonable Accommodation Aside from a general telecommuting program, a request to work remotely may come from an employee as a request for an accommodation to deal with a disability. The Sixth Circuit Court of Appeals has issued some helpful guidance in this regard. In Mosby-Meachem v. Memphis Light, Gas & Water Division, the court recently held that telecommuting can be a reasonable accommodation under the ADA when the employee is able to perform the essential functions of the position remotely and the request is for a finite period.4 Whether telecommuting serves a reasonable accommodation always turns on the specific facts of an employee’s situation. Indeed, in both Williams v. AT&T Mobility Services, LLC5 (depression and panic attacks) and EEOC v. Ford Motor Co.6 (irritable bowel syndrome), the Sixth Circuit held that working remotely was not a reasonable accommodation as it would present an undue hardship for the employer. These cases are distinguishable from MosbyMeachem for two reasons. First in Williams and Ford, the employees never previously worked remotely. Second, the requests to work remotely were for unlimited periods. In evaluating telecommuting as a request for reasonable accommodation, I recommend determining: • whether other employees have been provided the opportunity to work remotely as an accommodation; • if the telecommuting is for a finite period of time; and • whether the employee will be able to perform the essential functions of his or her position while telecommuting. Maintaining up-to date job descriptions that accurately reflect the essential functions of each position is crucial to this sort of analysis. Conclusion Telecommuting, in the right situation, can provide added benefits to both employers and employees. It can even, again under the right circumstances, be required to accommodate a disability. While we’re not saying it’s going to overtake traditional work arrangements, it can’t be dismissed as another millennial-devised-scheme to avoid coming into the office. 1 “Telecommuting Trend Data,” Global Workplace Analytics, https:// globalworkplaceanalytics.com/telecommuting-statistics (accessed Jan. 2, 2019). 2 Id. 3 Id. 4 883 F.3d 595 (6th Cir. 2018). 5 Williams v. AT&T Mobility Servs. LLC, 847 F.3d 384 (6th Cir. 2017). 6 E.E.O.C. v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015).
About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Cathy Shuck at 541-8835. February 2019
DICTA
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TIME OUT By: Ann C. Short The Bosch Law Firm
SNAP, CRACKLE, POP At Christmas time in 2017, my officemates pitched in and bought me a much appreciated gift: a Shiatsu neck and back massager with heat and automated programs. Lately, I had been experiencing a lot of neck and shoulder pain. The rotating nodes with heat were perfect. I could even put the contraption on my neck and across my shoulders and place my hands and forearms through leather loops to keep the device in place while I typed. After a few weeks, the massager became less and less effective in relieving the neck and shoulder pain. I tried icy-hot medicated patches. Then thermacare heat wraps. They helped but only for a brief time. I signed up for a membership in one of the local massage/spa salons – the reputable kind with lavender, etc. – and for a time my muscles seemed to relax. But, nothing brought meaningful relief. By the Spring of 2018, I was officially miserable. The muscle tension pain had become constant, except for those brief intervals of deep sleep that I craved more and more. One day, Don walked in the front door of the office. He had been to court earlier. He came upon me lying on the floor in the office hallway with tennis balls underneath my shoulder blades. I was rotating the tennis balls with my shoulder muscles in a futile effort to loosen up the knots in my shoulders. Don stepped over me, remarked that he hoped no clients were in the establishment, and proceeded to his office at the end of the hallway. Now, before anyone jumps to conclusions, Don’s behavior was not a display of callousness. Our relationship is built, inter alia, on mutual sarcasm and random verbal fulmination. Don learned at the foot of the master, my husband Bob Simpson – who to this day is the wittiest, funniest, most spot-on sarcastic person I have ever known. After I managed to assume a vertical posture, I ventured into Don’s office and sat in the nearest chair. Don held up his cell phone, looked at me with genuine concern, and asked if I was ready for him to call and make an appointment with – wait for it – a chiropractor. I’m sure I looked puzzled, but I remember nodding in the affirmative and returning to my office.
The next step of the treatment is my favorite part. My shoulders and lower neck are hooked to an electrical muscle stimulation machine, often known as an E-Stem or TENS unit. I stretch out, face up, on a comfortable table with a warm neck wrap and relax alone for 15 to 20 minutes, while the machine elicits muscle contractions using electric impulses. The electric impulses are used for pain relief and muscle re-education. I have begun using this time as my “meditation” time. I breathe slowly and focus my attention just on the muscle contractions. For me, this has proven to relieve stress and put myself in “time out.” The last step is the “snap-crackle-pop” that the doctor performs,1 after which we discuss healthy habits and how to ergonomically optimize my workspace to reduce muscle tension. The last thing I always hear before I leave is to immediately drink as much water as possible to flush out my system. So, why have I taken you through my chiropractic health care experience? This column has tried to focus on various ways attorneys can decompress. Deal with short-term and long-term stress. Stress causes physical damage. It plays a role in so many modern diseases that some experts estimate it accounts for half the nation’s healthcare-related expenses. Stress initiates a fight-or-flight response that affects nearly every part of the body. Our spine is literally the backbone of our neurological system. Our brain communicates everything with the help of the spine. As you feel stress and begin to tense up, this causes your spine to move. By working with the spine, talented, well trained chiropractors can help their patients cope better with stress. Chiropractic adjustments release muscle tension, soothe irritated spinal nerves and improve blood circulation. These adjustments can prod the brain to switch off the fightor-flight response so the body can return to a more relaxed state. My life has not automatically become stress free because I regularly see my chiropractor. But considerably less muscle tension pain has been very welcome in my life and has reduced my overall stress.
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Thus began my journey into chiropractic health care. And, I’m here to report that I am a convert! I won’t offer a written infomercial to promote any one person or health group, but if you are seriously interested, private message me, and I will tell you who treats me.
I promise no torture device is involved.
Inclement Weather Policies for East Tennessee Courts
Nothing about my treatment has been creepy or “out there.” Yes, at the initial appointment, my targeted body parts (neck and shoulders) were x-rayed to ensure no breaks, arthritis, or stress fractures were evident. At the beginning, I told my treating doctor that I refused to “buy” into three times a week treatment. I received no push back. The recommendation was once a week for a month and then assess future frequency. I was told – sensibly, I thought – that I was in the best position to gauge how my body was responding.
Inclement weather can cause transportation problems or hazardous conditions that can vary widely in our region. Winter storms will have an impact on our day-to-day operations and court appearances. Click on https://www. knoxbar.org/ viewofthecourt/ to download your copy of the Inclement Weather Policies for East Tennessee Courts.
Currently, I schedule appointments once every two to three weeks. My visit begins with about 15 to 20 minutes of deep tissue massage to my neck and shoulders/shoulder blades. No lavender diffusers; no soft music or the distant sound of chimes or chanting. The deep tissue massage is focused on the body parts needing attention. It can be somewhat painful until my rock-hard muscles begin to relax.
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DICTA
February 2019
L E G A L U P DAT E By: Andrew Fels Visiting Assistant Professor of Law, Duncan School of Law
SUPREME COURT OVERRULES SIXTH CIRCUIT TO RESTORE TENNESSEE AGGRAVATED BURGLARY AS AN ACCA PREDICATE OFFENSE Introduction Is a recreational vehicle or mobile home a vehicle or a structure? The Supreme Court first answered this question in the classic criminal procedure case California v. Carney,1 and faced it once again in United States v. Stitt.2 For certain defendants facing the Armed Career Criminal Act’s enumerated clause,3 the Supreme Court’s answer might mean a lifetime behind bars: under the ACCA, a felon convicted of possessing a firearm may be given an enhanced sentence of fifteen years to life if they have three more “violent felony” convictions. Without clarification or definition, the enumerated clause lists burglary as a violent felony. In Taylor v. United States, the Supreme Court defined burglary under the enumerated clause to include criminal convictions under statutes criminalizing the unlawful entry of “a building or structure” but to exclude unlawful entry of “a boat or motor vehicle.” 4 But what about burglary statutes encompassing trailers, RVs, and mobile homes, locations that are both vehicles and structures? In a rare ACCA victory for the government, the unanimous Stitt Court ruled that ACCA burglary includes convictions for Tennessee aggravated burglary5 and other statutes encompassing any “a structure or vehicle that has been adapted or is customarily used for overnight accommodation.”6
Background Under the ACCA’s enumerated clause, only statutory elements matter; the actual facts underlying a conviction are immaterial.7 If a state crime’s elements match those of a generic offense, the conviction qualifies as an ACCA predicate. If the necessary elements expand beyond those of the generic offense, a conviction may not be counted towards an ACCA sentence. Generic burglary statutes criminalize breaking into buildings or structure but not boats, vehicles, airplanes, and other means of transportation.”8 Victor Stitt was a felon convicted of possessing a firearm and was given an enhanced ACCA based on multiple Tennessee convictions for aggravated burglary. That statute prohibits the unlawful entry of “module units, mobile homes, trailers, and tents” and “self-propelled vehicle[s] . . . designed or adapted for the overnight accommodation of persons.”9 Stitt appealed his ACCA eligibility, claiming that the statute was overbroad for including vehicles and other non-generic locations. Stitt lost his appeal:10 Sixth Circuit precedent conclusively categorized all Tennessee aggravated burglary convictions as ACCA predicate offenses.11 Yet a fractured en banc panel reversed, agreeing that the statute includes “exactly the kinds of vehicles and movable enclosures that the Court excludes from generic burglary,”12 dismissing the adaptation requirement on the grounds that United States v. Taylor, the cornerstone of ACCA jurisprudence, “emphasize[d] a place’s form and nature—not its intended use or purpose.” On grant of certiorari, Stitt’s case was consolidated with a similar challenge to an Arkansas statute.13
United States v. Stitt In a unanimous decision authored by Justice Breyer, the Supreme Court reversed, ruling that the ACCA includes “burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.” Grounding its decision in Congress’s intent that ACCA burglary retain the common meaning employed at the time of its February 2019
passage in 1986, the Court noted that a majority of state burglary statutes had then included habitable vehicles.14 The Court also emphasized Congressional concerns that burglary presented a grave risk of violent confrontation between a burglar and an occupant, a risk equally presented by the burglary of a mobile habitation or a structure.15 Finally, after reviewing defendants’ cited precedent barring ACCA sentences for burglary of places “other than structures,”16 the Court “convince[d]” itself “that we did not decide . . . the question before us today,”17 and that the habitation requirement sufficiently narrowed the scope of the contested statutes to match generic burglary.
Decision’s Impact Any ACCA decision invariably spreads equal measures of clarity and confusion.18 Given the Court’s fractured opinion of the statute and its history,19 it is puzzling to watch the unanimous Court disturb the vehicle versus structure locational distinction, one of the few concrete ACCA standards, doubly so given its two recent Sixth Circuit reversals on this same Tennessee statute.20 Wider impact and implications remain unclear, but Stitt’s language will hopefully prove sufficiently well-tailored to affect only those statutes overbroad for inclusion of mobile habitations. Time will tell. What is certain is that Stitt ended the brief opportunity for Tennessee aggravated burglary convicts to escape ACCA sentences.21
471 U.S. 386 (1985). 139 S. Ct. 399 (2018). 3 18 U.S.C. § 924(e)(2)(B)(ii). 4 Taylor v. United States, 495 U.S. 575, 598-99 (1990). 5 Tenn. Code Ann. § 39-14-401(1); see Tenn. Code Ann. § 39-14-403. 6 Stitt, 139 S. Ct. at 403–04. 7 Mathis v. United States, 136 S. Ct. 2243, 2251 (2016) (citing Taylor, 495 U.S., at 602; Richardson v. United States, 526 U.S. 813, 817 (1999)). 8 Taylor, 495 U.S. at 599. 9 Tenn. Code Ann. § 39-14-401(1); see Tenn. Code Ann. § 39-14-403. 10 United States v. Stitt, 637 F. App’x 927 (6th Cir.), reh’g en banc granted, opinion vacated, 646 F. App’x 454 (6th Cir. 2016), and on reh’g en banc, 860 F.3d 854 (6th Cir. 2017), rev’d, 139 S. Ct. 399 (2018). 11 See United States v. Nance, 481 F.3d 882, 887 (6th Cir.2007). 12 United States v. Stitt, 860 F.3d 854, 858 (6th Cir. 2017), cert. granted, 138 S. Ct. 1592 (2018), and rev’d, 139 S. Ct. 399 (2018). 13 United States v. Sims, 854 F.3d 1037 (8th Cir. 2017), cert. granted, 138 S. Ct. 1592 (2018), and vacated and remanded sub nom. United States v. Stitt, 139 S. Ct. 399 (2018). 14 United States v. Stitt, 139 S. Ct. 399, 404 (2018). 15 Id. at 406. 16 Id. at 407 (quoting Taylor, 495 U.S. at 599) (internal quotation marks omitted). 17 Id. at 407. 18 See, e.g., Descamps v. United States, 570 U.S. 254, 267 (2013) (“the Ninth Circuit’s ruling strikes out swinging.”). 19 Compare Mathis v. United States, 136 S. Ct. 2243, 2259 (2016) (Thomas, J., concurring) (arguing that ACCA fact-finding violates Sixth Amendment), with Mathis, 136 S. Ct. at 2267 (2016) (Alito J., dissenting) (analogizing modern ACCA decisions to accidentally driving to Croatia). 20 United States v. Ozier, 796 F.3d 597 (6th Cir. 2015), abrogated by Mathis, 136 S. Ct. 2243; United States v. Castro-Martinez, 624 F. App’x 357 (6th Cir. 2015), cert. granted, judgment vacated, 136 S. Ct. 2541 (2016) (citing Mathis, 136 S. Ct. 2243). 21 UT’s appellate clinic represented one of the lucky few defendants able to take advantage of this narrow window of opportunity. See Reese v. United States, 727 F. App’x 149 (6th Cir. 2018). 1 2
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Tennessee Court of Appeals Adopts Functional-Equivalent Test for Corporate Attorney-Client Privilege The attorney-client privilege is one of the oldest recognized privileges under the common law. Such a privilege allows for and encourages open and honest communication between the attorney and client. The United States Supreme Court has long recognized that:
corporate attorney-client privilege: whether communications between a corporation’s chief legal officer and an employee of a vendor doing business with the corporation are subject to the attorney-client privilege protection.6
The rule which places the seal of secrecy upon communications between client and attorney is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure.1
Beginning in 2008, Krystal contracted with Waste Administrative Services, Inc. (“WASI”) for its waste management services.7 Around 2012, Denali began providing services to Krystal related to certain enumerated sourcing projects.8 At the time, those projects did not explicitly include waste management services.9 However, the parties’ September 12, 2012 Statement of Work provided that “Any Procurement projects not covered in the scope of this agreement may be submitted to Seller via email.”10 On July 18, 2013, the parties executed an amendment that expanded Denali’s work – this amendment still did not include waste management services but expressly provided that “Purchaser and Seller are contractors independent of one another.”11
While it may be fairly straightforward to determine whether a communication between an individual and his attorney is protected by the attorney-client privilege, the question gets much more complicated when the client at issue is a corporation. In the seminal case Upjohn v. United States, the U.S. Supreme Court was called upon to determine whether the attorney-client privilege protected certain communications between a corporation’s non-managerial employees and its legal counsel.2 In that case, the petitioner corporation argued that it should not be required to disclose to the IRS written questionnaires that certain employees answered as part of an internal investigation into allegedly improper payments to foreign governments.Id. The Sixth Circuit applied the “control group” test, which provides that “’only the senior management, guiding and integrating the several operations, . . . can be said to possess an identity analogous to the corporation as a whole,” and found that the communications at issue were not made by such senior-level employees and were thus not subject to the protection of the attorney-client privilege.3 The Supreme Court took issue with the control group test, stating that it “frustrates the very purpose of the privilege by discouraging the communication of relevant information by employees of the client to attorneys seeking to render legal advice to the client corporation.”4 Consequently, the Supreme Court held that the attorney-client privilege protected the communications at issue because -- The communications were made by employees to corporate counsel acting as such, at the direction of corporate superiors, for the purpose of securing legal advice; -- Information not available from upper management was necessary to supply a basis for the legal advice; -- The communications concerned matters within the scope of the employees’ duties; and -- The employees were aware they were being questioned so that the corporation could obtain legal advice5 Late last year, the Tennessee Court of Appeals granted interlocutory appeal in the case of Waste Administrative Services, Inc. v. The Krystal Company, et al., to determine another aspect of
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At this point, Jungling’s email signature bloc was “David Jungling, Program Management, Denali Sourcing Services on behalf of the Krystal Corporation” and he took an increasing role in dealing with WASI.12 On October 31, 2013, Jungling emailed Krystal’s President and CEO and its Vice President for Development & Construction informing that Jungling could get comparison bids for waste management services to “leverage the incumbent (WASI)” and discuss lowering prices.13 Krystal’s President and CEO responded asking Jungling and the Vice President for Development and Construction to “take the lead on this.”14 Jungling was then included on internal-use only email and proceeded to interact with WASI on Krystal’s behalf.15 On November 25, 2013, Jungling exchanged emails with Krystal’s chief legal officer, and on January 23, 2014, Krystal’s President thanked Jungling via email for “staying on top of this process.”16 Jungling notified WASI via email on April 30, 2014 that Krystal would be transitioning to another waste management provider.17 Krystal argued that Jungling “was the functional equivalent” of one of its employees and that both Jungling and Denali should be prevented from disclosing the communications at issue because the same were subject to the attorney-client privilege.18 The Court of Appeals noted that its research “did not yield any on-point, controlling Tennessee law on the subject.”19 Therefore, it turned to other jurisdictions in search of persuasive authority regarding application of the “functional equivalent” test.20 The court began its analysis with Export-Import Bank of the United States v. Asia Pulp & Paper Co.21 There, the United States District Court for the Southern District of New York articulated three factors to use when deciding whether a third party was functionally equivalent to an employee: (1) “whether the consultant had primary responsibility for a key corporate job,” (2) “whether there was a continuous and close working relationship between the consultant and the company’s principals on matters critical to the company’s position in litigation,” and (3) “whether the consultant is likely to possess information possessed by no one else at the company.”22
DICTA
February 2019
COVER STORY By: Courtney
Following its articulation of these “factors” from the Southern District of New York, the Court of Appeals also recognized that other courts have declined to apply the functional equivalent test because its application could “expand the scope of the [attorney-client] privilege by eroding the circumstances in which it can be waived.”23 Ultimately, the Court of Appeals adopted the functional equivalent test, concluding that it “takes into account a corporation’s legitimate interest in relying upon frank exchanges between its legal counsel and non-employee individuals or organizations who behave as the functional equivalent of an employee . . . and is in keeping with Upjohn.”24 Turning to the facts before it, the Court determined that Jungling was acting as the functional equivalent of a Krystal employee in his dealings with WASI and communications with Krystal’s chief legal officer regarding the same.25 The Court acknowledged Denali’s argument that the parties’ pre-June 9, 2014 documents establish only a limited role for Denali but held that the manner in which the parties actually conducted themselves should be considered in applying the functional equivalent test. To that end, the Court noted that the following actions were significant: - - -
Jungling was a main actor in Krystal’s efforts to secure a new waste management vendor, as reflected by multiple emails in the record. On October 31, 2013, Krystal’s President asked Jungling via email to “take the lead” in dealing with WASI.26 Jungling did in fact “take the lead” in working to end Krystal’s business relationship with WASI.27
Upon finding that Jungling was the “functional equivalent” of a Krystal employee, the Court explained that its finding extended to Denali, Jungling’s employer, as well, because “a company acts through its employees.”28 The corporate attorney-client privilege that attaches to the functional equivalent of employee would be meaningless if it did not also attach to that individual’s actual employer.29
February 2019
Houpt Panter
So, what are the main takeaways for corporate counsel and their clients? If WASI is the guidepost for Tennessee courts’ application of the “functional equivalent” test, keep the following things in mind: -- Contractual language regarding the parties’ relationship is not the sole determinative factor. -- Disclaiming an agency relationship in writing alone will not be sufficient. -- The parties’ actions will be key to the courts’ application of the functional equivalent test. -- A “functional equivalent” finding alone does not mean that the communication is definitely protected from disclosure – it simply means that the attorney-client privilege may apply if all other necessary factors are established. Being aware of these factors in your interactions with corporate clients and their contractors or third-party vendors will ideally make identifying potentially privileged communications an easier task should the need arise. 3 4 5 6 7 8 9 1 2
13 10 11 12
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DICTA
Hunt v. Blackburn, 128 U.S. 464, 470 (1888). 449 U.S. 383 (1981). U.S. v. Upjohn Co., 600 F.2d 1223, 1226 (6th Cir. 1979). Upjohn, 449 U.S. at 392. Id. at 396. No. E2017-01094-COA-R9-CV, 2018 WL 4673616 (Tenn. Ct. App. Sept. 27, 2018). Id. at *1. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. at *2. Id. at *3. Id. 232 F.R.D. 103 (S.D.N.Y. 2005). Id. (internal citations omitted). Interestingly, that same court, albeit in a different case, previously held that Upjohn provides no basis for excluding a contractor’s communication with corporate counsel from attorney-client privilege protection. In re Copper Market Antitrust Litigation, 200 F.R.D. 213, 219 (S. D. N. Y. 2001). WASI, 2018 WL 4673616, at *4 (quoting BSP Software, LLC v. Motio, Inc., No. 12- C-2100, 2013 WL 3456870, at *3 (N. D. Ill. July 9, 2013)). Id. at *5. Id. Notably, the Court described this as the “most decisive[]” factor in its analysis of the parties’ action. Id. Id. Id. The Court did not definitively conclude that the attorney-client privilege protected the communications at issue. It merely held that the communications were subject to the privilege should all other necessary elements be present.
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BARRISTER BITES By: Angelia M. Nystrom, UT Institute of Agriculture
JD, LLM
HIKING TIPS AND CAMP-FIRE FAVORITES Thankfully, no one in my household has ended up with salmonella or e-coli. Let me explain: Hugh and Trace have been involved with Scouting since Trace was a second grader. Their adventures have taken them far and wide, including numerous camping trips over the years. I became a little worried, however, when, after one such adventure, my nine-year old son remarked, “Well, dad fixed the burgers, and you would have barfed. Mine was red and cold on the inside.” As someone obsessed with food safety, I have been concerned. At the beginning of sixth grade, Rob Frost’s son, Charlie, joined the troop. I’ve known Rob for a number of years, and he seems to be a bit more cautious than Hugh and Trace. After the first campout that year, Trace came home raving about the food that Rob made. Instead of Hugh’s e-coli burgers, Trace had really great food that was fully cooked. After thanking Rob for making sure that my son doesn’t die from food-borne illness on these trips, I asked how he became such a good camp-out cook. Rob says that he boils their adventures (and the food) down to two types: car camping and backpacking. “Car camping is great. It’s also awful. Why is it great? For the same reason it is awful. You can pack your car so full that one more toothpick won’t fit. Want to take a cast iron skillet? Play it safe- take two cast iron skillets. You can pack all the food, cooking equipment and many of the comforts of home you want. Your only limit is the size of your vehicle. You’re pitching your tent mere steps from where you park, so if you drive a Ford Expedition or another living room on wheels, you are all set. Bring the twenty person Coleman tent that has a foyer and a chandelier. Two burner camp stove, Dutch oven, coffee pot, cutting boards, Ginsu knives, sharpener for Ginsu knives, generator, you name it- it all can go with you. If you have a good cooler, food really isn’t an issue. With car camping, I can make Bananas Foster, grill out steaks and make apple cobbler, and it all tastes like I made it at home,” says Rob. I always feel great when Troop 757 goes on a car campout. Recently, though, a group of them did a three-day backpacking trip down the South Rim of the Grand Canyon. I was concerned about Hugh’s ability to pack food and water. He packed a decent amount of water and some protein bars … and pretty much nothing else. The night before they were heading in, Rob was talking about the weight and variety of his food – none of which had been considered by Hugh. Suffice it to say, I was concerned. Thankfully, all survived… but Rob and Charlie fared much better in the food department than Hugh and Trace. I asked Rob for some backpacking tips.
“What makes the backpacking food great is the setting you are in and the people you are with. The setting can be spectacular- you’re with friends and your son and his friends on a mesa down in the Grand Canyon, under a canopy of trees in Cumberland Gap or alongside a stream with a fire burning as snow falls,” says Rob. He continues, “Backpacking is really about the lightness and smallness of everything- your gear, your clothes and your food. Everything you need for days is slung across your back, so it has to be lightweight. You can try to have one home-like meal on your first day if you can keep it cold enough so it doesn’t spoil before you cook it. You can also take tortillas or sandwich thins and cured meat or small containers of peanut butter. After that for us, it’s fruit, nuts, trail mix, freeze dried meals and other assorted prepackaged items.” Per Rob, “Freeze dried food is really light to carry, but it has limitations. It takes water, and water is heavy. On our trip to the Grand Canyon, everyone took water down into the canyon with them. However, because of the weight involved, no one took enough for the entire trip. We later hiked an eight mile loop to a small stream to filter and haul back more water to our campsite and all we needed for the crawl back up to top of the rim.” He continues, “The taste of the freeze dried food is enhanced by the hard work put in hiking to the spot where you eat it. The harder the hike, the better the food tastes. If you do a test run of the freeze dried food in your own kitchen, you may be disappointed. Eating outside in a beautiful setting after a long hike will enhance the taste.” “There are four things I look for in freeze dried meals,” says Rob. “First, does it sound good? Mountain House has great granola with milk and blueberries, beef stroganoff and spaghetti. Quaker Oats instant oatmeal is also good.” “Second, will it agree with you? I don’t get too adventurous if I’m going to be out in nature for some time- no spicy Thai anything for me.” “Third, what’s the salt content? Most freeze dried food is very high in salt and comes with a long shelf life (I’ve seen up to 30 years). And, considering most of the time two meals come in one pouch, you might eat the whole pouch. Eating salty meals will wear on you.” “Finally, prep time. Freeze dried food doesn’t cook- it marinates in hot water you’ve boiled. Some take up to twenty minutes to marinate. Freeze dried food can be purchased in pouches where you pour the water in and eat out of the same pouch. Also, remember that for breakfast, lunch or dinner that Pop-Tarts have no prep time.” I’m thankful for Rob’s tips… and also knowing that Trace is safe from food-borne illness when he is around. I’m also thankful that Hugh has been relegated to making coffee.
More recipes can be found in the online version of the November DICTA in the Publications Section at www.knoxbar.org 18
DICTA
February 2019
VITE ET CREDE By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.
THE DAY AFTER GROUNDHOG DAY The air temperature that night was thirty-six degrees. The water was much colder. It had already been a miserable couple of days for Captain Hans Danielsen and his 130-member crew since they left Newfoundland five days before.1 The weather was stormy, and Sgt. Ernest Heaton reported 50foot waves.2 The ship was built to accommodate around 400 people – passengers and crew. For this trip, there were 904 people aboard.3 Needless to say, the accommodations were a little bit cramped. But, no one boarded that ship expecting a Carnival cruise. It was February 2, 1943, and the SS Dorchester was headed to the U.S. base in Narsarssuak, Greenland carrying 597 soldiers, 171 civilians, and a thousand tons of supplies.4 The world was at war. Naval engineers were still cleaning up the wreckage of Pearl Harbor. The men aboard the SS Dorchester knew their cramped bunks and meager meals on the ship might be the most comfort they would have for awhile. But, the SS Dorchester was not alone that night. Hidden by the storms, the U-233 had been tracking its movements for hours.5 Captain Danielsen knew there was a U-boat in the area but as long as the U-233 stayed at the surface, the Dorchester’s sonar could not detect it.6 That night, he ordered everyone aboard to sleep in their clothes and life jackets.7 Just after midnight, on February 3, 1943, the U-233 fired three torpedoes at the USS Dorchester. Only one hit its target, but that one was deadly.8 It struck just below the waterline near the engine room, and it ripped a hole in the starboard side all the way to the top deck.9 The explosion and freezing water that flooded in killed nearly one-third of the men aboard within the first couple of minutes.10 Only two of the fourteen lifeboats could be launched, and only 33 men made it into the boats.11 That left the rest of the men with a Hobson’s choice: enter the icy waters or stay with the ship. The odds of surviving either were miniscule, and according to survivors, the panic was tangible.12 But, there were four men on board who did not panic. Father John P. Washington was a thirty-five-year-old Catholic priest. He tried to join the Navy after Pearl Harbor, but the Navy turned him down because he was blind in one eye. So, he turned to the Army and managed to “accidentally” cover the bad eye both times during the eye test. The Army let him in, and he became a chaplain. Within months of enlistment, he wrote to Army Headquarters asking them to transfer him overseas. The Army obliged and put him on the Dorchester.13 George L. Fox was a forty-three-year-old Methodist minister. He had already earned a Silver Star as a medic in World War I and was serving as an itinerant minister in Vermont when Pearl Harbor was attacked. He re-enlisted in the Army as a chaplain the same day that his son enlisted in the Marine Corps. He too was on the Dorchester.14 Clark V. Poling had preaching in his blood. He was the seventh generation of ministers and was the pastor of the First Reformed Church in Schenectady, New York. He enlisted in the Army as a chaplain shortly after Pearl Harbor, and, at the age of thirty-three, found himself on the Dorchester headed to Greenland.15 Rabbi Alexander D. Goode also had ministry in his blood. His father was a rabbi, and after he graduated from Eastern High School in February 2019
Washington, D.C., he married a rabbi’s daughter. He was the Rabbi of Beth Israel synagogue in York, Pennsylvania when he got the news about Pearl Harbor. He previously tried to join the Navy in January 1941, but like Father Washington, he was rejected. All of that changed after Pearl Harbor. The Army Air Forces allowed him to enlist. So, at the age of thirty-two, he joined Father Washington, RevLt. Fox and RevLt. Poling as the fourth chaplain on board the Dorchester.16 The night before the attack, the chaplains tried to organize a talent show to keep up morale, but the storms made that impossible. So, they opted for a party in the mess, and then Father Washington held mass attended by people of many different faiths.17 After the explosion, the chaplains headed to the deck. They passed out life jackets to those who disobeyed the Captain’s order earlier that night to sleep in their life jackets. Father Washington gave absolution to men as they jumped over the side. Soldier after soldier told them to abandon the ship, but they refused.18 In the chaos, they heard a voice, “I can’t find my life jacket.” “Here’s one, soldier” was the response. It was Chaplain Fox. He took off his life jacket and put it on the soldier. Lieutenant Mahoney started to go back to get the gloves he had left behind. Chaplain Goode stopped him, and said, “Don’t bother Mahoney. I have another pair.” Chaplain Goode took the gloves off his hands and gave them to Lieutenant Mahoney.19 Survivors say they were last seen standing on the deck, praying in the middle of a group of men as the ship sank barely 30 minutes after being struck. 20 Only 229 people survived.21 In 1948, Congress designated February 3rd as “Four Chaplains Day.” As far as I can tell, every year, a Pennsylvania rodent gets more press the day before than any of these four men on their official holiday. That is unfortunate. Although seeing a groundhog predict the weather is admirable, seeing four chaplains with different backgrounds and different beliefs give their life jackets, their gloves, their faith, their courage, and their lives for the men who they swore to serve is infinitely more admirable. Seeing sacrifice over division is believing. 1 Command Sergeant Major James H. Clifford, USA-Ret. No Greater Glory: The Four Chaplains & the Sinking of the USAT Dorchester, available at https://armyhistory. org/no-greater-glory-the-four-chaplains-and-the-sinking-of-the-usat-dorchester. 2 Video Interview of survivor Sgt. Ernest Heaton, available at https://www.youtube. com/watch?v=99ozaYa9fB4. 3 Dorchester Army Troop Transport, https://uboat.net/allies/merchants/ship/2616.html (last visited Jan. 9, 2019). 4 Id. 5 Id. 6 Clifford, supra n. 1. 7 Dorchester Army Troop Transport, supra n. 3. 8 Id. 9 Clifford, supra n. 1. 10 Id. 11 Dorchester Army Troop Transport, supra n. 3. 12 Clifford, supra n. 1. 13 Id. 14 Id. 15 Id. 16 Id. 17 Id. 18 Id. 19 Id. 20 Interview of Sgt. Ernest Heaton, supra n. 2. 21 Dorchester Army Troop Transport, supra n. 3.
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Photo Ops
VETERANS LEGAL CLINIC Volunteer attorneys Douglas Dunn, Tim Grandchamp, Brett Mayes, Kevin Newton, David Noel, Bill Routh, Sam Rutherford, Will Terrell, David Yoder, Allison Starnes-Anglea, Kathryn Ellis and Wesley Pendergrass joined students Tyler Sims, Samiah Patton, Sean Roberts, Christina Spier, Adam Morris and Regan Sherrell to assist veterans and their families at the Barristers’ Veterans Legal Advice Clinic on January 9, 2019.
barrister bullets BARRISTERS MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month at the Bistro by the Bijou (807 South Gay Street). Social time begins at 5:00 p.m., and the meetings begin promptly at 5:15 p.m. The first meeting of the year will be held on February 13, 2019. There are many opportunities to get involved, and you are encouraged to contact Barristers President Mikel Towe (mtowe@lewisthomason.com) or Vice President Allison Jackson (ajackson@emlaw.com) for more information. VOLUNTEER FOR MOCK TRIAL COMPETITION The Barristers Mock Trial Committee is looking for volunteers to serve as presiding judges, scoring judges, and bailiffs for this year’s KBA High School Mock Trial Competition. Volunteers are needed February 22-24, 2019. If you wish to volunteer for any of these dates, please visit knoxbar.org/mocktrial to sign up. If you have questions, please contact the Mock Trial Committee Co-Chairs, Amanda Tonkin at amanda.tonkin@ssa.gov or Soojin Kim at skim@emlaw.com. SUPPORT THE VOLUNTEER BREAKFAST The Volunteer Breakfast occurs on the fourth Thursday of every month at 6:15 a.m. at the Volunteer Ministry Center (511 N. Broadway). We serve breakfast to about thirty to forty individuals and finish our work around 7:30 a.m. The Barristers Volunteer Breakfast Committee needs volunteers to prepare and serve food and
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sponsor each breakfast. We need four or five volunteers each time, and sponsorships are $150.00. You can volunteer, sponsor a breakfast, or both! Please join us in serving the needy in our community. If you would like more information about volunteering or sponsoring a breakfast, please contact the Volunteer Breakfast Committee CoChairs, Paul E. Wehmeier at pwehmeier@adhknox.com or Matthew Knable at knablelaw@gmail.com, or sign up at knoxbar.org/volunteer. STAFF THE VETERANS’ LEGAL ADVICE CLINIC The Veterans’ Legal Advice Clinic is a joint project of the KBA/ Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox County Public Defender’s Community Law Office, the University of Tennessee College of Law, Lincoln Memorial UniversityDuncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. We serve approximately twenty to thirty veterans each month who have a variety of legal issues, including, but not limited to, family law, landlord/tenant, bankruptcy, criminal defense, consumer protection, contract, child support, and personal injury issues. We need attorney volunteers for the next two clinics, which will be held on February 13 and March 13 from 12:00 to 2:00 p.m. at the Knox County Public Defender’s Community Law Office (1101 Liberty Street). Register to participate by clicking on February 13 or March 13 in the Event Calendar at www.knoxbar.org.
DICTA
February 2019
SCHOOLED IN ETHICS By: Alex B. Long Doug Blaze Distinguished Professor of Law University of Tennessee College of Law
A PROSECUTOR’S ETHICAL OBLIGATION TO DISCLOSE EXCULPATORY INFORMATION: TAKE TWO Tennessee Formal Ethics Opinion 2017-F-163, dealing with the ethical obligation of prosecutors to disclose exculpatory information to the defense, recently completed one of the stranger journeys an ethics opinion has ever been on. In March 2018, the Tennessee Board of Professional Responsibility issued the opinion (even though its numbering suggests a 2017 publication date). A few months later, the three U.S. Attorneys in Tennessee jointly signed a letter urging the BPR to withdraw the opinion. Following a public hearing in September, the Tennessee District Attorneys General Conference filed a petition to stay the opinion, which the BPR granted in November. Finally, in December 2018, the Board voted 4-1 not to amend or withdraw the opinion. So, what was the big deal? Why the opposition from the Department of Justice and the months of uncertainty? To understand, one needs to back to 1963. This was the year the United States Supreme Court decided Brady v. Maryland, 373 U.S. 83 (1963). Brady held that that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.” (emphasis added.) The decision was based on the special role that prosecutors play in the criminal justice system: “Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.” Subsequent rules of professional conduct built on Brady, culminating in Tennessee ‘s adoption in 2010 of TRPC Rule 3.8(d), which requires that a prosecutor “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.” TRPC Rule 3.8(d) is based on the ABA’s identically-worded rule. Prior to Tennessee’s adoption of the rule, the ABA had issued Formal Ethics Opinion 09-454 (2009), which explored a prosecutor’s obligations under the rule. According to the opinion, a prosecutor’s ethical obligations under Rule 3.8(d) are broader than the prosecutor’s constitutional obligations under Brady. The opinion explained that not only must a prosecutor disclose material exculpatory under Rule 3.8(d), the prosecutor must disclose information favorable to the defense. The difference is potentially significant. Provided the information is favorable to the defense and known to the prosecutor, the prosecutor must disclose the information without regard to the anticipated impact of the evidence or information on a trial’s outcome. As the opinion explains, “The rule thereby requires prosecutors to steer clear of the constitutional line, erring on the side of caution.” The Tennessee BPR relied heavily on the ABA’s opinion in drafting its own opinion on Rule 3.8(d) in Formal Ethics Opinion 2017F-163. In light of the fact that Tennessee borrowed the ABA’s rule and borrowed it after the ABA had already issued its own opinion, this result is hardly surprising. It would stand to reason that when the Tennessee
Supreme Court adopted the ABA Model’s Rule, it intended also to adopt the ABA’s interpretation of that rule. See State v. Casper, 297 S.W.3d 676, 692 (Tenn. 2009). So, what were the objections of prosecutors? There were plenty of them. See http://www.prosecutorialaccountability.com/wp-content/ uploads/TN-US-Attorneys-Letter-to-Board.pdf First, in their letter to the BPR, the three U.S. Attorneys in Tennessee cited the numerous federal statutes, rules, and decisions that attempt to strike a balance between the interests of defendants, victims and witnesses, and the “institutional interests relating to the efficient functioning of the criminal justice system.” In the opinion of the U.S. Attorneys, the Tennessee and ABA ethics opinions ignored the balance that had attempted to be struck. In addition, the prosecutors complained that the Tennessee opinion overstated the extent to which there is agreement at the state level that the scope of a prosecutor’s ethical obligations is actually broader than the obligations mandated by Brady. Finally, the U.S. Attorneys cited a host of potential practical concerns posed by Formal Ethics Opinion 2017-F-163. These concerns ranged from the alleged lack of meaningful guidance the opinion provides to prosecutors, to the concern that the opinion creates a conflict between a prosecutor’s legal and ethical obligations, to the concern that “the Opinion invites the use of Rule 3.8(d) as a tactical weapon” whereby defense attorneys may file or threaten to file an ethics complaint when dissatisfied with the scope or timing of discovery. Readers who are interested in a fuller picture of the concerns raised should read the letter itself. Ultimately, following a hearing in November, the BPR decided not to amend or withdraw its opinion. Therefore, under TRPC Rule 3.8(d), a prosecutor who knows of evidence and information favorable to the defense must disclose it as soon as reasonably practicable so that the defense can make meaningful use of it in making such decisions as whether to plead guilty and how to conduct its investigation, regardless of whether the information qualifies as “material” under Brady. This (perhaps) ends the debate (for the foreseeable future at least).
If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835.
February 2019
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LEGAL MYTH BREAKERS By: David MGC
E. Long
TENNESSEE PUNITIVE DAMAGES AND THE SIXTH CIRCUIT The recent December 21, 2018 Sixth Circuit case of Lindenberg v. Jackson National Life Insurance Company, et al.,1 held the punitive damages cap under the Tennessee Civil Justice Act of 20112 is unconstitutional because it denies the right to a jury trial as guaranteed by the Tennessee Constitution. While only persuasive authority in Tennessee state courts, the opinion now controls federal courts in diversity jurisdiction litigation, and certainly moves the ball up the field toward the Tennessee Supreme Court being forced to address the issue. Again, I apologize, but the space for this article is limited, so a complete and thorough analysis of this case and its history, including the history of the issue in the courts, is impossible here. Moreover, the case contains several issues that were appealed, but we address only the punitive damages issue in this article. The case involved a bad faith lawsuit for failure to pay a life insurance policy. At trial, the jury found the insurance company breached the contract and awarded actual damages of $350,000.00, additional damages of $87,500.00, and punitive damages of $3,000,000.00. Defendant renewed its earlier summary judgment motion as a motion for judgment as a matter of law, and argued the court should apply the Tennessee statutory damages cap at two times the compensatory damage award or $500,000, whichever is greater. The plaintiff argued the caps were unconstitutional. The district court, upon plaintiff ’s motion certified two questions to the Tennessee Supreme Court, one question being whether the statutory caps violated the right to a jury trial under Tennessee’s Constitution3 and/or whether the cap imposed by the legislature violated the separation of powers doctrine. The Tennessee Supreme Court recognized both questions as first impression issues, but declined to address either of them.4 As a result, the district court rejected the defendant’s motion, but applied the statutory caps to the jury award of punitive damages, reducing it to $700,000.00. The Sixth Circuit addressed it prior holding in Heil Co. v. Evanston Insurance Co.,5 which held the Tennessee bad faith statute6 provided the “…exclusive extra-contractual remedy for an insurer’s bad faith refusal to pay on a policy.”7 Under the Heil case, the punitive damages claim would have been dismissed. The Court discussed the Tennessee appellate decision of Riad v. Erie Insurance Exchange8 as evidence of Tennessee courts’ abrogation of Heil in allowing for other extra-contractual remedies and damages outside of the bad faith statute.9 Based on prior cases and T.C.A. sec. 56-8-113, the Court held Tennessee courts would likely follow Riad in finding the bad faith statute was not an exclusive remedy in the right situations.
eliminate or replace common law remedies. While true, the Court reasoned, the legislature’s ability to do so is limited by the state constitution. Another interesting argument by the defendants was the damages cap simply applies legal consequences to a jury’s findings of fact. In other words, the cap works like remittitur. The jury makes it decision and the cap is applied if necessary, without the jury even knowing about it. Thus the statutory cap does not replace the jury as factfinder. It merely applies a “regulation.” The Court pointed out that the legislature has been able historically to influence remittitur but not control it based on prior Tennessee Supreme Court cases. The Court, however, held the right to a jury trial belonged to the litigant, not the jury members. Thus, the ignorance or knowledge of the jury regarding the caps is not the issue. The issue is the litigant’s right to have those matters decided by a jury, and the legislature’s attempt to take away that right is unconstitutional under the Tennessee Constitution. The effect of the Lindenberg case remains to be seen, but one thing is apparently clear. My partner Josh Wolfe pointed out it will certainly have an effect on removal actions to federal court in cases where punitive damages are alleged. It will also likely have an effect on federal filings in cases where punitive damages are alleged. Ultimately, it also places another weight on the scale toward the Tennessee Supreme Court finally deciding the issue. 3 4 5 6 7 8 9 1 2
10
No. 17-6079 (6th Cir., December 21, 2018). T.C.A. sec. 29-39-104. Article I, sec. 6. Lindenberg v. Jackson Nat’l Life Ins. 2016 Tenn. LEXIS 390 (Tenn. 2016). 690 F.3d 722 (6th Cir. 2012) T.C.A. sec. 56-7-105. Heil, 690 F.3d 722, 728 (6th Cir. 2012). 436 S.W.3d 256 (Tenn. Ct. App. 2013) The Court also discussed Myint v. Allstate, 970 S.W.2d 920 (Tenn.1998) which held the bad faith statute was not an exclusive remedy and allowed Tennessee Consumer Protection Act Claims. T.C.A. sec. 56-8-113 was passed by the General Assembly in reaction to Myint. It is a confusing statute that essentially makes 56-7-105 the exclusive statutory remedy, assuming no other statutes impact it, but also leaves open any available common law action without further explanation. Six arguments against. We address the more interesting ones.
In turning to the constitutional issues, the Court held Art. I, sec. 6 of Tennessee’s Constitution did not guarantee a jury right in every trial but only as the right existed at common law in North Carolina at the time the Tennessee Constitution was ratified in 1796. The Court went on to hold that at the time of ratification, punitive damages were part of the right to jury trials and were part of the jury function of fact-finding. As such, the Court held the statutory caps were unconstitutional. Defendants presented several arguments, which the Court rejected.10 First, defendants argued punitive damages were not factual findings. The court concurred some states do not treat this as a finding of fact, but held Tennessee does so. Another interesting argument was defendants’ assertion that the cap was constitutional because the legislature can
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DICTA
February 2019
BAR HOPPING By: Brady Cody Lewis Thomason
Back for 2019, Bar Hopping will highlight one of the many beautiful courthouses around the State. The trick? It is up to you to figure out where. Congratulations to Adam Rust for correctly identifying the Joel Solomon Federal Building and U.S. Courthouse in Chattanooga, Tennessee. This week we’re headed back to the drawing board. Think you can name this courthouse? Email me at bcody@lewisthomason.com with your answer. Correct answers will receive a shout-out in the next issue of DICTA. Check back next month for the reveal and a list of the big winners. Have a photo that you would like to submit? Send me an email and have it featured in an upcoming issue.
Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records: Tammy N. Barry BPR #: 036725 The Law Office of Tammy N. Barry 424 Maryville Hwy., Suite 4 Sevierville, TN 37865-5739 Ph: (865) 312-5431 info@tammybarrylaw.com Tamara P. Boyer BPR #: 015426 East Tennessee Foundation 520 W. Summit Hill Drive, Suite 1101 Knoxville, TN 37902-2012 Ph: (865) 524-1223 t.boyer@etf.org Christian L. Cummins BPR #: 036777 Christian L. Cummins, Attorney at Law P.O. Box 1293 Knoxville, TN 37902-1293 Ph: (865) 272-9784 clcumminslaw@gmail.com
February 2019
DICTA
23
B I L L & P H I L’ S G A D G E T S By: Bill Ramsey Neal & Harwell By: Phil Hampton Founder and CEO, LogicForce Consulting
FACEBOOK PORTAL Just in case you slipped into a Rip Van Winkle coma and slept through all the new tech products of the past six months; you may not realize that video-to-video chats are all the rage now. Yes, we know iPhone users have been Face-Timing for what seems like eons in tech years, but now Facebook, Google, Amazon and others have taken the concept to a whole new level. Facebook started advertising their new video chat device in late 2018; and, putting privacy concerns aside for a minute, we decided to give it a try. We ordered the Portal on Amazon during the holidays, and apparently we weren’t the only ones. Amazon had a limit on the number of devices you could buy at a time. It turns out that a lot of people received Portals as gifts from friendly (or nosey) family members. So, what is the Portal? It is Facebook’s solution for the popular gadget genre known as the “smart screen.” It could be described as a digital picture frame, a smart speaker, and a video calling device. There are currently two versions available: the Portal, a smallish 10.1” display that looks sort of like Amazon’s Echo Show, and the Portal+, a rotatable 15.6” display mounted on a base that contains built-in speakers. Of course, as always, we opted for the larger, more expensive Portal+. To get the full value out of the Portal, you need to have another Portal to connect to, or be friends with someone who has one. The essential purpose of the device is to facilitate video chats between Facebook Messenger users. Now, there is the first rub for us. To try this new device out, we had to be Facebook Messenger users. If anyone is paying attention, you may have noticed that Facebook has been causing more than a little heartburn with some of their privacy policies. We duly noted the potential risk, but also vowed to not share any state secrets during our Portal test drive. The Portal is indeed a handsome device, if you can describe tech gadgets that way. The screen is mounted on a sturdy backbone that has a built-in speaker, and the screen will rotate for either portrait or landscape modes. Setup was a breeze; and within minutes we were connected to our Wi-Fi signal and seeing a list of all our Facebook friends that we might want to call for a video chat. Calling a friend is as easy as touching their profile picture on the screen or just saying “Hey Portal, Call Bill.” The person gets a ringing notification on their Portal (or the Facebook Messenger app on their phone if they are mobile); and they can accept or reject the call. (This is similar to the mechanism on the Echo Show.)
What really makes the Portal unique among the other smart screen products that we have seen is the ability of the camera to track a person’s movement, or body tracking. As you talking to someone on a video call and need to move around the room, the camera will zoom in and move to keep you in focus as you move. This feature is absolutely fantastic and makes Portal calls seem much more personal and less techy. Even with multiple people on camera, if one person moves, the camera will adjust to try to fit everyone in the camera frame. We think this is a killer feature for the Portal that elevates it above the other smart screens currently on the market. The Portal also doubles as a smart speaker with Alexa integration for voice commands. So all of the skills that you can use on your Alexa device can be used with the Portal. Boom. You give up nothing in terms of Alexa functionality by purchasing the Portal over any of the Amazon Alexa devices; and you gain a superior video chat experience in our view. In our testing, we set our Portal in a public place in the home, like a kitchen or den; but we could imagine the Portal being a great device for the office. It is not inconceivable to use it as a video chat device for business calls, except we wish it could be decoupled from Facebook Messenger. Maybe it will someday. Yes, we know a lot of people have voiced concerns about privacy with these types of devices, and Facebook has been pilloried for some of their privacy issues. It’s probably not a great comfort, but the Portal does come with a plastic lens cover that you can use to cover the camera, and there is a button on the top of the device that you can push to disable the audio and video on the device. We make no claims about how Facebook is treating this data that it undoubtedly collects from the Portal. Facebook claims that video calls are encrypted end-to-end and the company cannot even access the feeds, much less use your data. Our recommendation is caveat emptor. Casting a wary eye toward Facebook’s evolution on the privacy issues it faces, we are pleasantly surprised with functionality of this first Facebook hardware device. Of course, you know we are going to try out the other competing products in this genre (Amazon Echo Show and Google Home Hub), so stay tuned for more updates.
Once the person you are calling answers, get ready for show time because your screen fills with the feed from their built-in video cam; and, likewise, they are seeing you up close on their screen. We were impressed with the crispness of the video and the clarity of the audio. You get the sense that the person is just in the next room. Rotating the screen to landscape mode allows you to see a larger field of view to show many people. We tested with family members; and the whole family was able to participate in the call with everyone being in view of the cam.
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February 2019
WELL READ By: Jasmyn McCalla Law Student, University of Tennessee College of Law
ENHANCING JUSTICE: REDUCING BIAS In the last few years, marginalized groups have become more vocal about the injustices they face every day. With this new-found awareness, many individuals have been forced to confront their own biases, conscious or unconscious. It is not comfortable to confront a personal weakness or shortcoming. However, we are in a profession that serves a variety of individuals from diverse backgrounds. As a profession, we must continue to evolve in order to represent our clients. The evolution of our profession requires us to take a more proactive stance on ways that we can fix the injustices in a system that we swear to uphold. The law is not unique in its interaction with diverse clientele and individuals in a variety of economic standings. Social workers and law enforcement must also interact with a diverse populace. However, the law is unique because we are speaking on behalf of our client. How can lawyers claim that they are representing their client when we are struggling with our own misconceptions? Enhancing Justice: Reducing Bias was written by a team of authors with diverse and relevant expertise relating to the issues of implicit biases in the practice of law. In this book, all levels of the legal profession come together to address what we can do to address the implicit bias in the legal system. Each chapter addresses implicit bias and frames the issue to specifically relate to the author’s career and expertise. The authors use real-world experiences and anecdotes to push the reader to understand that unconscious bias can be manifested in minute ways.
As a profession, we cannot continue to pretend that racial and socioeconomic biases do not exist. “African-American suspects are more likely to be arrested, more likely to be indicted when they are arrested, more likely to be convicted when they are indicted, and serve longer sentences on average than their White counterparts.”2 These disparities are not arbitrary. One author acknowledges that the majority of judges do not harbor the older “open racial animus and bigotry,”3 but still the disparities persist. Enhancing Justice: Reducing Bias recognizes the disparities and confronts the possibility of unconscious biases in a profession that stresses its impartiality. As a graduating law student, I find value in encouraging attorneys and judges to look in the mirror and ask themselves if they are genuinely advocating for their client’s best interests or whether they are running into their own stereotypes. It is also possible that recognizing our own stereotypes and biases allows us to recognize those biases in others. Ultimately, Enhancing Justice: Reducing Bias encourages the legal profession to balance the scales of justice.
1
2
3
Judge Theodore McKee, Enhancing Justice: Reducing Bias viii (Sarah E. Redfield ed., 2017). Jeffrey J. Rachlinksi & Judge Andrew J. Wistrich, Enhancing Justice: Reducing Bias 89 (Sarah E. Redfield ed., 2017). Judge Andrew J. Wistrich & Jeffrey J. Rachlinksi, Enhancing Justice: Reducing Bias 89 (Sarah E. Redfield ed., 2017).
Many might roll their eyes at the title of the book because it seems as though implicit bias training has been a frequent topic of CLEs and general legal training. This book presents a refreshing take on the complexities of implicit bias. Authors invite the reader to be interactive with the book and address their own biases, while also educating the reader about the real-world dangers of implicit bias within the legal profession. Implicit bias is not limited to the uninformed or the uneducated. Judge Theodore McKee states that “[t]his book helps explain how so many who pride themselves on being fair can be part of a system that is so widely seen as unfair by those who have historically been the victims of bias and prejudice….”1 This book is unique in its structure that each chapter can be read separately. However, there is a logical organization to the progression of the text that allows the reader to understand and explore the complexity of implicit biases. One of my favorite chapters in the book – chapter 5 – was written by Judge Andrew J. Wistrich and Jeffrey J. Rachlinksi. This chapter explains how implicit bias manifests in judicial decision making. Judges are not immune from unconscious bias. However, many judges are not trained on how to recognize and combat those biases. Uniquely, the authors suggest that the key to limiting unconscious bias is to make the judges more aware of an individual’s race or environment in order to compensate for the bias.
February 2019
DICTA
25
YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris Lincoln Memorial University Duncan School of Law
SAY WHAT?
Law professors like to parse the forty-five words of the First Amendment, to slice and dice them into what are often referred to as the five expressive freedoms the Amendment protects: religion, speech, press, assembly, and petition. I like to do the opposite. I like to think about what those five freedoms, combined, ultimately do: They protect freedom of thought. Now, I am the first to admit that thought and expression are distinct. It’s quite possible to have entirely private opinions and feelings, and they can have immense value. But how much more valuable they become when they are expressed; and how much more informed they become when they are exposed to the ideas and criticisms of others. Thought and expression are inextricably intertwined. This is perhaps nowhere more important than in academia, which depends upon the free exchange of ideas both in the transmission and the generation of knowledge. A notable example comes from perhaps the greatest assemblage of scientific minds in history: the Manhattan Project. When Leslie Groves, the Army general in charge of the project, tried to compartmentalize the various departments at Los Alamos – a standard security measure – Robert Oppenheimer, who led the scientists there, strenuously objected. People working on one aspect of the atomic bomb, he argued, might gain valuable insight from speaking with those working on something seemingly unrelated. Oppenheimer prevailed, and Los Alamos made scientific and engineering history.1 Our Supreme Court has repeatedly recognized the importance of academic freedom. In Sweezy v. State of New Hampshire, it ruled in favor of a professor at the University of New Hampshire, who refused to answer questions about his alleged communist affiliations. The Court’s plurality opinion noted that, “[t]eachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”2 In a stirring concurrence, Justice Felix Frankfurter wrote: ‘In a university knowledge is its own end, not merely a means to an end. A university ceases to be true to its own nature if it becomes the tool of Church or State or any sectional interest. A university is characterized by the spirit of free inquiry, its ideal being the ideal of Socrates – ‘to follow the argument where it leads.’ This implies the right to examine, question, modify or reject traditional ideas and beliefs. Dogma and hypothesis are incompatible, and the concept of an immutable doctrine is repugnant to the spirit of a university. The concern of its scholars is not merely to add and revise facts in relation to an accepted framework, but to be ever examining and modifying the framework itself.”3
Since both Sweezy and Keyishian were decided more than fifty years ago, the question of academic freedom and the First Amendment would appear to be well-settled. Nonetheless, challenges persist, from both the left and right. In 2016, I interviewed Professor Douglas McKechnie of the United States Air Force Academy5 about Melissa Click, a teacher of communications and journalism at the University of Missouri. Dr. Click tried to bar a student journalist from a public part of campus where African-American students were holding a protest. At one point, she seemed to threaten physical violence against the student, calling for “some muscle” to keep the student away from the protestors. Dr. Click was later fired.6 A year later, I spoke with Professor Donald P. Moynihan, the Director of the LaFollette School of Public Affairs at the University of Wisconsin – Madison.7 Dr. Moynihan lamented the interference by conservative members of his state legislature in his university’s academic program, a phenomenon not confined to Wisconsin. Legislators hold, to a significant extent, the purse strings of public universities, so their interventions can be particularly problematic. One institution of higher learning not far from Knoxville that is confronting these issues head-on is Appalachian State University, in Boone, North Carolina. Every year, Appalachian holds an event devoted to campus free speech. The event is called “Say What?” and it lasts the better part of a week. It includes speeches, panel discussions, displays, and lots of interaction between students, faculty, administrators, and the general public. I was honored to be asked to moderate one of those panels, and to give a keynote address entitled, “Of Fascists and Snowflakes: Liberty, Equality, and the Modern American University.” I spent two days in Boone, two enlightening, inspiring days. The people at Appalachian are genuinely committed to free expression, even when it’s painful. For example, the University has recently allowed pro-life demonstrators to display placards with graphic photos of aborted fetuses, despite objections from many quarters. It welcomes speakers with diverse viewpoints to campus. And it encourages students to grapple with the problem of unpopular speech. During my presentation, one young woman candidly admitted to me that “I just don’t like freedom of speech, even though I know that it’s what’s right, and what makes America so great. And so it, like, kind of pisses me off, hearing all this.” To which I responded, “If I don’t piss people off, I haven’t done my job.” You can listen to this exchange – and much more – online, on the podcast version of the “Say What?” episode of my public radio show, Your Weekly Constitutional. But be warned: it might piss you off.
Ten years later, in Keyishian v. State of New York, the Court explicitly extended First Amendment protection to academic freedom when New York tried to force several university faculty members to certify that they were not communists: Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.4
Rhodes, The Making of the Atomic Bomb, Simon and Schuster, New York (1986). They made other kinds of history, as well, but that’s a topic for another day. 2 354 U.S. 234, 250 (1957). 3 Id. at 262-63. 4 385 US 589, 603 (1967). 5 Your Weekly Constitutional, “How Free is Free Speech on Campus?” available at www.ywc.podomatic.com. 6 She has found a new position at Gonzaga University, in Washington State. 7 Your Weekly Constitutional, “Academic Freedom and Free Speech,” available at www.ywc.podomatic.com. 1
Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. 26
DICTA
February 2019
LONG WINDED By:
Jason H. Long London Amburn
A KBA FEEL GOOD STORY I credit Cheryl Rice for the following column. I told her part of this story last week and she told me I should share it with others. If you enjoy it, she deserves the credit. If you don’t like it or find it boring, she deserves the blame. If it angers you or moves you to complaint, her telephone number is 546-0500. As most people know, I am married to a lawyer. Moreover, we both graduated from the University of Tennessee College of Law and are proud to call ourselves Vols (I’d like to point out here that Tennessee currently has the third-ranked men’s basketball team in the country – a random aside, but I keep reminding everyone about it). However, we did not know each other in law school. I graduated a couple of years before my wife enrolled. That begs an interesting question that we have struggled to answer for the past 19 years: How did we meet? Our kids have been curious, and we aren’t really sure. Many couples have that “eureka” moment where they see each other across a crowded room or are seated next to one another on an airplane or bus, and they just know, from that first moment, that they will be together. That is not how it happened for Carol Anne and me. I can recall an Inn of Court presentation I went to around 1999 or so when the presenting group included law student members. Carol Anne spoke that night, and I have a distinct recollection of thinking “wow, this woman is a really poised speaker. She is a law student standing in a room full of lawyers and exuding complete confidence.” However, I don’t recall speaking with her that night or following up to find out more about her.
The point is, our lives intersected several times before Carol Anne had even graduated law school, and neither of us have been able to pinpoint when we first met or even when we first learned the other’s name (in my case, learned her correct name). I do, however, have a distinct memory of working on a KBA Habitat for Humanity House one Saturday and being stuck inside painting. I say “stuck” for me because I am not a very good painter. As you may guess by looking at me, I am not very good at detail/precision work. “Bull in a china shop” is the phrase that most often comes to mind. As a side note, I suffer from “familial tremors” which cause my hands to shake somewhat uncontrollably when I get fatigued. After a full day of exterior work and then interior painting, I was a shaking/trembling mess, and the painting I had done inside the house looked awful. What made the day memorable, and among the best of my life, was that, by the time we were wrapping up, the only other person in that room painting with me was Carol Anne. I can’t recall what we talked about, but I can recall having a great time. Not long after, we were seated together at a Barristers meeting and the rest, as they say, is history. The KBA does a lot of great things. It connects our members, provides resources for lawyers to improve their practice, promotes education to better the profession, gives an outlet for charitable work, provides support for lawyers who are struggling, promotes the standing of lawyers in the community, facilitates access to justice for those who need it, and a thousand other things we take for granted every day. For me, the KBA introduced me to the most important person in my life. For that, I will forever be truly grateful.
My wife will tell you about the time that she was chair of UT’s Moot Court Board and was responsible for organizing the Advocate’s Prize (Moot Court competition). While I have blocked it from my memory, she will tell you that I was a volunteer judge and, in the round I was supposed to judge, she gave us all instructions that the competition was on a tight schedule so we needed to keep our questions and comments at the end of the round brief. Evidently, I was too mesmerized by her beauty to pay attention to the words coming out of her mouth because I rambled on at the end of the round, firing questions at the participants and causing us to go well over the prescribed time period. As she tells the story now, she was sitting in the back of the room furious that I apparently paid no heed to her request. Sarah Sheppeard may tell you about the time that I was working as an associate in her office. Carol Anne was looking for a summer clerkship. Apparently, she sent a cover letter and resume to Sarah who brought it to me and said, “I like this woman, but we are not in a position to make any new hires right now. Do you mind sending her a rejection letter?” I told Sarah I would and promptly drafted one. The problem is (and I have zero explanation for this), I managed to spell my wife’s first, middle, and last names wrong. For the record, there is no “e” in Carol, there is an “e” in Anne, and I butchered the last name so badly that it would take more than the one thousand words I am allotted in this column to explain it. Needless to say, my future wife was not too pleased to receive a rejection letter in the first place, but then insult was added to injury when the jackass who wrote the letter didn’t even take the time or courtesy to spell any of her names correctly. In all honesty, I have made a lot of errors in my life, but this is the one that haunts me the most. I like to think that it speaks volumes about my personality that Carol Anne eventually agreed to marry me. I must be one charming guy to come back from that. I think it more likely that the episode speaks to her capacity for forgiveness. February 2019
DICTA
Jason Long
Carol Anne Lamons
KBA Habitat House 2004
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AROUND THE COMMUNITY By: Campbell Cox UT College of Law
A NEW TRADITION OF SERVICE, OPPORTUNITY, AND LEADERSHIP – VOLS FOR VETERANS Vols for Veterans (VFV), founded by a small group of law students in the spring of 2017, quickly set out to make a difference in their law school community and the Knoxville veteran community at large. While being involved in pro-bono projects like the UT Pro Bono alternative spring break program at Fort Campbell, KY, and assisting with the Knoxville Barristers/LAET’s monthly Veterans Legal Aid Clinic, the organization also immediately saw an opportunity to support the student veteran community at the UT College Of Law. In 2017, Vols for Vets established, and began work to endow, a scholarship which they named the “Gen. Clifton Cates Leadership Scholarship,” to be awarded to two student veterans, or student family members of veterans, each year. The scholarship’s namesake, General Clifton B. Cates, a graduate of the UT College Of Law, was one of the most decorated officers from WWI and WWII and the 19th Commandant of the Marine Corps. While the organization saw early success in being awarded the Charles R. Burchett Extraordinary Contributions to Campus Life Award at the UTK Chancellor’s Honor Banquet, VFV’s efforts were truly highlighted on October 11th, 2018, when they hosted their Inaugural Gen. Clifton Cates Leadership Scholarship Dinner at the Cherokee Country Club. The beautiful venue was packed, with over 200 distinguished guests in attendance, including Gen. Clifton B. Cates’s own grandson, Clifton Cates III. Guest speakers for the evening included VFV President, Capt. Chris Davis, USMC, Clifton Cates III, Judge John M. Rogers of the Sixth Circuit Court of Appeals, and Barrett Bogue, Vice President of Student Veterans of America. Ending the night with a call to action utilizing Gen. Cates’s famous words “I will hold,” VFV made significant progress during the fundraising dinner toward the $25,000 mark of endowing the scholarship. In the New Year, VFV hopes to continue its traditions of promoting service, opportunity, and leadership, continuing its work with the Gen. Clifton Cates Leadership Scholarship, and planning for the second annual Leadership Scholarship Dinner. More information on VFV can be found on their Instagram and Facebook pages @volsforvets and the organization can be contacted at volsforveterans@gmail.com.
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DICTA
February 2019
BENCH AND BAR IN THE NEWS How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to Marsha Watson at mwatson@knoxbar.org.
with the firm since he graduated from the UT College of Law in 2013. He focuses his practice on commercial real estate development, entrepreneurial law, franchise law, representing land trusts on conservation easements, and a variety of other business transactions.
LEGAL HISTORY VIDEOS AVAILABLE
PARALEGAL ASSOCIATION FEBRUARY MEETING
The Smoky Mountain Paralegal Association (“SMPA”) will hold its monthly meeting on Thursday, February 14, 2019, at 12:00 p.m. at BASS BERRY & SIMS NAMES NEW the Blount Mansion Visitors Center, Knoxville, PARTNER Tennessee. Sarah E. C. Malia, MS, JD, and James Polk Moneyhun, Jr. was named a Member Emily Heird, LPC/MHSP, Clinical Therapist, at Bass, Berry & Sims PLC. Moneyhun focuses will be presenting on Collaborative Law. A his practice in traditional public finance matters lunch buffet is available at the cost of $12/person (including conduit bond financings) and in with reservations. Please contact Caroline property tax abatement, tax increment financing Sudlow, ACP, at president@smparalegal.org or and other governmental incentives to promote (865) 215-3676 for additional information and/ economic development. He also represents or lunch reservations. If you would be interested clients in commercial real estate and commercial in speaking at a future SMPA meeting, please lending transactions. Moneyhun earned a JD contact April L. Denard, CP, First Vicefrom the University of Tennessee College of Law President, at aprileigh34@gmail.com. and a BS from the University of Tennessee. FREE CLASSIFIEDS AVAILABLE NEW SHAREHOLDERS NAMED AT Did you know the Classified section on the KBA LONG RAGSDALE & WATERS website allows you to add your resume if you are Long, Ragsdale & Waters, P.C. has announced looking for a job or if you need to hire someone, that W. Michael Baisley, Kyle A. Baisley, Taylor you can post a job and search for candidates. D. Forrester and Alexander Oaks Waters Click on Public Resources and select “Career have joined the firm as shareholders. Michael Classifieds” from the dropdown navigation. has been with the firm since January 2018. The Classifieds receive in excess of 8,000 page He concentrates his practice in the areas of views each month so if you are looking for a job mergers and acquisitions, corporate law, LLCs or a new position, make sure to check out this and partnerships, real estate transactions, valuable resource. private securities offerings, and a variety of other business transactions. Kyle has been with SALARY SURVEY AVAILABLE the firm since February 2016. He focuses his The Knoxville Chapter of the Association of practice on commercial business and real estate Legal Administrators (KALA) conducts a transactions, entrepreneurial law, securities law, survey each year that includes general salary estate planning and firearms law. Taylor has information and fringe benefits If you would like been with the firm since January 2016. Taylor to purchase a copy of the survey, please contact concentrates his practice in the areas of zoning Charlotte Welch at cwelch@opw.com. The cost and land use, real estate development and of the survey is $150.00. finance, real estate and business transactions, government relations and regulatory affairs, and general civil litigation. Alexander has been
In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources. OFFICE SPACE AVAILABLE: •
McKellar & Easter is seeking an attorney to rent office space in its West Knoxville location. Rent shall include access to the internet, phone lines, a fax line, and copy machines. Additional office space can be provided for a legal assistant or paralegal if necessary.
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Please email a resume and cover letter to ndm@helpingclients.com 3,000-plus s.f. of office space near downtown. Easy access. Downtown views. Ample parking. Two suites of five offices, plus five separate offices. Spacious, attractive lobby. Common kitchen. Highly responsive, nonprofit, landlord on premises. Call 865-525-6806 for information. Contact Frank Graffeo at 525-6806.
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Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 900 sq ft. Present floor plan accommodates four offices plus a conference room and a reception area. One Level. Offices on either side occupied by long-term law firms. Very Affordable Rate with a two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.
JOB LISTING
The Board of Professional Responsibility is hiring an attorney as Disciplinary Counsel for the Board’s Litigation Section, Appeals. The attorney will litigate attorney disciplinary matters before hearing panels and special judges in trial courts and prepare cases for appeal to the Tennessee Supreme Court. Applicants must be licensed in Tennessee with a minimum of seven years’ experience in the practice of law and have significant experience in appellate advocacy. Practice before the Tennessee Supreme Court preferred. To apply, the applicant should submit a current resume, at least one writing sample, three professional references and a completed application for employment by email to human.resources@tncourts.gov. The application may be found at http://www.tsc.state.tn.us/employment/disciplinary-counsellitigation-section-appeals. February 2019
DICTA
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Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System
PRO BONO SPOTLIGHT By: Kathryn Ellis Pro Bono Director Legal Aid of East Tennessee
Want to Volunteer?
Fill out our new Pro Bono Volunteer Survey: https://www.surveymonkey.com/r/DCTWYFSt
A PRIVILEGE TO PRACTICE AND A DUTY TO SERVE Six times a year, the Knoxville Bar Association’s conference room is filled with members of the KBA’s Access to Justice Committee. In recent years, the committee has formed multiple subcommittees focused on different projects and different immediate goals, but they each share the same primary goal – attaining equal access to justice for all members of our community. Attaining equal access to justice is not a new goal and it is not something unique to Knoxville area attorneys. In fact, it is a goal that has been sought for generations both in the United States and elsewhere. In 1886, Frederick Douglas stated, “Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob, and degrade them, neither persons nor property will be safe.” More than seventy years later, in 1955, Martin Luther King, Jr. declared, “True peace is not merely the absence of tension; it is the presence of justice.” In 1964, U.S. Supreme Court Justice Hugo Black noted, “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” In more recent decades, the discussion has turned toward the roles attorneys can play in helping those in their community attain equal access. Three of the women who have sat on the United States Supreme Court, Justice Sandra Day O’Connor, Justice Ruth Bader Ginsburg, and Justice Sonia Sotomayor, have each spoken about the role of performing pro bono legal services. Each woman has noted that attorneys have a responsibility or a duty to serve their community. Their words evince the concept of servant leadership. “We educated, privileged lawyers have a professional and moral duty to represent the underrepresented in our society, to ensure that justice exists for all, both legal and economic justice.” U.S. Supreme Court Justice Sonia Sotomayor (November 2002) Years before Knoxville’s own Jason Long led the Tennessee Bar Association in its efforts to embrace the Evolving Legal Marketplace, Justice O’Connor wrote, Certainly, life as a lawyer is a bit more complex today than it was a century ago. The ever-increasing pressures of the legal marketplace, the need to bill hours, to market to clients, and to attend to the bottom line, have made fulfilling the responsibilities of community service quite difficult. But public service marks the difference between a business and a profession. While a business can afford to focus solely on profits, a profession cannot. It must devote itself first to the community it is responsible to serve. I can imagine no greater duty than fulfilling this obligation. And I can imagine no greater pleasure. 78 Or. L. Rev. 385, 391 (1999). Emphasis added. Justice Ginsburg echoed this sentiment in 2014 when she said, “Lawyers have a license to practice law, a monopoly on certain services. But for that privilege and status, lawyers have an obligation to provide legal services to those without the wherewithal to pay, to respond to needs outside
themselves, to help repair tears in their communities.” Each time the Access to Justice Committee meets (the next meeting is Tuesday, March 12 at 4:00), its members report on plans for Faith & Justice Clinics, Veterans Advice Clinics, Debt Relief Clinics, Expungement Clinics, and clinics for Knoxville’s large immigrant population. Members also report on updates being made to a handbook about legal issues as they relate to domestic violence that serves as a resource to attorneys, advocates, and citizens. And, they constantly brainstorm ideas for new ways to reach all members of our community who could benefit from access to attorneys. Each time it seems that it’s not possible to plan a different type of clinic or outreach event, the committee comes up with something to serve even more of our neighbors. On March 9, there will be a clinic focused largely on the senior members of our community. In collaboration with the CAC’s Office of Aging’s Rise Above Crime program, LAET and the KBA will hold a clinic at the L.T. Ross Building on Western Avenue. The Rise Above Crime program is free program offered by the Office of Aging to older adults who have been victimized by crime. While the clinic will be open to all members of the community, the goal is to have attorneys present who can give advice to senior citizens about some of the unique issues they face. Please join us at any of the upcoming clinics listed above or at the Access to Justice Committee meeting on March 12 to help us help our community as only we attorneys can.
Mark Your Calendars: * February 2 (9:00-12:00) – Knox County Saturday Bar at LAET’s Knoxville Office * February 9 (9:30-12:30) – Debt Relief Clinic at the Knox County Public Defender’s Community Law Office * February 13 (12:00-2:00) – Veterans Advice Clinic at the Knox County Public Defender’s Community Law Office * February 16 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County Office ___________________________________________ * March 9 (9:00-12:00) – Free Legal Advice Clinic Co-Sponsored by LAET, the CAC’s Office of Aging, and the KBA at the L.T. Ross Building (2247 Western Ave., Knoxville) * March 13 (12:00-2:00) – Veterans Advice Clinic at the Knox County Public Defender’s Community Law Office * March 16 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County Office
THANK YOU Knox County Public Defender’s Community Law Office for Providing Space for All of LAET’s Veterans Advice Clinics and Debt Relief Clinics in 2019! The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902 phone (865) 637-0484 e-mail:kellis@laet.org fax (865) 525-1162
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DICTA
February 2019
Q: A:
THE LAST WORD By:
Jack H. (Nick) McCall
John, would you share with DICTA’s readers how the Tennessee Bar Association’s Leadership Law program was (almost) a life and death experience for you?
JOHN T. WINEMILLER Merchant & Gould, P.C.
Around Labor Day of 2005, I was invited to apply to become a member of the Class of 2006 of the Tennessee Bar Association’s Leadership Law program (“TBALL”). At the time I was a junior associate at Hunton & Williams, a BigLaw firm then with a small office in Knoxville. I had not heard of TBALL before, but I was intrigued by program description. So I submitted my application and was accepted. Our first TBALL meeting was scheduled for January 2006 at Montgomery Bell State Park, a state resort near Dickson, west of Nashville. As a relative newcomer to Tennessee (I’m from Wisconsin), I hadn’t been to many places in the state, but I had been to Dickson once. In fact, I took my first deposition there. I deposed two teenagers in a messy toxic tort case. My sole instruction was not to make them cry. I succeeded. So I knew a little about the area. My first stop on the drive to Dickson was breakfast at the Bearden Panera with one of my fellow board members of the now-defunct Actors Co-op. I recall not feeling great. But I knew TBALL had a strict attendance policy: No Missed Meetings! So I told myself to suck it up and power through it. It’s about a four-hour drive to Dickson. By the time I arrived, I was definitely not feeling great. I remember speaking with my father, a physician, from the parking lot at Montgomery Bell. He urged me to get some rest and not push myself. Wise man. I checked in and joined my classmates for the first afternoon of events. I felt increasingly tired and hot, but my Midwest fortitude got me through the day. By the dinner time, I was exhausted and in pain. For people who have not been to Montgomery Bell, dinner involves about ten different kinds of fried food (most prominently, catfish) and zero fresh food, except maybe iceberg lettuce on the salad bar. I tried to eat, but I just couldn’t. I went to my room and declared it an early night. The next morning was rough. I made it to all the class sessions, but I was having a really hard time concentrating. I was sweating and felt exhausted. When the first break came, I went to my room to rest. Fifteen minutes, I went back for the next session. That’s the way it went for the rest of the day. By the end of the afternoon, my fatigue was such that I could barely stand for more than a few minutes. I skipped dinner and the group activities, including the obligatory TBA hospitality suite. Normally, I’d welcome doing those things, but I just felt so bad, all I could do was to go back to my room and try to sleep. Overnight I kept asking myself, What am I going to do? I really don’t want to go to a hospital in Dickson County, so far from home. Soon it was Sunday morning, there was breakfast, and people were leaving to go home. What I remember about driving back home is that a Lady Vols game was on the radio, and it was a good diversion. In particular, because they won. I started feeling better, and I congratulated myself for powering through it. I felt bad that I had not really gotten to know anyone in my TBALL class, because I had to lie down at every break. (After the fact, Charles Swanson, who was one of the TBALL organizers, said, “Yeah, we really wondered what was up with you!”) While I was still very tired, I was feeling better on the drive home.
That night, I had committed to hosting a charity fundraiser at Bruce Bogartz’s restaurant in Homberg, but I could not even stand up straight during the event. I tried hard to be cheerful. But I was bent over in pain, and I know I looked flushed. Someone even had the temerity to ask if I was hungover! When I admitted to feeling even worse by the next morning, my husband, R.J. Hinde, declared that I was going to the doctor – “no questions asked, mister.” He drove me; I could barely walk to get to the elevator in the medical building. The doctor walked in and asked me just one question, “Have you eaten anything?” I said I had not eaten anything in two days. Although he had been in the room with me for less than a minute, he said with complete certainty: “You have appendicitis.” I was put in a wheelchair and taken across the street to Fort Sanders Medical Center. I thought, Now, at least, I’m going to get some relief. But then I sat in the waiting area for what felt like hours. Finally, I got a PET/CT scan, which confirmed the diagnosis. Sidebar: I had done legal work for CTI, the manufacturer of the scanner. So, as they put me in the scanner, I thought, Hey, I represented this company! Looking back, I now ask myself, why the heck was I thinking about work when was so sick? As it turned out, my appendix had likely burst sometime before I drove back from Dickson. The reason that I felt better as I drove back was because all the pressure in my appendix had been relieved. The downside, of course, was that I was at serious risk of becoming septic. I was hospitalized for a week. They pumped me full of antibiotics and antifungals. People die, of course, of peritonitis. I was very, very sick. I don’t think that I realized until later how very ill I actually was. Q: John, having heard your story, I have to say, it seems to me like there is some kind of big “life lesson learned” here. So, what do you think it might be, for the benefit of DICTA’s readers? A: There is such a lesson here: If you are a Type A, hard-charging young associate at a white-shoe, mega law firm who thinks he needs to do everything all the time – answer phones and emails 24 hours a day, power through illnesses, etc. – just don’t. Listen to your body; obey your body! It’s okay not to power through everything. In fact, it’s sometimes quite foolish to power through everything. Don’t try to be a health hero or law firm super hero. I’ve lived through a burst appendix and have worked for several of the most hardcharging lawyers in Knoxville. But I will tell anyone who listens that ignoring your health out of some twisted sense of dedication or ambition is not how to prove oneself – or advance the cause of your clients! This lesson is easy for me to share now. But I was a slow learner. As I lay in my hospital bed, I emailed my boss at the time, John Lucas, and told him, “I have a burst appendix and I’m in the hospital, but I brought stuff to work on.” Yes – cringe! – I said that. To his credit, John, who has been a great friend and mentor to me, said: “Why don’t you just take care of yourself?” And so I did. I suppose I was of no use to John or our clients if I were dead. And he certainly wasn’t going to bill for my time! Clearly, I had not learned let alone internalized my own life lesson just yet.
“The Last Word” column is coordinated by KBA Member Nick McCall. If you have an idea for a future column, please contact Nick at nick.mccall@gmail.com February 2019 DICTA
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Prsrt Std US POSTAGE
PAID
KNOXVILLE, TN PERMIT NO. 3 0 9
P.O. Box 2027 Knoxville, TN 37901
EXPO
Law Practice Today
April 11 & 12
U.T. Conference Center 600 Henley Street, Knoxville, TN knoxbar.org/expo
#KnoxBarExpo
REGISTER NOW! Session seating is limited and fills up fast!
Technology & Management Best Practices for a Modern Law Office The Knoxville Bar Association’s Law Practice Today Expo is where legal professionals learn law practice management best practices and tips on how to use technology more efficiently. You will find programming to help lawyers and their staff adapt to the changing needs of their clients. Discover solutions, new technology, and emerging trends. Regardless of your expertise level, there’s something for you at the KBA’s Law Practice Today Expo. Conference attendees can select from up to 22 CLE sessions on Thursday and Friday with flexible registration options (individual sessions, single day or all‐Expo passes). KBA Members can earn up to 8 hours of “Live” in Classroom CLE Credit with the All-Expo pass for just $175. Discounted rates for staff and free passes are offered to 2018 bar admittees and law students. Expo attendees can win big due to the generosity of our sponsors! Thousands of dollars in door prizes plus a $1,000 grand prize will be given away. Also, Free Exhibit Hall Only passes are available for Thursday and Friday to attorneys, their staff and law students.
Customize Your Experience Select the CLE courses that will most benefit you and your firm. Industry experts and longtime ABA TECHSHOW faculty will be on hand to provide practice tips that you can immediately put to use in your daily practice.
Something for Everyone
Your chance to WIN BIG!
Explore law practice management best practices and tips on how to use technology more efficiently. Litigation and Transactional Law tracks have been added along with a track for those who want to understand law firm marketing.
A free Exhibit Hall Pass is available to attorneys, law students and any member of your law firm's staff. The first 100 registrants who preregister will receive a free box lunch on Friday, April 12, compliments of The Trust Company.