Practice Tips: The (Almost) Uniform Interstate Subpoena Process . . . Page 9 Schooled in Ethics: “Clients Are Not Property”: Ethical Considerations When a Lawyer Leaves the Firm . . . Page 13
A Monthly Publication of the Knoxville Bar Association | January 2020
SUPREME COURT CONSIDERS CONSTITUTIONALITY OF CFPB STRUCTURE
Photo Ops ETHICS BOWL XIII
There was fierce competition for the Ethics Bowl trophy this year on Friday, December 6. The six teams competing for the Justice League version of the Ethics Bowl included: Legally Blond: Hon. Kristi Davis and Rachel Hurt; The Defenders: John Halstead and Sarah Parker; Beauty & Brains: Ron Attanasio and Steve Sharp; Team Justice: Sean Deitrick and Sam Lee; EMAD R.O.C. Starz: Melissa Carrasco and Will Kittrell; and Dream Team: Deno Cole and Lori Fleishman. Different teams took the lead during the competition but in the end, The Defenders team won. The questions were challenging and the competition was fierce. Special thanks to U.T. College of Law Professors Alex Long and Paula Schaefer for serving as program hosts and Judy Cornett for serving as the Ask a Professor Lifeline. Ethics Panel Participants included Chancellor John Weaver, Hon. Mary Beth Leibowitz and Hon. Debbie Stevens. The CLE Committee would like to recognize the following KBA members for their help in drafting the questions used in the Ethics Bowl: Travis Brasfield, Peter Brewer, Derrick Davis, Spencer Fair, Chris Field, Susan Herndon, Alex Long, Christina Magrans-Tillery, Stacie Miller, Jay Moneyhun, Paula Schaefer, James Stovall, Emily Stulce, Paul Wehmeier and Chuck Young.
BARRISTERS ELECTIONS & HOLIDAY PARTY More than seventy-five members attended the Elections and Holiday Party held on December 11, 2019. Barristers President Mikel Towe presented the President’s Award to Meagan Collver and Jason Collver in recognition of outstanding performance and dedicated service as Co-Chairs of the Hunger & Poverty Relief Committee. Past Presidents of the Barristers lined up to pass the gavel to Allison Jackson, Egerton, McAfee, Armistead & Davis, P.C., who will serve as the President of the Knoxville Barristers in 2020. Election Results: Vice President Amanda Tonkin, Social Security Administration Secretary/Treasurer Bryce Fitzgerald, Kramer Rayson LLP Members At Large Meagan Collver, London Amburn, P.C., and Courtney Read, Watson, Roach, Batson & Lauderback, P.L.C.
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DICTA
January 2020
In This Issue
Officers of the Knoxville Bar Association
COVER STORY
January 2020
16
Supreme Court Considers Constitutionality of CFPB Structure
CRITICAL FOCUS
5 President Hanson R. Tipton
President Elect Cheryl G. Rice
Treasurer Jason H. Long
Secretary Loretta G. Cravens
KBA Board of Governors Jamie Ballinger Mark A. Castleberry Hon. Kristi Davis Elizabeth B. Ford
Rachel P. Hurt Allison Jackson Elizabeth (Betsy) Meadows Robert E. Pryor, Jr.
Immediate Past President Wynne du Mariau Caffey-Knight
Michael J. Stanuszek Amanda Tonkin Elizabeth M. Towe Mikel Towe
The Knoxville Bar Association Staff
President’s Message
Your Bar
The (Almost) Uniform Interstate Subpoena Process
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Practice Tips
Management Counsel: Law Practice 101
Privacy And Social Media In The Workplace
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15
Schooled in Ethics
“Clients Are Not Property”: Ethical Considerations When a Lawyer Leaves the Firm
Legal Update
The Future is Now: Loss of Privacy and Genetic Genealogical DNA Analysis
WISDOM
6 Governor’s Award Recipient Profile Marsha S. Watson Executive Director
Tammy Sharpe CLE & Sections Coordinator
Jonathan Guess Database Administrator
Leslie Rowland 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
Rebecca Eshbaugh LRIS Assistant
Dicta
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 Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Sarah Booher Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho
Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Elizabeth Towe
Managing Editor Marsha Watson KBA Executive Director
DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. January 2020
Thomas S. Scott, Jr.
Hon. Pamela L. Reeves
Tennesseans for Historical Justice
Let’s Skip on Down to Inskip Grill
Protecting the Growth and Character of Fountain City
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DICTA
Judicial Excellence Award Recipient Profile Around the Community Passing By
Urban Legends
The Noblest Profession In the Oddest Places
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Legal Myth Breakers
23
Outside My Office Window
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Bill & Phil Gadget of the Month
“Party in Interest” and Declaratory Judgment
Volume 48, Issue 1
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.
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The Lost Highway
Keep Your Hands to Yourself - Gadgets for Complying with Tennessee’s New Hands-Free Law
Well Read
Book Review - Lead Yourself First: Inspiring Leadership Through Solitude
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Your Monthly Constitutional
Impeach This!
Tom Hagen – Lawyer Profile
27 28
Long Winded
Barrister Bites
Death, Taxes, and Christmas Breakfast
COMMON GROUND
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Section Notices/Event Calendar Barrister Bullets Bar Hopping Bench & Bar in the News Pro Bono Project Last Word
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SECTION NOTICES & EVENT CALENDAR
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. you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777) or Daryl Fansler (546-8030). 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 8 and volunteer registration is available at www.knoxbar.org. If you have a 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 know how you can get involved or have suggestions for CLE topics, 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. The section plans regular CLE throughout the year. If you would like to know how you can get involved or have suggestions for CLE topics, 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).
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January 7 8 8 8 9 9 14 14 15 23 28 30
Law Office Tech Committee Meeting Veterans Legal Advice Clinic Barristers Officers Planning Meeting Diversity in the Profession Committee Meeting Lunch & Learn Judicial Committee Professionalism Committee Access to Justice Committee Meeting Board of Governors Meeting Bar Leaders Event CLE Committee Meeting New Lawyers Section Event
February
3 ADR Section CLE 4 Law Office Tech Committee Meeting 11 Professionalism Committee Meeting 12 Veterans Legal Advice Clinic 12 Diversity in the Profession Committee Meeting 12 Barristers Monthly Meeting 13 Lunch & Learn 13 Judicial Committee 19 Board of Governors Meeting 21 High School Mock Trial Competition 22 High School Mock Trial Competition 23 High School Mock Trial Competition 28 Memory Skills CLE
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 Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Hon. Suzanne Bauknight (545-4284) 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 2018 will automatically be opted-in to the section. Save the date for the inaugural event for 2020 which will be held on January 31. The event will be held at Club LeConte and our guest speaker for the event will be Mitchell Panter, Lewis, Thomason, King, Krieg & Waldrop, P.C. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Courtney Walker (292-2307) or Chuck Sharrett (637-0203). Solo Practitioners & Small Firms Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tripp White (712-0963), Mary Miller (934-4000) or Tim Grandchamp (524-1873).
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DICTA
Mark Your Calendar Law Practice Today Expo April 2 & 3
January 2020
PRESIDENT’S MESSAGE By: Hanson R. Tipton
Watson, Roach, Batson & Lauderback, P.L.C.
YOUR BAR Hello KBA! As I begin my first monthly column for DICTA as president, I want to first thank Wynne Caffey Knight for her excellent leadership this past year. At the Annual Meeting in 2018, Wynne stated clear goals for her term as bar president, and I think we can all agree that she accomplished and even exceeded those goals. Wynne told us that she wanted to focus on servant leadership and civility, and this was apparent all year at events like the Golden Gala in February, the sold-out Law Practice Today Expo, the Law Day Luncheon with Keel Hunt that focused on “reaching across the aisle,” and at the Supreme Court Dinner with Vicki Clark. Wynne also spoke passionately about the opioid epidemic and this was one of her focuses all year long. Thanks to Wynne’s efforts – including a regular DICTA column that was recognized nationally – our membership is now more aware of the issues we face with this growing problem, and we are more prepared to fight it. I hope we will all continue to do so. Wynne also oversaw numerous events and projects like our bar association’s first-ever Wellness Expo and our first-ever Economics and Law Practice Management Survey. I am proud that my first act as president was to present Wynne with a plaque in recognition of an outstanding year as president of the Knoxville Bar Association. She has left big shoes for me to fill. I also want to thank all of the committees and sections of the KBA. I continue to be amazed by all the great work our committees and sections do. And I of course want to thank the members of the Board of Governors and congratulate our four new members on their elections. I look forward to working with all of you this year to further the mission of our bar. More than anyone though, I want to thank the amazing KBA staff, Marsha Watson, Tammy Sharpe, Tracy Chain, Jonathan Guess, Leslie Rowland, and our newest addition, Rebecca Eshbaugh. Any of you who have served the KBA in any capacity know that these folks are the backbone of the bar. They are the reason your bar runs like a well-oiled machine. As I begin my year as bar president I would like continue our focus on a couple of specific areas: SERVANT LEADERSHIP At the Supreme Court Dinner in September, Vicki Clark said something that has really stuck with me: “If service is BENEATH you, then leadership is BEYOND you.” As lawyers we are leaders in the community whether we want to be or not. The public looks to us for a number of reasons and not just when they need legal help. Our members do great things, from writing articles on topics of public interest for the newspaper to the Barristers serving breakfast at Volunteer Ministry. This year will be no different. In addition to our regular service activities we will also be building a house for Habitat for Humanity. The KBA has partnered with Habitat for over 25 years and has helped build 8 houses for families in need. I know this project is close to the hearts of many of our members but perhaps none more so than our friend Bob Stivers, who unfortunately passed away last year. I hope that you will all choose to contribute to this Habitat Build financially or with labor and do so in honor of Bob. This year is also notable as the centennial of women’s suffrage, in which our state played an important role. We will be recognizing this important anniversary in a number of ways, including a panel discussion at our Law Day Luncheon.
January 2020
CIVILITY Wynne made civility a priority last year and Keith Burroughs emphasized it two years ago as well. We live in an increasingly uncivil world and our profession is an adversarial one. For many years the Knoxville bar has enjoyed a reputation as the most collegial and civil in the state. As Luke Ihnen wrote in his tremendous DICTA piece late last year about the Butcher Bank litigation, for decades now lawyers from outside Knoxville have marveled at how well we treat each other, even from opposite sides of the courtroom. That is something we need to protect. Many of you know that even the Supreme Court of Tennessee has recently recognized the increasing need for civility by changing the oath that new lawyers take when they are sworn in. The Rules of Professional Conduct require civility as well. But the Knoxville Bar Association has always gone beyond what is REQUIRED, especially in the arena of how we treat each other. YOUR BAR One thing we do that fosters civility is what we do every week at committee and section meetings, CLEs, and social functions: we gather. We associate. Bar participation helps us see each other as people and not just as names on a letter (or these days on an e-mail.) The Knoxville Bar Association is the best bar association in the state BECAUSE of the tremendous participation of its members. But we can do better. There will always be KBA members who pay their dues and do nothing more. But I have found that most members are willing to give something back, especially if you go out and ask them. Participation does not always have to be attending events or serving on committees. With nearly 2000 members, our bar is made up of a broad variety of people with an even broader variety of talents and interests. The types of bar service I enjoy may not be the same things that you enjoy. But when we give to this organization, we are invested in it. It is OUR bar. And the more of us take ownership of it, the stronger it will be. I would like to challenge all of you in the coming year – bring someone to a KBA event. Bring someone to your committee meeting. Bring someone to Expo, the Supreme Court Dinner, or the Annual Meeting next year. Show them what they are missing out on. Tell them, “This is YOUR bar.” Across the country bar associations are struggling to attract and retain new lawyers and we are not immune to this trend. Our tremendous KBA staff is constantly working on ways to engage a younger generation of attorneys and we have seen great results from our recent website design. Hopefully you are already following the KBA on whatever social media you use. At the Bar Leaders Conference this month, we will be talking to Dean Melanie Wilson from UT and Dean Gary Wade from LMU about the changing ways to communicate with young lawyers. We would love to hear any other ideas from our members about better ways to attract and retain members. If there is anything we can do better, please let us know. This is YOUR BAR. And it’s as strong as YOU make it. Help me reach out to our members and local non-members. Bring a young lawyer to a Lunch and Learn. Or the Memorial Service, which I have found to be one of the most important days of the bar year. Encourage non-members you know to join the KBA. I am excited about the year ahead and I look forward to working with all of you to continue making the Knoxville Bar Association – YOUR BAR – the best bar association in the country.
DICTA
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GOVERNOR ’S AWARD RECIPIENT PROFILE By: Bill Vines
Butler, Vines & Babb
THOMAS S. SCOTT, JR. 2019 RECIPIENT OF KBA GOVERNOR’S AWARD The 2019 recipient of the Knoxville Bar Association’s Governor’s Award is Thomas S. Scott, Jr. The award is designated as the Association’s highest award for an attorney, and is given to an attorney each year who is deemed to be specially respected and considered a role model attorney. Tom Scott is a graduate of the University of Tennessee School of Law, where he was on Law Review and Order of the Coif. He has always been in private practice as a civil trial attorney, first, with Arnett, Draper & Hagood, subsequently, Ball & Scott, and now with the firm of Scott and Cain. He has served the Knoxville Bar Association as a member of the Board of Governors from 1986 to 1991 and as President in 1990. He has been heard to say that this crowning achievement was something no other President could do - he hired Marsha Watson as Executive Director. Marsha has been the guiding light for the Association since that time!
Tom has served as an Adjunct Professor of Law in Trial Practice and also in Advanced Trial Practice at the University of Tennessee for a number of years, and has served as a faculty member of the Tennessee College of Trial Advocacy for 17 years. He was appointed to the Tennessee Board of Professional Responsibility by the Tennessee Supreme Court and served as its Chairman from 2007 to 2009. He served the Tennessee Bar Association as a Speaker at numerous litigation seminars and on the Unauthorized Practice Committee for 3 years. He was a charter member of the Tennessee Chapter of the American Board of Trial Advocates and served as the President in 1991. He was a Charter Member of the American Inns of Court and served as President in 1992. He received the honor of being inducted as a Fellow in the American College of Trial Lawyers. He is listed in Best Lawyers in America and numerous other similar publications. Tom is very respected as a trial lawyer and has tried many cases considered to be complex. He is known for his deep resonant and clear voice. In fact, he was asked by the Clayton Center for the Arts to narrate a documentary having to do with East Tennessee. Importantly, Tom is one of those attorneys believed by the Knoxville Bar Association to be a role model attorney. He is deserving of its highest award.
WELCOME NEW MEMBERS
THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS: NEW ATTORNEYS Angela M. Blevins
NEW LAW STUDENT MEMBERS Matthew Arent
Maddie Copes Breeding Henry Baysan, PC
Rochelle A. Oldfield Law Office of Rochelle A. Oldfield
Taylor Currie Erwin
Kelsey C. Osborne Paine | Tarwater | Bickers, LLP
Robert A. Fritsche
Rosemary E. Phillips
RaDonna A. Gaddis
Mycol E. Scott Long, Ragsdale & Waters, P.C.
Andre O. Johnson
Jacob L. Gilliam Jacob Truman Hayes Ryan A. Haynes Wine and Spirits Wholesalers of Tennessee David L. Hull TN Dept. of Safety & Homeland Security Heather G. Inman Inman & Waters
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Sydney Nenni Tennessee Valley Authority
Jessica M. Coker Victoria D. Dishner Darrius D. Dixon
Andrew Gaither
Hayden B. Short Lewis, Thomason, King, Krieg & Waldrop, P.C.
Megan A. Jones
Evan Roddy Smith
Jennifer Schilling
Kara Lee Stevens
Lyndon Keith King, Jr.
Rachel Susan Wallace Clark and Washington
Matthew B. Long Law Office of Matthew B. Long, PLLC
Dillon Eduardo Zinser Law Office of Joshua S. Reed
DICTA
Claire H. Love Victoria Ungos Bronte Ward
January 2020
JUDICIAL EXCELLENCE AWARD RECIPIENT PROFILE By: Bill Vines
Butler, Vines & Babb
PAMELA L. REEVES, CHIEF JUDGE, U.S. DISTRICT COURT, E.D. TENN. 2019 RECIPIENT OF KBA JUDICIAL EXCELLENCE AWARD Each year, a committee appointed by the President of the Knoxville Bar Association considers whether the Judicial Excellence Award should be given. It has rarely been given. This is a very sensitive area. In truth, the judges who have served the Knoxville area are well respected and are good judicial administrators. Generally, it has been felt that the award should not be given simply because a person does a good job as a judge, but there should be more. The committee generally has felt that the award should only be given in recognition of the body of work and accomplishments believed to be outstanding, not only as a judge, but as a contributing member of the community and the legal profession. In 2019, the selection was easy. One person clearly deserved to be recognized by the Bar Association and be placed in that category of Judicial Excellence. That person, in 2019, is Pamela L. Reeves, Chief Judge U.S. District Court, E.D., Tenn. Those who know Pam describe her as smart and compassionate. She stands her ground, but listens and is considerate to other views. She has always been an achiever. She is a “first person.” She became the first female President of the Tennessee Bar Association; became the first female Chair of the Knox County Election Commission; became the first female President of the American Association of Mediators; became the first female Article III Judge in the Eastern Division of Tennessee; and became the first female Chief Judge of the Eastern District of Tennessee. Throughout all of those life experiences, all who know her would say she’s one of the sweetest people we know! She knows what it is to be humble. She knows what it is to achieve. Pam is the oldest of five (5) sisters. They all lived together with their parents in a very small, four-room house back in the mountains in Grayson County, Virginia. You wouldn’t be able to go there unless you had a four-wheel drive! The house had no indoor running water! Pam was 10 years old before she lived in a house with water. Pam was determined to be successful and graduated from the University of Tennessee in 1976. She was the first member of her entire family to obtain a college degree. With Pam’s assistance, all four of her sisters have now completed college degrees.
January 2020
Her immediate family is likewise respected and successful. Her husband is Charles Swanson, our highly respected City Attorney. Her son, Reedy, is an attorney with a large Washington law firm. Her daughter, Amanda, is headed for a legal career and has received so many scholarships that it’s almost embarrassing. You may not know that Pam has a green thumb and loves to grow plants and flowers. When you go to her home you will probably notice that the basement and outdoor area is so full of plants and flowers, it bears a great resemblance to a greenhouse. She has violets which she has nurtured and maintained for almost fifty years. I am told that if her husband ever suggests the elimination of any of her plants to provide a little more room for human beings, her standard response is, “I have had that plant longer than I have had you . . . don’t make me choose between you!” It may not be surprising, considering her deep roots in the mountains and her early origins in the Cradle of Country Music, that Pam’s favorite musical artist is Kris Kristofferson. “Favorite artist” may be an understatement. During her workday, the only place she has to get away from the weighty pressures of her judicial responsibilities is to escape to the small restroom in her office. When she closes the door to that sanctuary, she can see, hung on the back of the door, a large photograph of Kris Kristofferson! After they were married, Pam assured her husband, Charles, that his only potential competition for her affections was Kris. Charles, being Charles, promptly procured tickets on the front row for a Kristofferson concert at the Tennessee Theater. After the concert, Kris shook hands with Pam and said if he ever forgot the words while he was singing, he could just look over at her and read her lips. He then shook Charles’ hand and told him, “You are a lucky man.” To which the only reasonable reply was “Yes, I know.” With her incredible record of activities and achievements, her significant professional responsibilities and her devotion to her family, you might think that is enough. It is not enough for Pam. Pam spends significant amounts of her time seeking out and making herself available to young people who aspire to a career in the law. A surprisingly large number of young lawyers in the Knoxville Bar and across the state have received the benefit of Pam’s advice, mentorship and caring supervision. She was born to nurture and she has developed that gift throughout her forty-plus years at the bar . . . to the advantage of a whole generation of new lawyers. Pam Reeves is a judge of whom we are very proud. A consummate lawyer, a leader, a friend, a mentor, and a role model (in 2008, Pam received the Bar Association’s highest award to attorneys, the Governor’s Award). Pam is a jurist who demonstrates confidence without arrogance, who models judicial temperament without being temperamental. She exercises judgment without being judgmental. Pam Reeves is deserving of the highest award the KBA accords to members of the judiciary, the Judicial Excellence Award.
DICTA
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DICTA
January 2020
PRACTICE TIPS By: Hayden Short
Lewis, Thomason, King, Krieg & Waldrop, P.C.
THE (ALMOST) UNIFORM INTERSTATE SUBPOENA PROCESS In a state like Tennessee, it is not uncommon for a lawyer to be required to obtain evidence or depositions across state lines. Considering Tennessee borders eight total states, this situation is likely more prevalent in Tennessee than anywhere else.1 But what does one do to issue and serve subpoenas interstate? Fortunately, there is a uniform law that has been widely adopted for just this purpose – the Uniform Interstate Depositions and Discovery Act (the “UIDDA”). This is a useful act for any attorney needing to subpoena a person in another state, as it provides a uniform process for issuing and serving interstate subpoenas. Initially, when starting the process of interstate discovery, an attorney should always check the laws of the state he or she intends to issue and serve a subpoena in. While the vast majority of states have enacted the UIDDA,2 there are still some stragglers. But since so many states and so many of Tennessee’s neighbors have adopted this uniform law, Tennessee’s UIDDA makes for a great example.3 Once an attorney has confirmed whether the state he intends to issue a subpoena in has enacted the UIDDA, the attorney must then consult the UIDDA for the procedure. In Tennessee, a party begins the process by submitting a foreign subpoena “to a clerk of court in the county in which discovery is sought to be conducted. . .”4 And, luckily, the request for the issuance of a subpoena under the act does not constitute an appearance in the courts of Tennessee (eliminating UPL concerns).5 Then, once a party has submitted the foreign subpoena, the clerk must promptly issue a subpoena for service on the person the foreign subpoena was directed to.6 The subpoena issued by the clerk must essentially incorporate the terms of the foreign subpoena verbatim. According to the explicit terms of the statute, the subpoena issued by the clerk “shall incorporate the terms used in the foreign subpoena and contain or be accompanied by the name, address, and telephone numbers of all counsel of record in the proceedings to which the subpoena related and of any party not represented by counsel.”7 Of course, the subpoena must be served once it is issued. After a subpoena is issued under Tennessee’s UIDDA, it must “be served in compliance with the Tennessee Rules of Civil Procedure relative to service of process.”8 This means that the subpoena must be delivered to anyone authorized to serve process and then served by such person.9 And, as one can imagine, other details of the subpoena must comply with Tennessee rules. When subpoenas are issued under Tennessee’s UIDDA and the subpoena requires attendance for a deposition, the production of documents or other tangible things, or seeks to permit inspection, “the time and place and the manner of the taking of the deposition, the production, or the inspection must comply with the Tennessee Rules of Civil Procedure relative to discovery.”10 Likewise, “[a]n application to the court for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of court under [the UIDDA] shall comply with the applicable rules or statutes” of Tennessee and must be submitted to the court in the county where discovery is to be conducted.11 Essentially, January 2020
when one seeks to have interstate subpoenas issued, he or she must comply with the local rules and laws of the state pertaining to intrastate discovery. Ultimately, the process for interstate subpoenas is similar to having intrastate subpoenas issued. In short, an attorney must: submit a foreign subpoena to the court in the county where he or she seeks discovery; ensure the subpoena is served in accordance with local rules; and comply with state laws in regard to challenges and other legal details surrounding subpoenas. Fortunately, Tennessee and most of its neighbors share uniform laws for this process. If one is familiar with serving a foreign subpoena in Tennessee, the process for most of Tennessee’s neighboring states will not present a significant challenge.
Tennessee actually ties Missouri as the states with the most bordering states. 44 states have adopted the UIDDA as of 2019. And lucky for Tennessee, every state that it borders – except Missouri – has also adopted the UIDDA. See Interstate Depositions and Discovery Act, Uniform Law Commission, https://www. uniformlaws.org/committees/community-home?communitykey=181202a2-172d 46a1-8dcc-cdb495621d35&tab=groupdetails (Dec. 8, 2019). 3 Tenn. Code Ann. § 24-9-203, et seq. 4 Tenn. Code Ann. § 24-9-203(a). 5 See id. 6 Tenn. Code Ann. § 24-9-203(b). 7 Id. 8 Tenn. Code Ann. § 24-9-204. 9 Tenn. R. Civ. P. 4.01. 10 Tenn. Code Ann. § 24-9-205. 11 Tenn. Code Ann. § 24-9-206. 1 2
DICTA
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MANAGEMENT COUNSEL: LAW PRACTICE 101 By: J. Randall Patterson
Baker Donelson
PRIVACY AND SOCIAL MEDIA IN THE WORKPLACE Today’s workplace is far different from just a few years ago. Our culture has experienced an explosion in the development of technology and particularly mobile devices. These handheld computers are great resources for not only business use, but also for self-expression through social media. This has presented new challenges for employers for which effective management solutions must be implemented. 1
As of Summer 2019, Facebook, the most popular social media platform, exceeded 1.37 billion users.2 In November, LinkedIn reported more than 660 million users in more than 200 countries,3 and Google reported processing in excess of 63 thousand queries each second.4 Blogs also create unique challenges for employers as they provide a cost-free, immediate, platform for employees to potentially voice public criticisms of the employer, its business practices, or other employees. The workplace now exists in the shadow of connectivity. Legal issues that potentially impact the management of workplace internet use include the Stored Communications Act (“SCA”),5 which creates a right to privacy for email and other electronically stored information. In the workplace, it would, for example, prohibit a business from improperly obtaining log in information for access to employee personal email accounts. An example of such a violation occurred when an employer guessed an employee’s Gmail password and accessed his personal account; the employee was subsequently terminated. Because of its actions, the employer was found in violation of the Stored Communications Act.6 The Wiretap Act7 prohibits any real-time interception of any voice or non-voice communications via wire, radio, or internet. An exception to this law, however, covers business voice mail and email accounts provided that the employer has eliminated employee expectation of privacy, and obtained a consent for access; this is particularly relevant in the case of a separated employee. The Computer Fraud and Abuse Act8 provides for both criminal and civil liability against individuals who “knowingly and with intent to defraud access a computer without authorization or exceeds authorized access, and by means of such conduct, furthers the intended fraud and obtains anything of value.” An interesting application of this law involved a case of “cyber bullying,” in which a MySpace user was prosecuted criminally after another user whom she was harassing committed suicide.9 Interestingly, the postings occurred in one state, but the servers and prosecuting jurisdiction were located half-way across the country. There are myriad uses and misuses for technology. Obviously, mobile devices free key employees from the confines of their office computer and desk phone, allowing greater flexibility; most professionals now carry at least one mobile device through which they can be reached at virtually any time of the day or night. Social media is now widely used in hiring and recruiting decisions. It is common place for Human Resources to access public portions of an individual’s social media page prior to an interview or before an offer is finalized. The following are examples of postings on social media by applicants which impacted their hiring status:
– Provocative or revealing photographs or information (53%) – Posted content about drinking or using drugs (44%) – Showed poor communication skills (29%) – Discriminatory comments (26%) – Lied about their background (24%) – Revealed confidential information from previous employer (20%) Conversely, the same postings actually helped candidates get hired: – Profile provided good information as to candidate’s personality and fit (50%) – Profile supported the candidate’s professional qualifications (39%) – Profile showed that the candidate was creative (38%) – Showed good communications skills (35%) – Good references about the candidate (19%) – Showed awards and accolades (15%)10 Another situation which ended well for the employer involved publication of information that was subject to a confidentiality agreement. A recent well publicized age discrimination case, Gulliver Schools, Inc. v. Snay,11 was resolved through a settlement which contained a strong confidentiality provision. The plaintiff’s daughter made Facebook posts about the settlement, which were viewable by more than one thousand online “friends,” many of whom attended the school from which plaintiff was terminated. The plaintiff was found to be in breach of the settlement agreement, and a significant portion of the settlement proceeds was forfeited. In Doe v. XYC Corporation, an appellate court reversed summary judgement in a matter where the wife of an employee, who had been surfing pornographic sites on his work computer, sued the employer on behalf of her minor child that had suffered molestation by the employee. The IT department had notice of the employee’s misuse of the system, but did not act. The holding suggests that not only do employers have the right, but rather an obligation, to monitor employee use, and a duty to report criminal conduct if observed.12 With increased connectivity, employers can no longer simply ignore technology and social media. An effective social media policy should contain prohibitions on the use of personal insults, obscenity, or anything else likely to tarnish the image of a business or its brands.13 A company should also extend its EEO policy, anti-harassment and antidiscrimination policies to include improper use of social media by its employees. Finally, a comprehensive social media policy might also include prohibitions on disclosure of proprietary information or trade secrets. Restrictions that can be reasonably enforced must be narrow in scope, and tailored to protect the business rather than suppress employee expression. After adopting the right social media policies, the next step is for the business to train its employees and management on the purpose of social media, and its boundaries. Finally, when a breach of policy does arise, the company should articulate the infractions, discipline consistently and fairly, and fully document any actions taken, as if those infractions occurred in the physical workplace. (Continued on page 11)
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.
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PRIVACY AND SOCIAL MEDIA IN THE WORKPLACE
(Continued from page 10)
Social media is here to stay. Technology is getting faster and smaller with the introduction of every new device. Things such as “quantum computing” are on the horizon which will speed up processing time exponentially. Such advances could be a wonderful tool for employers or a gateway to frustration, inefficiency, and loss of proprietary information. As employers seek to respond to this new phenomena, it is crucial that connectivity and social media not be ignored nor over restricted. The most successful solution lies in finding a balance between employers’ business interests and employees’ expectation of privacy. J. Randall Patterson is a shareholder resident in Baker Donelson’s Knoxville, Tennessee office where he practices employment law and acts as a Rule 31 mediator. https://www.socialmediatoday.com/news/facebook-reaches-238-billion-users-beats-revenue-estimates-in-latest-upda/553403/ 3 https://www.businessofapps.com/data/linkedin-statistics/ 4 https://seotribunal.com/blog/google-stats-and-facts/ 5 18 U.S.C. § 2701. 6 Fisher v. Mount Olive Lutheran Church, Inc., 207 F. Supp. 2d 914 (W.D. Wis. 2002). 7 18 U.S.C. §§ 2510-2523 8 18 U.S.C. § 1030 9 United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009). See also, https://www.nytimes.com/2008/11/27/us/27myspace.html 10 CareerBuilder.com Survey. 11 No. 3D13-1952 (Fla. 3d DCA Feb. 26, 2014). 12 Doe v. XYC Corporation, 382 N.J. Super. 122 (App. Div. 2005). 13 The National Labor Relations Act prohibits employer interference with the rights of employees to organize, express grievances, and discuss conditions at work; this is true whether the business is unionized or not. https://www.nlrb.gov/rights-we-protect/rights/nlrb-and-social-media. 1 2
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JUDICIAL NEWS By: Dave Yoder
TENNESSEANS FOR HISTORICAL JUSTICE Tennesseans for Historical Justice (THJ) is a 501(c)3 not-forprofit corporation. It results from legislation passed by the Tennessee Legislature and signed into law by Gov. Haslam.1 The mission of the THJ is to uncover the truth about racial violence in Tennessee in order to achieve justice, conciliation and healing across our state. THJ will investigate civil rights related crimes including lynchings, bombings, mob attacks and other acts of racial terrorism in our Tennessee history. THJ will document findings and make them available to the Legislature. THJ will also use these findings to educate Tennesseans and through education, work toward conciliation. As a former high school political science teacher and then as a lawyer in very rural Northern Michigan, urban and very diverse Northwest Indiana, and for the last 26 years in East Tennessee, I’ve learned how the history and experiences of all of our people have been grossly misrepresented. People of all races have been harmed by a whitewashing of American history. We need to know the true history of Japanese-American relocation during World War II and the incredible theft of assets that occurred. We need to know more about attacks on religion including on Jews, Catholics, Muslims and others. We certainly need to know the true experience of Native Americans. We tend to think of attacks on Latinos only in terms of today’s attacks including shootings and more. Little has been written about the murders of Latinos and violent attacks on their communities throughout our history.
order to grow and come together as a nation living our faith-based and politically based values. The failure to do so increases the risk of repeating our past exponentially. Current events demonstrate this propensity. If you are not now fearful, ask the person who is a part of a racial, religious or cultural minority about their feelings. Of course, they are more likely to be open if they trust you. The THJ volunteer Board of Directors consists of Jim Emison, lawyer and author John Ashworth, organizer and activists; Allan Ramsaur, attorney and former TBA Executive Director; Cynthia Dietle, attorney and former Special Agent with the FBI; Lucas Lee, formerly with The Associated Press, author and currently with Tennessee State University; and Dave Yoder attorney and former Legal Aid of East Tennessee Executive Director. The legislature created THJ, however they did not provide funding for the work that needs to be done. THJ must raise funds to hire at least a part time staff person and cover necessary operating funds to allow it to meet its mission. There will be an event at the Duncan School of Law at 8:30 a.m. until 12 noon on February 21st. Speakers will include Jim Emison and John Ashworth. Cynthia Dietle and Dave Yoder will also be available to answer questions. Donations will be appreciated. For more information please go to Tnhistoricaljustice.org. You are also welcome to contact Dave Yoder davidryoder45@gmail.com.
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e must learn our complete truth, identify with it and actively work as a community toward conciliation.”
Of all experiences, that of Black Americans is the most horrific, most institutionalized, and the most ongoing. Newspaper articles, photos and personal accounts tell the history of terrorism directed at Black Americans. I’ve learned of organized and often state sanctioned terror perpetuated across the South on Black citizens more horrible even than “mere” lynchings. I’ve learned of the murder of pregnant women, children, full neighborhoods, of mutilations and burnings of living victims, the handing out of severed fingers as souvenirs to white children brought by their parents to public lynchings and of unborn babies cut from the womb of mothers and stomped to death. We must learn our complete truth, identify with it and actively work as a community toward conciliation. While any attack on any individual is and should be viewed as un-American and abhorrent to any religious belief, those attacks based on circumstances of birth, are the most contrary to our American promise. There has been an effort by those outside of the South to paint white on black violence as only existing in the South and only for the South to atone for. Truth is that while there has not been institutionalized slavery elsewhere, there has been identical violence including murders, intimidation, economic and housing repression and state-supported attacks on Black Americans. There is abundant evidence of Northern economic benefit and its complicity in slavery in the South. It is critical to research and present a true picture of our history in
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TCA, Title III, 3-19-101.
January 2020
SCHOOLED IN ETHICS By: Judy M. Cornett
UT College of Law
“CLIENTS ARE NOT PROPERTY”: ETHICAL CONSIDERATIONS WHEN A LAWYER LEAVES THE FIRM On December 4, 2019, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Ethics Opinion 489, “Obligations Related to Notice When Lawyers Change Firms.” Because no specific Model Rule governs the ethical duties of departing lawyers and their firms, the opinion relies on three basic principles: 1. Clients choose their lawyers. 2. Lawyers must act in the best interest of their clients. 3. A lawyer’s right to practice cannot be restricted. Given these principles, the opinion traces the path of a lawyer who is leaving a firm. As an initial matter, the firm should have a policy in place delineating the steps the firm and the departing lawyer will take to fulfill their ethical duties of diligence (Rule 1.3) and communication to keep the client “reasonably informed about the status of the matter” (Rule 1.4). Such a policy is mandated by Model Rule 5.1 (identical to Tennessee Rule of Professional Conduct 5.1), which provides: “(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.” This policy may require departing lawyers to observe a specified notification period prior to departure. Such a notice period helps to ensure that the departing lawyer and the firm can cooperate to provide an orderly transition for all client matters. However, the notification period cannot “unreasonably delay the diligent representation of the client or unnecessarily interfere with a lawyer’s departure.” Because noncompetition agreements are unenforceable,1 the policy cannot contain a non-competition provision. Nor can the notice period be enforced if it restricts the lawyer’s right to practice. Model Rule 5.6 (identical to Tennessee Rule of Professional Conduct 5.6) provides: “A lawyer shall not participate in offering or making: (a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement . . .” Therefore, “lawyers cannot be held to a fixed notice period and required to work at a firm through the termination of that period,” and cannot be subject to a financial penalty that imposes “financial disincentives to a competitive departure.” Once a lawyer decides to leave a firm, the lawyer should contemporaneously inform both the firm and his or her clients. Although the Model Rules do not prohibit the lawyer from unilaterally notifying clients of the departure, ideally the firm and departing lawyer would jointly communicate with clients “with whom the departing lawyer has had significant contact.” If a joint communication cannot be agreed upon, the firm and the departing lawyer may notify clients separately, but must not make “false or misleading statements.” Nor may the firm “prohibit the departing lawyer from soliciting firm clients.” Either a joint or a unilateral communication must “giv[e] the clients the option of remaining with the firm, going with the departing attorney, or choosing another attorney.”
This all-important choice derives from the fact that “[c]lients are not property.” Thus, [l]aw firms and lawyers may not divide up clients when a law firm dissolves or a lawyer transitions to another firm.” While clients are making their decisions, the firm must not “assign new lawyers to a client’s matter, pre-departure, . . . absent client direction or exigent circumstances.” During the notification period, the firm must not deny the departing lawyer “access to adequate firm resources needed to competently represent the client.” If new matters or new clients come in to the departing lawyer during this period, the lawyer and the firm must decide whether to treat them as new clients (or matters) of the departing lawyer or of the firm. The opinion cautions that “[t]o avoid client confusion and disputes, the firm and departing lawyer should discuss and clarify how new client matters will be addressed at the time that the departing lawyer notifies the firm of the impending departure.” Once the lawyer has departed, the firm must make sure the lawyer’s email and voice mail contains appropriate messages about the lawyer’s departure, including “an alternative contact at the firm for inquiries.” Similarly, the firm should assign a “supervising lawyer” to “review the departed lawyer’s firm emails, voicemails, and paper mail in accordance with client directions and promptly forward communications to the departed lawyer for all clients continuing to be represented by that lawyer.” The departing lawyer also has ethical duties. With respect to clients remaining with the firm, the departing lawyer must “assist in the organization and updating of client files, . . . including docketing of deadlines, updating lawyers at the firm who will take over the file, . . . and cooperat[ing] reasonably in billing.” The lawyer must also return all firm property, such as “intellectual property, proprietary information, and hardware/phones/computers.” Both the departing lawyer and the firm have a duty to safeguard confidential client information from “inadvertent disclosure or misuse.” The lawyer should cooperate with the firm to delete or return “all electronic and paper client data,” including data on the lawyer’s “personal electronic devices.” However, the lawyer may retain the “names and contact information for clients for whom the departing lawyer worked while at the firm in order to determine conflicts of interests at the departing lawyer’s new firm and comply with other applicable ethical or legal requirements.” The opinion cites extensively to state cases and ethics opinions, and notes that only a few states, such as Florida and Virginia, have ethics rules that specifically address the departing lawyer situation. Because Tennessee does not have such a rule, it is very likely that the Tennessee Supreme Court would find the opinion persuasive. Law firms should review their policies to determine whether they address the issues that arise when a lawyer departs. And both law firms and departing lawyers should heed the ABA’s message that they should cooperate in order to serve their clients’ best interests, whether the clients stay or go.
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See Spiegel v. Thomas, Mann & Smith, P.C., 811 S.W.2d 528 (Tenn. 1991) (holding non-competition agreement unenforceable against departing lawyer).
If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. January 2020
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PA S S I N G B Y By: Julia Hale
Lewis, Thomason, King, Krieg & Waldrop
LET’S SKIP ON DOWN TO INSKIP GRILL Every month, I will be reviewing eateries and attractions that are off the beaten path. These are the hidden gems of East Tennessee. Inskip Grill is located just a couple minute drive north of Clinton Highway. It is easy to miss if you aren’t paying attention, but you’ll be glad you found this decadent diner once you walk in. I barely took one step into the front door before the gentleman working the grill turned around to welcome me to Inskip Grill. A waitress quickly followed up with, “Sit anywhere you like, honey, and I’ll be right there with a menu.” The menu, filled with everything from the standard bacon cheese burger to more eclectic options, did not disappoint. Each burger’s name is a reference to something or someone that is wholly Tennessee. From The Happy Holler (a burger topped with pimento cheese and bacon) to The Elvis (a burger topped with a caramelized banana, peanut butter, and bacon), there is sure to be a burger for everyone in your party. Not feeling up to a burger? The menu also includes melts and, on Saturdays and Sundays, the standard bunch selections. The individuals who suggested this establishment insisted that I must try one of their burgers. Still, with so many options that looked delicious, I had to ask the waitress for help deciding. Ultimately, I elected to go with her recommendation and order The Dolly, a sweet and sassy BBQ burger with cheese and grilled onions. Each burger is made to order. Because I sat at the bar, I had the opportunity to watch the grill master create my burger as well as the others that the other patrons ordered. This much was clear, each burger ordered is made with care and an impeccable attention to detail. Once plated, the grill master turned around and set my burger in front of me. I knew I made the
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right choice ordering The Dolly (but I can only imagine I would have felt the same way had I ordered anything else). My first bite packed a punch. The onions were grilled perfectly, served al dente but not so firm that it would leave one wondering if they were grilled at all. They offered a sweet flavor that played well with the sassiness of the BBQ sauce that was grilled into the burger. And the cheese! Don’t even get me started on the cheese. I quickly devoured The Dolly burger. A few minutes (and several napkins later) I noticed the dessert menu. The grill master asked, “Is there anything else I can help you with?” I immediately replied, “Yes! Can you tell me about the milkshakes on your menu?” He began to tell me about the desserts, but quickly deferred to a young gentleman on the other side of the restaurant, “I’m going to send Braden to tell you more about what we have.” Braden walked up and I asked him the same thing I asked my waitress since there were so many options to choose from, “What do you recommend?” He immediately replied, “The Blackberry Cobbler Milkshake.” His recommendation did not disappoint. I am still sipping on what is left of the decadent milkshake as I draft this article. I can’t hardly wait until I go back to order another, if they still have it as it was an off the menu option. Overall, the service was great. It was only surpassed by the delicious food, made by the grill master himself. I’d highly recommend going out of your way to try Inskip Grill, as it is surely worth the extra few minutes it takes to get to it. Thank you to Evan and Brad for suggesting this hidden gem of a diner. If you have a recommendation for where I should go for next month’s Passing By column, send me an e-mail at jhale@lewisthomason.com.
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January 2020
L E G A L U P DAT E By: Stephen Ross Johnson
Ritchie Dillard Davies & Johnson, P.C.
THE FUTURE IS NOW: LOSS OF PRIVACY AND GENETIC GENEALOGICAL DNA ANALYSIS
Gattaca is a 1997 science fiction film starring Ethan Hawke, Uma Thurman and Jude Law.1 The movie concerns the use of advancements in DNA technology sometime in the future to track people’s whereabouts, conduct genetic engineering, and to determine careers and social status. Ethan Hawke’s character, Vincent, was not genetically engineered for superiority. Given his inferior genes, he is slotted to work as a janitor. He cleans the office of Gattaca, a private space travel company, and dreams of being an astronaut. He befriends a genetically superior athlete, Jude Law’s character Jerome, who is disabled from a car accident. Using urine, skin, and hair samples collected daily from Jerome, Vincent masquerades as genetically superior to be accepted as an astronaut at Gattaca, but he must carefully plant Jerome’s DNA within Gattaca’s facilities and prevent any of his own hair or skin cells from being left behind. There are daily tests at Gattaca of trace DNA – such as even vacuuming up skin cells left on objects touched - to make sure only authorized people are at the facility. Much of the movie concerns Vincent’s efforts to evade detection. Good science fiction employs good science facts. That is true with Gattaca. Modern forensic DNA technology allows a profile to be obtained from less than 10 cells, and we all shed thousands of skin cells daily. Just touching or handling an object will likely result in you depositing more than enough skin cells for a DNA profile to be obtained. We are now in a world where genetically engineered designer babies could be possible. Governments are scrambling to regulate. While hopefully our society will not devolve into Gattaca, a significant amount of DNA science fiction from that 1997 film is now science fact. DNA technology has impacted the legal community in a substantial way the past twenty years, given it is a powerful scientific tool to determine identity in toxic tort cases, criminal investigations, paternity in family law matters, and can become an issue in estate litigation, just to name a few examples. Forensic DNA analysis has exposed how many of the so-called forensic sciences, like microscopic hair analysis, can be subjective and unreliable. Over 360 people in the United States have been exonerated from prison – to include death rows – who were innocent, despite all the procedural safeguards of our criminal justice systems. Innocence projects across the country – volunteer or non-profit lawyers, investigators, law students, and journalists - are responsible for the work that led to most of these DNA exonerations.2 DNA technology has made its way into the public’s awareness through these cases and popular culture, with true and fictional accounts of DNA technology solving crimes. And now several companies offer to assist you in mapping your family tree and locating long lost or even unknown relatives using genetic genealogy, where you voluntarily give up a DNA sample. There are any number of news accounts about long lost siblings finding each other, children locating biological parents, and even tracing back common ancestors with celebrities. Genetic genealogy is all the rage. Many of you either gave or got a genetic DNA kit as a gift over the holidays. But what do these companies do with your DNA profile? And the profiles of hundreds of thousands of others that are collected? What does the fine print say when you’re giving up a DNA sample? Can the company sell your DNA profile? Can it use your DNA profile for cloning or medical research? Will the company turn your DNA over to the government? What property rights due you have in your DNA? What if you’ve never given up your DNA but a close relative has, such as a parent, sibling, aunt or uncle, cousin, grandparent, or grandchild? The questions January 2020
are myriad, and the answers can be Gattaca-like. The U.S. Department of Justice recently issued an interim policy concerning genetic genealogical analysis, effective November 1, 2019, as a guide to law enforcement on the use of genetic genealogy information, such as that collected by the various family tree websites.3 “As genetic genealogy websites become more popular and individuals continue to voluntarily submit their DNA or enter their genetic profiles onto publicly available genetic genealogy sites, the more biological information there is to compare with DNA samples from crime scenes.”4 The process is not without controversy. Unlike traditional DNA analysis, statistical modeling is used with genetic genealogy, and there are privacy concerns with accessing DNA profiles on genealogy websites. Yet it can be a powerful tool to potentially solve crimes and correct wrongful convictions. The alleged Golden State Killer, Joseph James DeAngelo, was apprehended due to “DNA found at crime scenes that partially matched the DNA of a relative on the open-source genealogy website GEDmatch. Previous searches of law-enforcement DNA databases had turned up no matches.”5 Recently in Idaho, a wrongful conviction was exposed, and an innocent man set free, for a 1996 rape a murder when genetic genealogy was employed to find the real killer.6 Want to learn more? For sure attend the Knoxville Bar Association’s Law Practice Today Expo on April 2-3, 2020, where Katherine Cross, an experienced DNA analyst with Guardian Forensic Sciences, will present on genetic genealogy. And maybe rent Gattaca.
Gattaca (1997), Internet Movie Database, located at https://www.imdb.com/title/ tt0119177/ (last visited Dec. 11, 2019). 2 See Innocence Project, https://www.innocenceproject.org/exonerate/ (last visited Dec. 11, 2019) (listing 367 DNA exonerations to date nationally, including 21 DNA exonerations from death row); see also Tennessee Innocence Project, https://www. tninnocence.org/ (last visited Dec. 11, 2019) (listing 21 exonerations to date in Tennessee). 3 United States Department of Justice Interim Policy located at https://www.justice. gov/olp/page/file/1204386/download (last visited Dec. 11, 2019). 4 Department of Justice Announces Interim Policy on Emerging Method to Generate Leads for Unsolved Violent Crimes, Department of Justice, Office of Public Affairs, Sept. 24, 2019 (located at https://www.justice.gov/opa/pr/department-justice announces-interim-policy-emerging-method-generate-leads-unsolved-violent (last visited Dec. 11, 2019). 5 How a Genealogy Website Led to the Alleged Golden State Killer, Sarah Zang, The Atlantic, April 27, 2018 (located at https://www.theatlantic.com.sciencearchive/ 2018/04/golden-state-killer-east-area-rapist-dna-genealogy/559070/ (last visited Dec. 11, 2019). 6 In an Apparent First, Genetic Genealogy Aids a Wrongful Conviction Case, by Mia Armstrong, The Marshall Project, July 16, 2019 (located at https://www. themarshallproject.org/2019/07/16/in-an-apparent-first-genetic-genealogy-aids-a wrongful-conviction-case) (last visited Dec. 11, 2019). 1
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SUPREME COURT CONSIDERS CONSTITUTIONALITY OF CFPB STRUCTURE The news flowing out of Washington in recent months has focused almost exclusively on impeachment. However, the work of our federal government continues, including, of course, that of the U.S. Supreme Court. Indeed, one case the Court will hear this spring has serious implications for the separation of powers between the legislative and executive branches. The case, Seila Law LLC v. Consumer Financial Protection Bureau, likely will reverberate long after the House impeachment vote and expected Senate trial of President Donald Trump have faded into history.
Background & Structure of the CFPB In the wake of the financial crisis of the mid-to-late 2000s, the Democratic-led Congress passed, and President Barack Obama signed into law, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.1 Dodd-Frank, along with the Affordable Care Act, were the two signature legislative achievements of President Obama’s first two years in office (and, some might say, of his entire eight years). Despite threats during the 2016 election by then-candidate Trump to repeal Dodd-Frank,2 bipartisan reforms to the law in 2018 left it relatively intact.3 One of the key provisions of Dodd-Frank was the establishment of the Consumer Financial Protection Bureau (“CFPB”). The CFPB was the brainchild of then-Harvard Law School professor and now-Senator and Democratic presidential candidate Elizabeth Warren.4 It combined a number of pre-existing consumer protection laws, which previously had been overseen by several different agencies, under one regulatory umbrella.5 The purposes of the CFPB include regulating unfair, deceptive, or abusive acts or practices that affect consumers; enforcing existing consumer protection laws; educating consumers and taking their complaints; and researching consumers’ experiences with financial products and services.6 Congress purposefully set up the CFPB to operate with autonomy in order to shield it from political influence. For example, the CFPB is not funded through the Congressional appropriations process, but instead fulfils its budgetary needs by drawing from a pool of funds in the Federal Reserve System.7 Furthermore, the CFPB is led by a single Director, who is appointed by the president and confirmed by the Senate,8 but who also serves for a fixed five-year term and can only be removed “for cause” – that is, “for inefficiency, neglect of duty, or malfeasance in office.”9 It is this last provision that is central to the case currently pending before the Supreme Court.
Separation of Powers Concerns Article II of the U.S. Constitution vests all executive power in the president and makes clear that the president alone has the power to “take Care that the Laws be faithfully executed.”10 Of course, the president cannot undertake this by himself. For more than 200 years, it
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has been well-accepted that the executive power vested in the president includes the power to appoint, and to remove at-will, the officers who lead the departments charged with the day-to-day administrative work of the executive branch.11 Indeed, the Supreme Court recognized this presidential authority in an opinion authored by Chief Justice and former President William Howard Taft, who wrote that the Article II provisions set forth above “emphasize[] the necessity for including within the executive power as conferred the exclusive power of removal.”12 The Supreme Court has recognized an exception to the president’s at-will removal power for certain independent executive agencies. If a Congress has established an agency to exercise “mostly quasi-legislative and quasi-judicial powers, rather than purely executive powers,” then a for-cause removal restriction is permissible so the agency’s leadership can “‘maintain an attitude of independence’ from the President’s control.”13 It was under this theory that the Court upheld the requirement that Federal Trade Commissioners be removed only for cause,14 and even the propriety of the Independent Counsel Act.15 Indeed, it is common for agencies regulating our financial system to be led by commissioners or board members who are appointed by the president and confirmed by the Senate, but are removable only for cause.16 Some important distinctions between the CFPB Director and the leadership of these other independent agencies, however, have brought this case to the Supreme Court. First, other independent agencies like the FTC or the SEC are led by a multi-member commission or board, whereas the CFPB is led by a single individual.17 And second, the CFPB Director’s fixed term of five years ensures that he or she will serve across presidential administrations. In contrast, the President can at least appoint a chair of the commission or board leading the other independent agencies shortly after assuming office.18 That chair is then charged with overseeing the President’s policy objectives at the agency. Of course, these distinctions were made by Congress intentionally to keep “the civil regulation of consumer financial protection . . . one step removed from political winds and presidential will.”19 The question now before the Court is whether the structure established by Congress unlawfully impede on the President’s Article II powers. This restriction on presidential power has manifested itself already during the CFPB’s short history. The CFPB’s first director, Rich Cordray, was appointed by President Obama and confirmed by the Senate in 2013, so his term was fixed until 2018.20 Mr. Cordray spent much of 2017 continuing to pursue aggressively the same policy directives that the CFPB had during the Obama administration, much to the chagrin of President Trump and the Republican-controlled Congress.21 By way of contrast, President Trump replaced the chairs of several other independent agencies within a week of taking office in January 2017.22 Mr. Cordray resigned in late 2017 to make an (unsuccessful) run for governor of Ohio, and President Trump was able to appoint his replacement, Kathy Kraninger. Ms. Kraninger is now scheduled to serve until 2023, so circumstances may be reversed if the Democratic nominee prevails in 2020.23 It would certainly be ironic if President Elizabeth Warren, who originally conceived the CFPB, had a director in place for nearly three years of her first term who stood opposed to her goals for the agency.
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January 2020
COVER STORY By: Matthew R. Lyon LMU Duncan School of Law
The Decisions Below
One current Supreme Court Justice has already made his views clear on the matter. In a 73-page dissent to the PHH Corp. decision, then-D.C. Circuit Judge Brett Kavanaugh criticized independent agencies as “a headless fourth branch of government,” which “pose a significant threat to individual liberty and the constitutional system of separation of powers and checks and balances.”27 With regard to the CFPB’s structure, then-Judge Kavanaugh wrote that it violated the historical precedent of multi-person agency leadership, posed “a serious threat to individual liberty,” and dramatically diminished presidential authority.28 The strong language of now-Justice Kavanaugh might indicate that the entire concept of independent agencies, and the eightyfive years of precedent supporting them, are at stake in this case. The CFPB, now under the leadership of a Trump appointee, has declined to defend the constitutionality of its own structure in the Seila Law LLC case, although it does argue that the provisions regarding appointment and removal of its Director are severable from the rest of the Dodd-Frank.29 That is an important distinction; without it, every action taken by the CFPB since its inception could be invalidated.30 The Court has appointed a veteran Supreme Court advocate, former Solicitor General Paul Clement, to defend the constitutionality of the CFPB’s leadership structure.31 Oral argument is set for March 3, and the opinion will likely be one of the last that the Court releases this term.
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Pub. L. 111-203, 124 Stat. 1376 (July 21, 2010). Joseph Lawler, Seven Times Trump Has Pledged to Repeal Dodd-Frank, Washington Examiner (May 19, 2016), available at https://www.washingtonexaminer.com/ seven-times-trump-has-pledged-to-repeal-dodd-frank (quoting candidate Trump as calling Dodd-Frank a “disaster” “we have to get rid of” that “stifles banks”). 3 See Zachary Warmbrodt, House Sends Major Bank Bill to Trump, Capping Years of Effort, Politico (May 22, 2018), available at https://www.politico.com/story/2018/ 05/22/bank-deregulation-dodd-frank-603388 (quoting House Financial Services Committee Chairman Jeb Hensarling (R-TX) as stating: “I wish it did gut Dodd Frank. It didn’t.”). 4 Elizabeth Warren, Unsafe at any Rate, Democracy, No. 5 (Summer 2007), available at https://democracyjournal.org/magazine/5/unsafe-at-any-rate/. 5 PHH Corp. v. Consumer Fin. Protection Bureau, 881 F.3d 75, 80-81 (D.C. Cir. 2018) (en banc). 6 Id. at 81; see also https://www.consumerfinance.gov/about-us/the-bureau/. 7 PHH Corp., 881 F.3d at 81. 8 Id. (citing 12 U.S.C. §§ 5491(b)(1)-(2)). 9 Id. (citing 12 U.S.C. §§ 5491(c)(1)-(3)). 10 U.S. Const. art. II, §§ 1 & 3. 11 See PHH Corp., 881 F.3d at 168-69 (Kavanaugh, J., dissenting). 12 Id. at 169 (quoting Myers v. United States, 272 U.S. 52, 122 (1926)). 13 Consumer Fin. Protection Bureau v. Seila Law LLC, 923 F.3d 680, 683 (9th Cir. 2019), cert. granted Oct. 18, 2019 (quoting Humphrey’s Executor v. United States, 295 U.S. 602, 629 (1935)). 14 Humphrey’s Executor, 295 U.S. at 629. 15 Morrison v. Olson, 487 U.S. 54 (1988). 16 Examples other than the Federal Trade Commission (“FTC”) include the Federal Reserve Board of Governors (“the Fed”), the Securities and Exchange Commission (“SEC”), the Office of the Comptroller of the Currency (“OCC”), and the Commodity Futures Trading Commission (“CFTC”). 17 Seila Law LLC, 923 F.3d at 684. 18 PHH Corp., 881 F.3d at 168-69 (Kavanaugh, J., dissenting). 19 PHH Corp., 881 F.3d at 133. 20 Manu Raju, et al, Senate Deal Averts Nuclear Option, Politico (July 17, 2013), available at https://www.politico.com/story/2013/07/senate-nuclear-option 094259. 21 See, e.g., John Berlau, Why Hasn’t Trump Fired CFPB’s Richard Cordray?, Forbes (Aug. 10, 2017), available at https://www.forbes.com/sites/johnberlau/2017/08/10/ why-hasnt-trump-fired-cfpbs-cordray/#50f5990031d5. 22 PHH Corp., 881 F.3d at 165 (Kavanaugh, J., dissenting). 23 See PHH Corp., 881 F.3d at 190 (Kavanaugh, J., dissenting). 24 Seila Law LLC, 923 F.3d at 682. 25 That en banc decision by the D.C. Circuit came after a three-judge panel had held, 2-1, that the CFPB’s structure was unconstitutional. 26 Seila Law LLC, 923 F.3d at 684 (quoting Morrison, 487 U.S. at 691). 27 Id. 28 PHH Corp., 881 F.3d at 165 (Kavanaugh, J., dissenting). 29 See generally Brief for Respondent Supporting Vacatur, Seila Law LLC v. Consumer Fin. Protection Bureau, No. 19-7. Then-Judge Kavanaugh agreed with the severability argument in his PHH Corp. dissent. 881 F.3d at 199-200 (Kavanaugh, J., dissenting). 30 Adam Liptak, Supreme Court to Rule on Trump’s Power to Fire Head of Consumer Bureau, N.Y. Times (Oct. 18, 2019), available at https://www.nytimes.com/2019/10/ 18/us/politics/supreme-court-trump-consumer-bureau.html. 31 Amy Howe, Justices Tap Clement to Defend CFPB Structure, ScotusBlog (Oct. 24, 2019), available at https://www.scotusblog.com/2019/10/justices-tap-clement-to defend-cfpb-structure/. 1
Seila Law LLC, which provides debt relief services to its clients, was investigated by the CFPB. The law firm appealed the district court’s order that it comply with the CFPB’s civil investigative demand by, in part, challenging the CFPB’s structure as unconstitutional.24 While conceding that the law firm’s “argument [was] not without force,” the Ninth Circuit affirmed the district court and upheld the CFPB’s structure, relying in great part on PHH Corporation v. Consumer Financial Protection Bureau, a lengthy 2018 decision by the D.C. Circuit, sitting en banc.25 The CFPB Director’s singular nature and fixed five-year term simply do not create enough of a distinction with the Supreme Court’s earlier seperation-of-powers decisions, and do not “‘impede the President’s ability to perform his constitutional duty’ to ensure that the laws are faithfully executed.”26
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URBAN LEGENDS By: Sarah M. Booher OEB Law, PLLC
PROTECTING THE GROWTH AND CHARACTER OF FOUNTAIN CITY Fountain City was originally called “Grassy Valley” when it was settled in the late 1780s as a military supply depot for North Carolina and Tennessee Territorial militia. Captain John Adair’s fort later gained more widespread interest for its clear, freshwater fountain fed by First Creek. In the mid-1820s, John Sevier’s grandson, E.F. Sevier, established the Fountain Head Methodist Church and a campground nearby. The freshwater feature caused the area to later be called “Fountain Head,” a name which would endure until a post office was established in 1890. To avoid confusion with a middle Tennessee community of the same name, the settlement was renamed “Fountain City.” The town was booming. That same year, the railroad line was completed, which connected Fountain City to Knoxville with a terminus at Emory Place. At the same time, the heart-shaped Fountain City Lake, more affectionately known as the “duck pond,” was also constructed. In 1885, the campground land was sold to developers, and the next year the fifty-room Fountain Head Hotel was built overlooking the spring. The Holbrook Normal College, a private college for training teachers, opened adjacent to the Hotel in 1893. While it was ultimately unsuccessful, it did graduate Hassie Gresham, the first female principal in Tennessee. She led Central High School for nearly 40 years, overseeing a ten-fold increase in the student population in the very building where she received her Holbrook education. [Fast forward to 1917. While Fountain Citians were enjoying their little paradise, the City of Knoxville lobbied Governor Thomas Rye to pass the Private Acts of 1917, allowing Knoxville to annex 26 square miles of land that included Park City, Lonsdale, Mountain View, and Oakwood. It was Knoxville’s first big taste of growth.] By the early 1920s, Knoxville Power and Light Company owned all the local streetcar lines. It also oversaw Chilhowee Park and Fountain City Park, and it wanted to turn Fountain City Park into a residential neighborhood. Dr. H.E. Goetz, owner of the Goetz Sanitarium (in the former Fountain Head Hotel building), was livid. He obtained assurances when he bought the building that he would always have ingress and egress into the park, and such a subdivision would destroy that easement. More importantly, Fountain City would lose its park. Local attorney John W. Green took the case (Goetz v. Knoxville Railway and Light Company, Docket 19472) all the way to the Tennessee Supreme Court. On November 20, 1926, they issued their ruling: “the complainants, as successors in title to the hotel tract, may claim and enforce the easement. . . It passes by a deed of such person to his grantee and follows the land without any mention whatsoever.” After 8 more years of negotiation, the company deeded the property to the Fountain City Park Commission. To this day, the Park is still maintained by the Commission and the Lions Club, and it thankfully endures as one of Fountain City’s most popular landmarks.
residents occupying 6,500 acres, and it supported them all with its own water and sewer system, patrolman, library, fire department, garbage collection, and a Dogwood Trail to rival Sequoyah Hills’s new Trail. In fact, its water company was selling Knoxville Utilities Board its excess water after providing its own residents with 1 to 2 million gallons of water daily. Fountain City was valuable to Knoxville. Residents of Fountain City raged. Its unofficial law director, Ross Tillery Stuart, went to work. Fountain Citians opposed the annexation 10 to 1, but it was largely hopeless. At midnight on February 11, 1962, Fountain City was annexed, promised a new library, streetlight installation, and a one-year moratorium on city taxes. The community mourned, loudly. At 11:30 am, Attorney Stuart staged a surrender, presenting Mayor John Duncan with a symbolic sword. More than 350 mourners accompanied a horse-drawn hearse, complete with six pallbearers in coats and stovepipe hats. The coffin held a giant key to Fountain City, which was also presented to Mayor Duncan. The Central High School band played “Pomp and Circumstance,” and citizens carried signs that said, “Our pocketbooks will bleed” and “Died in 1962 – we lived in peace.” The efforts of concerned community members weren’t in vain, however. Farragut watched and learned from Fountain City, and eventually Knoxville cast its eyes in Farragut’s direction. Farragut incorporated in January 1980 to protect itself, but only after the City managed to acquire a quarter-mile strip along I-40 in late 1979. Legal battles ensued. Knoxville ultimately lost. Nearly a decade later, Lovell Road was the agreed-upon line in the sand, permitting Knoxville to take the property to the east and Farragut the property to the west. It is these very legal battles and their proponents that have helped retain the individual character of their respective communities while also enfolding them into the greater metropolitan area that is our Knoxville home. One final note: The next time you move your trash bin to the road for pickup, think happy thoughts of Fountain City. While it has many famous and accomplished sons and daughters, it was also home to George R. Dempster. Though a mayor of Knoxville at one point, he is more importantly known as an inventor who held over 75 patents. He revolutionized both private and public solid waste collection with his Dempster Dumpster invention!
Twenty years after the Park debacle was settled, the state legislature passed a law giving municipalities annexation power by ordinance. Knoxville immediately set its sights on Fountain City, for good reason. By this time, Fountain City was the largest unincorporated community in the United States. Fountain City boasted nearly 30,000
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Photos are from the Knoxville News-Sentinel
January 2020
THE NOBLEST PROFESSION By: Melissa B. Carrasco
Egerton, McAfee, Armistead & Davis, P.C.
IN THE ODDEST PLACES Most would agree that Thomas Lechford, Esq. had his share of professional difficulties. Early in his career, he was part of a legal team that represented a rather controversial client – one Mr. Prynne, a fellow attorney who was accused of libel.1 This particular attorney was rather opinionated. Mr. Prynne had opinions about a lot of things, such as stage plays, hunting, public festivals, the celebration of Christmas, bonfires, and maypoles. In general, his opinions were all rather negative, and Mr. Prynne was one of those people who thought everyone was keenly interested in what he had to say. In fact, Mr. Prynne was so convinced of the value of his own opinion that he wrote them down and self-published them in a booklet called Histriomastix.2 Being confident in one’s opinion, may be good. Being confident that everyone else wants to hear your opinion is usually where it all goes sideways. You see, Mr. Prynne forgot one of the most fundamental rules of writing: know your audience. Unfortunately for Mr. Prynne, society had not yet developed the blocking, un-friending, or other coping mechanisms we have evolved in the Twitter-sphere to protect ourselves from opinions we don’t want to hear. In Mr. Prynne’s day, you only had three choices: (1) put the booklet down; (2) have a dialogue about why you agreed or disagreed with the opinion; or (3) attack the writer. Come to think of it, maybe the choices haven’t changed that much, after all. Prynne lived in a world that didn’t believe in option #1. Somehow, reading between the lines of Histriomastix, certain, very influential people, recognized Prynne’s writing for what it truly was: “seditious, schismatical, and libelous books against the hierarchy of the Church.” After all, there is nothing so “seditious, schismatical, and libelous” as a bonfire. As Lechford would later write, Prynne’s real offense was that he had, “in plain terms, blamed the hierarchy, the innovations in religious worship, and the new superstitions” upon William Laud, then Archbishop of Canterbury and religious advisor to King Charles I.3 If the name sounds familiar to you, this is the same William Laud whose various “reforms,” as he would call them, to the Anglican Church are what drove the Puritans out of England. They also got Archbishop Laud executed many years later after a trial overseen by none other than Mr. Prynne, but that is a story for another column.4 At this point in time, Archbishop Laud had the power, and Mr. Prynne just had an opinion. So, Mr. Prynne and two other, equally opinionated men, were imprisoned in separate locations, sentenced to lose their ears in pillory,5 and pay a fine. Prynne was also branded on the cheeks with the letters “S.” “L.” for “Seditious Libeler.”6 Mr. Prynne wasn’t the only one who suffered. A clerk who wrote down a dictated petition from Mr. Prynne to the judges who would hear his case was sentenced to fourteen days in jail. Some friends who went to visit him in prison were imprisoned, fined, and forced to make public recantations of their relationship with Prynne.7 Holt and Tomlyns, the two other members of Mr. Prynne’s legal team, were so concerned about January 2020
the repercussions of their representation that they refused to sign his answer. We do not know exactly what happened to Thomas Lechford because all he wrote in his notebook was that he “suffered imprisonment and a kind of banishment.”8 In a letter, he mentions seeking refuge from “Georgius Ragotzki, Prince of Transylvania and Lord of Lower Hungary,” which is probably where I would go if I was concerned about an overly zealous Archbishop.9 Regardless, we do know that, about a year after Prynne’s trial, Thomas Lechford was one of 3,000 passengers who boarded a fleet of twenty ships bound for Boston, Massachusetts. It was 1638, and Thomas Lechford became the first practicing attorney in New England.10 Perhaps because of his prior experiences, Lechford maintained a certain air of humility. He described himself as follows: “I am no pleader by nature; oratory I have little, . . . and if I had never so expert a faculty that way, I should not now use it, . . . and as for the other part of pleading which consisteth in chirography,11 wherein I had some little skill, I do not desire to use any of that.”12 He was the first to propose that the General Court adopt certain regulations for civil actions and for making a record of judicial proceedings.13 That proposal was soundly rejected at the time, but it was later adopted, to the benefit of court reporters everywhere. After a couple of years, Lechford ventured out of the chirography, which he admitted was his strong suit, and took on his first jury trial. He worked hard to prepare for this case, but, “his zeal for his clients betrayed him into an indiscretion (to use no harsher term) which subjected him to the deserved censure of the court . . . .”14 That was the kind way of saying it. The censure actually reads as follows: Mr. Thomas Lechford, for going to the Jewry & pleading with them out of Court, is debarred from pleading any man’s cause hereafter, unless his owne, and admonished not to p’sume to meddle beyond what hee shalbee called to by the Courts.15 Thus, the first practicing attorney in New England also became the first disbarred attorney. Lechford promptly applied to the Court for a pardon, made a very sincere apology, and was reinstated to the practice of law.16 Our profession is rooted in nobility. “Esquire” is second from the last in the Order of Precedence, but nonetheless on the list of noble titles.17 But a title of nobility and being noble are two different things. Author Cassandra Clare wrote, “One finds nobility in the oddest places,”18 and that is the goal of this column. Thomas Lechford showed that nobility by defending a difficult client to his personal detriment, and learning from his mistakes when he made them, and together, we will find nobility in the oddest places of the legal profession.
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barrister bullets BARRISTER ELECTIONS RESULTS The Barristers Elections and Holiday Party were held on December 11, 2019 at the Bistro at the Bijou. Thank you to everyone who came and to our newly elected Officers, Allison Jackson, President; Amanda Tonkin, Vice President; Bryce Fitzgerald, Secretary/Treasurer; Meagan Collver and Courtney Read, Members at Large. MONTHLY MEETING Plan now to attend the first Barristers monthly meeting of 2020 on Wednesday, February 12, at 5:00 p.m. at the Bistro at the Bijou. Everyone is welcome. Get updates on the Barristers on Facebook at www. facebook.com/knoxvillebarristers. CLE The CLE Committee will be meeting in early 2020 to begin planning informative and entertaining CLEs for the upcoming year. Please feel free to submit any ideas you may have to Caitlyn Elam (CElam@LewisThomason.com) or Jared Garceau ( JGarceau@LewisThomason.com). LAW SCHOOL MENTOR The Law School Mentor Committee will be conducting mock interviews at LMU Duncan School of Law on January 20 through January 22, 2019, and at U.T. College of Law on January 23 through January 29, 2019. Each interview time slot is about 25 minutes. Please contact Katie O’Neal (koneal@boatlf.com) or Patrick O’Neal (patrick.oneal@ leitnerfirm.com) if you are interested in volunteering. MOCK TRIAL The KBA Mock Trial Competition will take place from February 21st through 23rd, 2020. A final schedule and volunteer information will be coming soon, but please contact Erica Green (egreen@kramer-rayson. com) or Jimmy Snodgrass (jimmy_snodgrass@tned.uscourts.gov) with any questions!
IN THE ODDEST PLACES
VETERANS LEGAL CLINIC The Veterans’ Legal Advice Clinic is a joint project of the Knoxville Barristers, the Young Lawyers Division of the Knoxville Bar Association (KBA), KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, Knox County Public Defender’s Community Law Office, the University of Tennessee College of Law, and the local VA office. This is a general advice and referral clinic which will require attorney volunteers for its operation, and it is anticipated to serve between 20 and 30 veterans in the community each month with a wide variety of legal issues, including family law, landlord/tenant, bankruptcy, criminal defense, consumer protection, contract disputes, child support, and personal injury, among other issues. We need volunteers for the next two clinics on January 8 and February 12 from 12:00 p.m. to 2:00 p.m. at the Knox County Public Defender’s Community Law Office at 1101 Liberty Street, Knoxville TN 37912. Register by clicking on January 8 or February 12 in the Event Calendar at www. knoxbar.org. VOLUNTEER BREAKFAST The Volunteer Breakfast Committee would like to thank all those volunteered and sponsored during 2019. Most especially, we would like to thank Paul Wehmeier for his years of service as a co-chair of the Committee. We look forward to serving the community in the coming year. The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. The Barristers Volunteer Breakfast Committee always need volunteers to serve food or sponsor. The cost is $150 for sponsoring, and we need 4-5 volunteers. If you are unable to fund the breakfast, the Barristers will subsidize the cost of the breakfast. We meet at 6:15 a.m. and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30 a.m. It’s a great way to serve the community! Please contact Matt Knable (knablelaw@ gmail.com) or Mitchell Panter (mpanter@LewisThomason.com) for more information.
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You can read all about Thomas Lechford from Thomas Lechford’s own perspective in the Notebook kept by Thomas Lechford, esq., Lawyer in Massachusetts Bay from June 27, 1638 to July 28, 1642, available at https://archive.org/details/notebookkeptbyth00lech/page/n4. 2 J. Hammond Trumbull, A Sketch of Thomas Lechford (1885) available at books.google.com. 3 Id. at xi-xii. 4 D. H. Pennington, William Laud, Archbishop of Canterbury, Encyclopedia Britannica, available at https://www.britannica.com/biography/William-Laud. 5 There is some debate as to what this means. Most to agree that the pillory was a vertical post with a horizontal beam at the top with holes where the subject’s head and hands would be placed. Then another horizontal beam would be fastened over top of the first to keep the subject’s head and hand or arms immobilized and the person stood or kneeled, exposed to the elements (and public ridicule) for however long the person was supposed to serve their punishment. See The Historical Society of Pennsylvania, A Quaint Colonial Custom: “Ears Cut Off & Nailed to the Pillory (Apr. 19, 2010), https://hsp.org/blogs/hidden-histories/a-quaint-colonial-custom-ears-cut-off-nailed-to-the-pillory (last visited Dec. 10, 2019). But, what happened to that person’s ears (if the sentence was to “lose their ears in pillory”) is up for debate. There are reports of people having an ear (still attached) nailed to the pillory for a period of time. There are reports that people had their ears cut off, and then the ears nailed to the pillory. There are reports of people having their ears slit as they were locked in the pillory. See id. for a collection of numerous reports about the use of this method of punishment. 6 Trumbull at xii. 7 Id. 8 Id. at xiii. 9 See Ltr. to Hugh Peters from Thomas Lechford, in Trumbull at xiii. 10 See Trumbull at xiii; see also Thomas Lechford 1590-1644, Duhaime Law Museum, http://www.duhaime.org/LawMuseum/LawArticle-596/Thomas-Lechford-1590-1644.aspx. 11 Chirography is the art or practice of drafting deeds or other legal instruments. See Legal Dictionary, Chirograph, https://legal-dictionary.thefreedictionary.com/Chirograph, last visited Dec. 11, 2019. 12 Trumbull at x. 13 Id. at xx. 14 Id. at xxi. 15 Order of the Quarter Court, in Trumbull at xxi. 16 Trumbull at xxi. 17 The Order of Precedence is a list of various titles associated with ladies and gentlemen of rank and status starting with the Duke of Edinburgh. See Debrett’s Precedence Amongst Gentlemen in England & Wales, http://www.debretts.com/forms-address/hierarchies/precedence-amongst-gentlemen-england-and-wales. 18 C. Clare, Clockword Prince (2011). 1
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January 2020
LEGAL MYTH BUSTERS By: David E. Long MGC Member
“PARTY IN INTEREST” AND DECLARATORY JUDGMENT On October 16, 2019, the Tennessee Supreme Court filed the opinion of Tennessee Farmers Mutual Ins. v. DeBruce.1 The Court addressed the issue of whether a claimant was entitled to participate in a declaratory judgment action brought by the insurance company against an insured to challenge coverage in a pending tort suit. The claimant had sued the insured defendant in a separate action, but the claimant did not have a judgment against the insured defendant. The Tennessee Supreme Court held the claimant was not a necessary party to the declaratory judgment action because claimant did not have a real interest in the coverage issues involved in a declaratory judgment action when the claimant did not have a judgment against the insured.2 The claimant (Wright) and the insured defendant (DeBruce) were in an automobile accident in 2012. In 2013, Wright sued DeBruce in Hamilton County Circuit Court. De Bruce was not served until 2014. He did not notify his insurance company of the lawsuit and steadily refused over the course of the litigation to cooperate with the insurance company in providing him a defense. As a result of his lack of cooperation, Tennessee Farmers filed a declaratory judgment action seeking dismissal of the duty to defendant and/or indemnify based on the lack of cooperation. The declaratory judgment action was filed in March 2015.3 DeBruce did not answer or otherwise plead in the declaratory judgment lawsuit, and the trial court granted a default judgment in favor of Tennessee Farmers. In March 2017, Wright filed a motion under Tenn. R. Civ. P. 60 to set aside the default judgment, arguing she was an indispensable party to the declaratory judgment action. The trial court denied her motion, ruling she was merely an incidental beneficiary of the contract between the insurance company and its insured. On appeal, the Tennessee Court of Appeals reversed the trial court, holding that the trial court did not have subject matter jurisdiction without Wright because she had a sufficiently direct interest in the outcome to make her a necessary party.4 The Court of Appeals relied on older case law to hold drivers are subject to mandatory insurance requirement, and as such, Wright had a sufficiently direct interest in the outcome of the declaratory judgment action.5
rights. The Court held “[declaratory relief will be granted only to parties who have a real interest in the litigation and when the case involves present rights that have accrued under presently existing facts.”9 The Court distinguished between intended beneficiaries of a contract, rather than incidental beneficiaries. The court held that a nonparty can become an intended beneficiary if the claimant has a judgment against the insured, and in those situations, can even file a direct suit against the insurance company. However, Tennessee is not a direct action state in standard tort situations. For example, a plaintiff cannot simply sue a defendant’s insurance company directly in an automobile accident situation where defendant commits, or is alleged to have committed, a tort against the plaintiff. Since neither the insurance contract nor Tennessee law creates such a direct beneficiary relationship. “On the other hand, a claimant whose interest has not been reduced to a judgment against an insured has a remote interest that has not accrued into a real interest in the insurance policy.”10 The decision regarding whether a nonparty should be joined in a declaratory judgment action depends on whether a justiciable controversy and standing has occurred. Since this is most often a factual issue as well, care should be taken to determine the nature of the relationship and whether any present right are affected. The “promise” of a “possible but not guaranteed right” is not enough to mandate joinder in a declaratory judgment action, but DeBruce also recognizes time and circumstance can change the analysis as well. No. E2017-02078-SC-R11-CV, 2019 Tenn. LEXIS 452* (Tenn., October 16, 2019.) Id., at *13. Id., at *4-*6. 4 Id., at *7. 5 See, Commercial Casualty Ins Co. v. Tri-State Transit Co. of Louisiana, 177 Tenn. 51, 146 S.W.2d 135 (Tenn. 1941). 6 Id. at 87-*8, quoting T.C. A. sec. 29-14-107(a) (2012). 7 Id., at *5 8 Id. at *9. 9 Id., at *9, quoting, Dobbs v. Guenther, 846 S.W.2d 270, 275 (Tenn. Ct. App. 1992). 10 Id., at *12. 1 2 3
In addressing the Declaratory Judgment Act, Justice Sharon Lee, writing for the Court, pointed out the Act states all persons shall be made parties if they have any claim or interest in the declaration, “… and no declaration shall prejudice the rights of persons not parties to the proceedings….”6 The Court further addressed the law’s requirement that parties be joined when the “their absence from the action could cause recurring litigation on the same subject ….”7 In other words if the controversy cannot be determined and all issues and rights concluded by those who are parties, you have to join in the party(ies) that would allow the trial court to conclude the matter. If not, the trial court does not have subject matter jurisdiction to decide the matter. Moreover, parties “remotely affected” do not have to be joined in a declaratory judgment action. 8 In determining the issue of who is an “interested party,” necessary to the declaratory judgment action, the Court discussed the language of T.C.A. sec. 29-14-107(a) (2012), quoted above. Essentially, a “necessary” party must have an interest that would be affected by the declaration AND no declaration shall prejudice those January 2020
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January 2020
OUTSIDE MY OFFICE WINDOW By: Robbie Pryor
Pryor, Priest & Harber robertpryorjr.blogspot.com
THE LOST HIGHWAY Though I’ve lived here all my life, I’m still surprised by things I learn about our city as I grow older. I grew up on the West side of town in the time between the metropolitan Knoxville of today and that time when downtown was a center of commerce. During that “in between” time, downtown Knoxville was, with the exception of professionals and courts, sparsely populated and frequently ignored. The urban sprawl in all directions and introduction of the shopping mall out west was the demise of the bustling downtown of my parent’s and grandparent’s childhood. For that period until the World’s Fair of 1982 (when I was nearing high school), downtown lost importance and vibrance. However, my father always worked downtown, as did most attorneys, and my grandmother worked at Miller’s on Henley Street in the 1970’s. So, I visited downtown more than most my age. Whenever I did, my parents would tell me stories about the Knoxville of their youth, and I was fascinated. I have always loved downtown Knoxville. I continue to seek the history of this town where I work and live. I buy Jack Neely books and love to look for any television program or magazine article where Knoxville’s history is a subject. I look for any time and place where my own family’s history might collide or coincide with the history I read about Knoxville. I recently became aware of one such collision. The porters at the Andrew Johnson Hotel helped Hank Williams back into his car, a long baby blue 1949 Cadillac convertible. They practically had to carry the great musician. It was New Year’s Eve, 1952. Charlie Carr, a freshman at Auburn, was driving Mr. Williams to Canton, Ohio for a New Year’s Day show. That day had been a long one, beginning in Birmingham. It included a long drive and an aborted flight from McGhee Tyson Airport because of the weather. Snow fell heavily. After getting to the Andrew Johnson, exhausted and in pain, the country music star, already taking a prescription pain killer and drinking alcohol, was treated by Dr. P.H. Cardwell, the house doctor for the Andrew Johnson Hotel. Dr. Cardwell went to the room and injected the superstar with B12 and morphine. The kid called the promoter in Ohio, who said that Hank would be in breach of their contract if he didn’t get there the following day. Hank’s final ride departed the Andrew Johnson on Gay Street at 10:45 p.m. Several hours later, in West Virginia, Charlie Carr realized that Hank Williams was dead. There are many theories as to when and where Hank Williams actually died, but there is no dispute that his last ride - the Lost Highway, if you will - began in Knoxville at the Andrew Johnson Hotel. It would also be where my grandfather’s life would end 16 years later. One of the great sadnesses of my life is that I have no memory of my grandfather, a prince of a man, who died in March of 1969. I’d been born 4 months earlier. My parents have always regaled me with stories of him coming by every day after work to see and hold me. I was his first grandson. When I walk through this town I often imagine my father, in his mid-twenties, running down the street on the day he got the call. He was practicing at what is now the Baker, O’Kane, Atkins & January 2020
Thompson firm when the call came. He ran out onto Market, crossed Cumberland, and out onto Main, finally turning left toward Gay Street and the Andrew Johnson Hotel where my grandfather had collapsed. My grandfather, James Asbury Pryor, was at the Hotel preparing to meet with bus company executives from across the country in preparation for labor talks. He was the President of Tennessee Trailways Bus Company. He collapsed with heart failure, and when my father arrived, was being tended to by Dr. Cardwell, the same physician who is believed to have treated Hank Williams. All efforts failed. My grandfather was 59 years old. He was buried on my parent’s fifth wedding anniversary. As with any child of the South, I’m anchored to place for more than one reason. For me, it includes sitting among the congregants of Neyland Stadium knowing I’ll be forgiven for praying to my savior on a third down and eight. It’s the fall sun rising over the mountains and reflecting off the gold panels of the Sunsphere, a monument that to some is a blight, to others a hallmark of deregulation and corruption, but to all who love this place, a symbol of home. It’s the taste of a Smoky Mountain Market chili dog and an Orange Crush for being a good boy on a trip to see my grandmother at the counter of Miller’s cosmetic department. Its bluegrass music at Buddy’s BBQ on a Friday night, Louis spaghetti for lunch with Frank Flynn, and Shriver’s on Gay Street for a trip to get my first suit. It’s a law office, Knox County Circuit Court, the Old Courthouse building, and motion day - those Fridays when all the lawyers, young and old, make their way to the revolving doors of the City/County Building, briefcase in hand. My mind can still get the best of me, too. I can walk outside and look across the street and swear I still see Harold’s Delicatessen and taste a Giant Twist made by the huge man behind the counter. It is my Knoxville, Tennessee, and it includes the street where I now live and work, the Andrew Johnson Hotel, Hank Williams, and the grandfather I never knew. On those rare nights when the snow falls quietly on Gay Street, I walk my dog and look for a blue Cadillac slowly heading north.
DICTA
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B I L L & P H I L’ S G A D G E T O F T H E M O N T H By: Bill Ramsey Neal & Harwell
By: Phil Hampton
Founder and CEO, LogicForce Consulting
KEEP YOUR HANDS TO YOURSELF GADGETS FOR COMPLYING WITH TENNESSEE’S NEW HANDS-FREE LAW On July 1 of this year, amendments to T.C.A. §55-8-199 went into effect. This law bans the use of hand-held cellphone use while driving. Specifically, the new law makes it illegal for a driver to (1) hold a cellphone or mobile device with any part of his or her body, (2) write, send, or read any text-based communication while driving, (3) reach for a cellphone or mobile device that requires the driver to no longer be seated or properly restrained by a seatbelt, (4) watch a movie or video on a cellphone or mobile device, or (5) record or broadcast video on a cellphone or mobile device. There are, however, exceptions (loopholes) to these rules. Since we really enjoy talking on the cellphone while driving, we have worked long and hard to identify gadgets and devices that can help us fit the loopholes in Tennessee’s hands-free law. We thought we would share them with you.
In any event, if you are lucky enough to have an automobile with connectivity built in, all you need is a way to mount your phone, connect it via Bluetooth, and you are set up to comply with the State’s new law and enjoy hands-free calling.
Old Car, New Car? In determining the hands-free options available to you, your main decision is to determine whether you have a new car or an old car. Unsurprisingly, new cars have more attractive options available than those in older cars, and we will discuss those options later. However, there is one decision you must make without reference to whether your car is new or old. That decision is where you place or mount the wireless device. T.C.A. §55-8-199(b)(2) allows you to use your hand to operate the device if you have the device mounted on your windshield, dashboard, or in the center console “in a manner that does not hinder the driver’s view of the road,” and you can activate or deactivate a feature with one swipe or tap of the device. For example, iOttie iTap ($25) makes a device that will mount to your dash or to your windshield, but it requires the application of an adhesive back to mount to the dashboard or windshield as well as a protective film that is placed on the phone. Nevertheless, it is a bargain at $25. Similarly, iOttie makes a nice mount (Magnetic 2 Air Vent Mount) that attaches to your air vent and only requires a protective film to be applied to your phone. It also costs $25. Additionally, iOttie makes another mount (iTap Magnetic 2 CD Slot Mount) that can be placed inside your automobile CD slot, and a suction cup attaches to your phone. Kenu makes similar products that are very effective and welldesigned and only cost $30. Finally, another option is a mobile phone holder that fits in your vehicle’s cup holder. WeatherTech makes a very nice one that costs $34.95. There are a wide variety of all these types of mounts available. We advise you to pick the one that is best for you and your car.
Even Older Cars For cars that are even older (most likely pre-2010), there are still plenty of options available. You can connect via the auxiliary input, if one is available, or through the CD or cassette tape slot in your car and use the hands-free device. Our favorite device for connecting through the car’s auxiliary input is the Mpow MBR2 Bluetooth Car Kit ($26.99 at Amazon) or the Besign BK01 Bluetooth Car Kit ($25 from Amazon). If you want something tiny and small, try the Tunai Firefly. It is tiny but you pay for it ($34.99). Our least favorite devices connect to the car’s FM transmitter (for those who do not have the 3.5 millimeter connector). We will not even discuss these because we do not think they are worth using. Our favorite device for using the CD or cassette tape slot in your car is the iTape Cassette Adapter ($30), which connects to your phone via Bluetooth and allows you to charge your phone at the same time. If you want something simpler, connect your phone to the Carwires MJ200C ($10) and plug the cassette into your cassette deck, place the car stereo on cassette, and your phone will work just fine through your car stereo. But, our favorite solution for the older cars is a car visor kit. These devices simply clip on your visor, and your phone connects to the device via Bluetooth. The speakers are loud and of high quality, and we think they work quite well. Our favorite visor-clipped device is the Avantree CK11 ($30) that has a very crisp and clear sound at a cheap price. It automatically turns on when you step into your car, it connects to your cigarette lighter for charging, and it has a single button you can push to access the voicecontrol features on your phone. The Motorola Roadster 2 is nice as well, but it costs much more ($150) and doesn’t work that much better. Similarly, the Jabra Drive works well, but costs $45, and, in our opinion, is not as clear as the Avantree. As a final solution, you can use your wired or wireless headphones, including Apple Airpods, Jabra headphones, and the Bluetooth devices that clip on your ears, such as the Plantronics Voyager 5200 ($85), or the BlueParrott C300-XT ($130). The later devices have longer battery life than devices like the Apple Airpods and are specifically designed for phone calls. For example, the BlueParrott device will last for a full day, but it is bulky. Any of the above solutions will allow you to comply with the state’s new law and with the admonition of the Georgia Satellites’ “Don’t hand me no lines and keep your hands to yourself.”
Old Car, New Car Revisited If you have an automobile that was manufactured after 2015, you may have the ability to use Apple Car Play (apple.com/ios/carplay) or Android Auto (androidauto.com/auto) (or both). Most all of the audio systems that use Apple Car Play or Android Auto all behave differently depending upon the manufacturer and make of the car. All solutions are great, but some are more elegant than others. Most will allow you to have a screen in your dash that looks a lot like your phone. In addition, the Car Connectivity Consortium, which includes several automakers and smartphone makers, has developed a standard that we believe will ultimately standardize on an application called MirrorLink. MirrorLink is already leading industry standard for car phone connectivity and is available on more cars’ makes and models than any other car connectivity solution.
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Not So New Cars For cars built in earlier years, you may only have the option to connect via Bluetooth or USB without all the bells and whistles of the Car Play or Android Auto solutions. Nevertheless, it is pretty simple just to connect via Bluetooth or USB. You will not get the display that Apple Car Play or Android Auto provide, but we are assuming you are tech savvy enough to connect to your car’s Bluetooth. If so, you will be in full compliance with the state’s new law once you properly mount your car phone.
DICTA
January 2020
WELL READ By: Regina Koho
Attorney, Tennessee Valley Authority, Office of the General Counsel1
LEAD YOURSELF FIRST:
INSPIRING LEADERSHIP THROUGH SOLITUDE Lead Yourself First: Inspiring Leadership Through Solitude is a book that I have been aware of, and interested in, for sometime. I had the opportunity to observe one of its authors, Judge Raymond M. Kethledge, while I was a law clerk on the U.S. Court of Appeals for the Sixth Circuit, and his quietly commanding presence on the bench made an impression on me. So when Beth Ford mentioned in a recent KBA Publications Committee meeting that Lead Yourself First was one of the books she hoped to have reviewed for this column, I decided there was no time like the present to see what Judge Kethledge and his co-author, Michael S. Erwin, had to say. 1
The primary premise of the book is simple: “To lead others, you must first lead yourself.” And according to Judge Kethledge and Erwin, solitude is the necessary ingredient for doing so. The book, in four parts, focuses on qualities necessary for effective leadership that solitude allows to flourish – clarity, creativity, emotional balance, and moral courage. Each is then illustrated by the experiences of leaders “who have used solitude to function more effectively.” Although the illustrative examples were, in my opinion, a bit heavy on the military perspective – which is probably not surprising given that Erwin graduated from West Point and served two tours in Afghanistan and one in Iraq – I nonetheless found them interesting. A few highlights include: •
Jane Goodall, whose time alone in the African wilderness allowed her to listen to her intuition, which told her that, in order to gain the trust of chimpanzees and thus learn about their behavior, it was necessary to approach them openly, rather than in stealth;
•
Dwight D. Eisenhower – a famous extrovert, but a regular seeker of solitude – utilizing time alone to obtain analytical clarity to determine when D-Day should occur;
•
Abraham Lincoln using an extended period of solitude to regain his emotional balance following General Meade’s devastating failure to stop General Lee’s weakened troops from crossing the Potomac River and escaping into Virginia (during this time, Lincoln wrote a letter chastising Meade for this failure, yet never sent it); and
•
Martin Luther King Jr., reflecting at his kitchen table after receiving a particular harrowing death threat late one night and finding the moral courage to continue fighting the evils of segregation despite the danger facing him and his family.
January 2020
Sandwiched between these historical examples were more current ones that helped conceptualize what productive and useful solitude might look like when incorporated into the reader’s own life. Perhaps it takes the form of trail running or some other sort of physical activity that takes the leader’s mind off the problem at hand. Perhaps it is taking a day off work to engage in mundane household tasks unburdened by the constant input from a phone or computer. Or perhaps it is simply sitting quietly (and alone) for a half hour each morning with a cup of coffee before the chaos of the day begins. Whatever the form, Judge Kethledge and Erwin stress that the modern-day leader must intentionally seek out solitude, and the book closes with tips for finding it and “us[ing] it productively.” One of the most interesting suggestions – and one that resonated with me – is to “reset expectations” as to assumptions about a leader’s constant availability. For example, they recommend that leaders intentionally mark off time on their calendars and clearly communicate that they will not be available during this timeframe. Another suggestion is to designate weekends as periods during which no work-related emails will be sent. The authors posit that this benefits not just the leader, but her subordinates, as it signals that they also have permission to unplug: “The leader who sets aside time for solitude . . . creates a virtuous loop, to the betterment of everyone’s work and the organization as a whole.” Although the focus of Lead Yourself First is on how solitude is necessary for leaders to be effective, I think the concepts and advice will resonate with attorneys of all levels. The legal profession demands the almost constant availability of practitioners, irrespective of where they are in the hierarchy of the firm or organization for which they work. And legal work can be mentally exhausting and requires attorneys to make strategic judgment calls that may not immediately reveal themselves, but may eventually come to light once one is disengaged from actually grappling with the issue. (I’m sure most of us have experienced that sudden, unexpected lightning bolt of clarity as to a particular problem we have been struggling with while doing something completely unrelated, such as taking a shower.) Given that the book is not too long (180 pages) and is easy to get through, I think it is worth your time. And who knows? Maybe it will give you the courage to put down the phone, step away from the computer, and embrace the solitude.
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DICTA
Any opinions expressed in this article are those of the author and are not attributable to the Tennessee Valley Authority.
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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
IMPEACH THIS! I hesitate to take up the subject of impeachment, not because it’s controversial, and not because Joe Jarrett gave a great overview of the process in last month’s DICTA. I hesitate because, by the time you read this, everything I write may be completely dated. As I tap my keyboard, the House Judiciary Committee is drafting Articles of Impeachment, which the entire House may adopt before Christmas. If that happens, a trial in the Senate will likely be imminent. And who knows what new witnesses may suddenly appear, perhaps bearing tax returns or stained dresses? But impeachment is too important to ignore, so I’ll touch upon a few issues that should be relevant regardless of where the process stands in January. First impeachment is not an unconstitutional “coup.” Just the opposite: Article I, Section 2 of the Constitution provides that “[t]he House of Representatives . . . shall have the sole Power of Impeachment.” Article I, Section 3, goes into more detail: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside; And no Person shall be convicted without the Concurrence of two thirds of the Members present. And then there’s the famous phrase in Article II, Section 4: “The President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Lawyers argue about the precise meaning of all of this verbiage (of course we do) but the process of impeachment is itself eminently constitutional. Calling it otherwise is simply wrong. We’ve impeached two presidents – three if you count Richard Nixon – and, no doubt we’ll do it again. As lawyers, we have an ethical duty to promote knowledge of, and respect for, the rule of law,1 and we should emphasize to those who ask us that impeachment is part of the constitutional system of checks and balances that defines our republic. Now, as to whether the way the House is proceeding is somehow unconstitutional, that’s a different question. Many supporters of the president complain that procedures adopted by the House Committees on Intelligence and the Judiciary have unconstitutionally denied the president due process. That dog won’t hunt, either. First, Congress has virtually unlimited power to determine its own procedures. Article I, Section 5 provides that: “Each House may determine the Rules of its Proceedings. . . .” More specifically, as noted above, Article I gives the House “the sole Power of Impeachment,” and the Senate “the sole Power to try all Impeachments.” Such power means that Congress gets to do pretty much as it pleases in impeachment proceedings. The Supreme Court emphasized this point in Nixon v. United States.2 No, not that Nixon – Walter Nixon, a federal judge who refused to resign even after being convicted of a felony and imprisoned.
(Sometimes I imagine him in his cell, still wearing his robes, but I digress). Nixon was impeached and removed from office after a trial before a select Senate committee. He sued for a declaratory judgment reinstating his appointment, arguing that the word “try” in Article I, Section 3 required a trial before the whole Senate. In a unanimous decision, the Court rejected his case as a nonjusticiable political question, holding that impeachment trial procedures were within the sole power of the Senate, and concluding that “the word ‘try’ in the Impeachment Trial Clause does not provide an identifiable textual limit on the authority which is committed to the Senate.”3 So, to paraphrase Richard Nixon, if the Congress follows a given procedure in an impeachment, that means the procedure is constitutional. Okay, but is it fair? That’s not a constitutional question. Fairness is for members of Congress to decide, and for their constituents to decide, as well. If you want to weigh in on Trump’s impeachment, you should exercise your First Amendment right to petition and write your representatives a letter. But if you do, keep a few things in mind. First, an impeachment is like an indictment – it’s just an accusation. Defendants don’t get to participate in a prosecutor’s decision on whether to prosecute. Arguably, the House need not include Republicans in the process at all. But it has: Both Democrats and Republicans have participated, every step of the way, despite claims to the contrary. Remember when some Republicans stormed the secure hearing room in the basement of the Capitol? Several were members of the relevant committees. They could have walked right in. And anyone who claims that Republicans have been silenced hasn’t seen (or heard) Rep. Jim Jordan of Ohio. Second, Democrats have invited the president to participate in the hearings, and have sought the testimony of many of his senior aides. The president has refused. He has blocked his most senior aides from testifying. He may have some arguments about executive privilege in some cases, but simply issuing a blanket refusal to tell his side of the story undercuts any argument that he and his supporters have been excluded. Third, the president may soon have the opportunity to fully and fairly defend himself. His party controls the Senate, and the Senate, like the House, makes its own rules. It will be interesting to see what kind of defense Trump puts up. He won’t be able to complain about procedure any more. He’ll have to address the substance of the allegations against him, which are serious. Will he send his senior aides to testify? Under oath? We’ll see. In the meantime, let’s respect the process. It’s right there in the Constitution, after all.
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2 3
Paragraph 7 of the Preamble to Rule 8 of the Tennessee Rules of Professional Conduct provides that: “[A] lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. Available at http://www.tsc.state.tn.us/rules/supremecourt/8. 506 U.S. 224 (1993). 506 U.S. at 238.
Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. 26
DICTA
January 2020
LONG WINDED By: Jason H. Long London Amburn
TOM HAGEN – LAWYER PROFILE It’s the end of the year. For me, that means two things are about to occur with absolute certainty. First, I have to get all of my billable hours in. Billing time is the bane of existence for many attorneys in private practice. For me, the most depressing part of the billable hour requirement is that it provides a rough summary of my life in sixminute increments. I don’t know why anyone would choose to read my timesheets, but if they did, they would read like a sad journal of discovery production, lonely travel excursions, and monotonous depositions. Don’t get me wrong. I love being a lawyer and, aside from tracking my time, I think it is a rewarding and exciting profession. It just doesn’t translate that well to paper. The second inevitability of this time of year is that I will, at some point, be watching a Godfather movie marathon. Some network is sure to show all of the Godfather movies back-toback during the holidays, and I will get sucked in to dedicating five hours of my life to watching movies I have seen a hundred times. Please note that when I refer to the Godfather movies, I only mean the Godfather and the Godfather Part II. I refuse to acknowledge that the third movie was ever made. As I was pondering what lay in store for me over the next few days, I wondered if Tom Hagen, consigliere to Vito and Michael Corleone, was burdened with keeping timesheets for the work he did as lawyer for the family. I like to think he did and that those timesheets could provide a pretty good summary of the Godfather movies. Warning: spoilers ahead, although if you have not seen these movies by now, you are a lost cause. Without further ado, the timesheets of attorney Tom Hagen: June 12, 1945 - Conference with Vito and Enzo, the baker, re: vengeance upon men who abused Enzo’s daughter. (0.4). Arrange for thugs to make perpetrators “suffer.” (0.3). Conference with Vito and Johnny Fontane re: negotiations for Fontane to obtain role in upcoming Woltz movie. (0.3). Obtain tissues for Fontane after Vito slaps him for not “acting like a man.” (0.1). Conference with Vito and Luca Brasi re: hoping that Connie and Carlo’s first child is a “masculine child.” (0.2). Make note to steer clear of Luca Brasi whenever possible. (0.1). June 14, 1945 - Conference with Jack Woltz in California re: movie role for Johnny Fontane. (0.8). Sever the head of Woltz’s horse and put it in Woltz’s bed while he is sleeping. (5.2) (In all honesty, I have no idea how long this would take but, after five hours, I feel like Hagan would start to question why he went to law school and give up). Finalize contract for Johnny Fontane to appear in Jack Woltz movie. (1.2). June 16, 1945 - Conference with Vito and Sonny regarding proposed drug distribution deal with Virgil “the Turk” Sollozzo. (0.5). Research attorney-client privilege exceptions in the event Sonny tells someone outside the family what he is thinking. (0.8). December 20, 1945 - Conference with the Turk to discuss failed assassination attempt of Vito Corleone. (0.3). Receive offer from the Turk to negotiate the peace with Sonny. (0.2). December 22, 1945 - Conference with Sonny, Michael, Sal Tessio, and Peter Clemenza re: advising Sonny the difference between January 2020
what is personal and what is business. (0.3). Develop strategy to implicate Captain McCluskey in the New York drug trade. (0.6). July 5, 1947 - Research whether acceptance of letter from Kay creates a presumption as to knowledge of the whereabouts of Michael. (1.1). August 8, 1947 - Draft prenuptial agreement for Michael to marry Apollonia. (2.6). September 9, 1947 - Probate estate of Apollonia. (2.8). June 9, 1948 - Conference with the “Five Families” to develop strategy for allowing other families to “wet their beak.” (0.9). Research phrase “wet their beak.” (0.6). Conference with Vito concerning treachery of Don Barzini. (0.2). August 2, 1953 - Prepare prenuptial agreement for Michael to marry Kay. (0.5). Scrub references to Apollonia from form being used. (0.7). Research whether prenuptial agreement can prohibit Kay from ever asking Michael about his business. (1.6). April 6, 1955 - Prepare agreements for the purchase of casino from Moe Green. (12.8) (Write off time – Michael has put Carlo, a street hood with no legal education, in charge of this multi-million-dollar deal.). Research whether Carlo is engaging in the unauthorized practice of law. (0.7). May 7, 1955 Conference with Tessio to explain that I can’t get him off the hook “for old time’s sake.” (0.2). Deliver message from Tessio to Michael explaining that it was not personal, he always liked him. (0.2). January 2, 1959 - Arrange for dead prostitute to be placed in the bed of Senator Geary. (2.4) (again a total estimate but I’m guessing it takes much less time to kill a person and sneak them into a room than it does to cut off a horse’s head.). Conference with Senator Geary to extricate him from brothel with dead prostitute and impress upon him “the favor” Michael Corleone has done for him. (0.7). March 5, 1959 - Appearance before congressional subcommittee to demand apology for slanderous accusations made against Michael. (7.3). Conference with the brother of Frankie “Five Angels” Pentangeli to make appearance before congressional subcommittee. (1.2). March 20, 1959 - Conference with Frankie “Five Angels” in federal prison to convince him to commit suicide after failed attempt to act as witness against Michael. (0.6) (On a side note, this is Tom’s best piece of advocacy in the whole movie. He convinces Frankie to kill himself without ever mentioning suicide, just by discussing failed plots against Roman emperors, and he does it all while at a maximum- security federal penitentiary. That is next level lawyering.). August 19, 1959 - Review status of Hyman Roth extradition efforts. (1.4). Ultimately settle on developing kamikaze-type murder attempt on Roth. (0.3). Convince Rocco to sacrifice himself to get to Roth. (0.5). October 15, 1959 - Probate last will and testament of Fredo. (1.8). And that, in a nutshell, is the Godfather saga. Happy New Year.
DICTA
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BARRISTER BITES By: Angelia M. Nystrom, JD, LLM University of Tennessee Institute of Agriculture
DEATH, TAXES, AND CHRISTMAS BREAKFAST They say that the only two things in life that are certain are death and taxes. I disagree. I would add Christmas morning in the Nystrom house to that list. Christmas is a magical time, and there is no time more special in our house than Christmas morning. When Trace was a baby, we invited my mom, Hugh’s mom, and my Aunt Doris and Uncle Rodger (who have been surrogate grandparents to Trace) to spend Christmas morning with us to see what Santa had brought to Trace. I like to feed people, so I also found a fool-proof breakfast set-up and menu that was easy and a crowd-pleaser. Family: check. Set table: check. Food: check. All those thing combine to make a special holiday morning. One Christmas morning when Trace was around three, I recall that he bounded down the stairs into the kitchen and exclaimed, “Santa came. He brought plates!” Indeed, the Christmas breakfast has become almost as important as the gifts from Santa.
To assuage my guilt over the high-fat and high-sugar breakfast, we always have clementines available. Sometimes, they are eaten… but usually they are not. I also try to have an assortment of juices, chocolate milk and coffee and accoutrements. I’m a coffee fan, and I am obsessed with the sugar-free peppermint mocha by Coffee Mate that only seems to be available during the holiday season. If you go to Kroger to find it, chances are I have already purchased all of it. (I bought all 8 of their bottles of it last Sunday).
The menu is always the same: breakfast casserole, pumpkin muffins, smoked gouda cheese grits, clementines, juice and coffee. I once suggested to Trace that we should “change it up” and do French toast. You would have thought I told him that there is no such thing as Santa Claus. Needless to say, we did not change our menu. The “Sausage, Egg and Cheese Casserole” is the star of the Christmas breakfast, and it is one of the easiest dishes that I make. (Bonus: you can assemble it the night before and bake it on Christmas morning). To prepare the casserole, line a Pyrex dish with rolled out Crescent dinner roll dough. (I prefer reduced fat dough, as it is less greasy). Brown an entire roll of hot sausage, drain, and spread over the top of the dough. Whisk eight eggs and ¼ cup of milk together and pour over the sausage. Top with shredded Colby Jack and Sharp Cheddar Cheese. Bake at 350 until the dough is brown and the cheese is melted and browning on top. If you happen to have leftovers, it is just as good re-heated the next day. Another family favorite are Pumpkin and Raisin Muffins. To prepare, beat 6 egg whites (I use the ones from a carton) with 3 cups of sugar. Add 1 cup applesauce, 1/3 cup of water and one 16 oz. can of pumpkin. Mix well. Add 3 ½ cups of all-purpose flour, 2 tsp. baking soda, 1 ½ tsp. salt, 1 TBS cinnamon, 1 TBS all-spice, and 4 cups of raisins. Mix well and add to pan for baking. Bake at 350 until muffins are cooked thoroughly and tops are dry. I bake the muffins in pans that look like rosettes. (They make lots of edges.) However, the muffins are equally good in regular muffin pans or mini loaf pans. They are always baked on Christmas Eve and are a favorite treat for Santa.
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We also enjoy Smoked Gouda Cheese Grits on Christmas morning. (My recipe is a Paula Deen recipe. It is not a bit healthy, but it is really good.) To prepare, preheat oven to 350 degrees. Grease a casserole dish with butter and set aside. Bring 6 cups chicken broth, 1 tsp salt, 1 tsp pepper, and 1 tsp garlic powder to a boil. Stir in 2 cups regular grits and whisk until completely combined. Reduce heat to low and simmer until the grits are thick (8-10 minutes). Add 16 oz smoked Gouda cheese (cubed), ½ cup milk, and stir. Gradually stir in 4 large eggs, beaten, and ½ cup unsalted butter, stirring until all are combined. Pour the mixture in the casserole dish. Bake for 35 to 40 minutes or until set. As with the casserole, this dish can be prepared the night before and baked on Christmas morning.
This meal is always a favorite and has been our tradition since the year Trace was born. When Trace was two, Hugh’s mom passed away. This year, we lost both my Aunt Doris and my Uncle Rodger. In a letter that he placed in Uncle Rodger’s coffin, Trace stated that Christmas morning with all of the people he loves the most has always been his favorite day of the year. He stated that Christmas mornings will never be the same. He was right. It won’t be the same. Knowing how hard this year has been on him, I asked if he wanted to change it up a little bit (after all, at 14, he has been known to sleep until noon). His response caught me a little off guard, but I should not have been surprised. “It will be different, but I like our traditions. Our breakfast meal makes me think of happy times. I don’t want to change a thing.” I hope your holidays are filled with fun and family. And if you need something easy for breakfast, I hope you will try some of our family favorites.
DICTA
January 2020
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.
KALA SALARY SURVEY AVAILABLE The Knoxville Chapter of the Association of Legal Administrators (KALA) conducts a survey each year that includes general salary information and fringe benefits. If you would like to purchase a copy of the survey, please contact Charlotte Welch at cwelch@opw.com. The cost of the survey is $150.00.
MORROW NAMED PARTNER Kramer Rayson LLP is proud to announce that Brandon L. Morrow has been named a partner in the firm. Brandon represents businesses, educational institutions, and colleges and universities in employment, constitutional and civil rights matters. A former legislative aide to a four-term U.S. Senator, he holds a bachelor’s in political science from the University of Tennessee and a juris doctorate from the University of Tennessee College of Law.
OFFICE SPACE AVAILABLE: •
West Knoxville-Bearden Office Space - West Knoxville lawyer has office space for rent at 4008 Sutherland Avenue. The rent includes internet, ample parking and common area maintenance. Inquiries: leslieahull@gmail.com.
•
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.
RACE AGAINST RACISM Join the YWCA’s 25th Annual Race Against Racism and Diversity Day activities for the entire family on January 18 at the Phyllis Wheatley Center at 124 S. Cruz Street beginning at 11:00. There is a certified 5k course route, a 1-mile walk, and a race for children. Diversity will be celebrated in partnership with local organizations. Come for breakfast treats, entertainment, inspirational speeches, and more. https://runsignup.com/Race/TN/Knoxville/ YWCAKnoxvilleRaceAgainstRacism.
Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records: Adam Duggan BPR #: 035121 Breeding Henry Baysan, PC 900 S. Gay Street, Suite 1950 Knoxville, TN 37902-1823 Ph: (865) 670-8535 aduggan@bhblegal.com Jane Kaufman Jones BPR #: 027341 Shuttleworth PLLC 800 S. Gay St., Suite 2031 Knoxville, TN 37929-9743 Ph: (865) 622-7118 jjones@swlawpllc.com
January 2020
Cooper Nathaniel Gallimore BPR #: 034834 PerfectServe, Inc. 2160 Lakeside Centre Way, Suite 301 Knoxville, TN 37922-0201 Ph: (865) 212-6261 cgallimore@perfectserve.net Christopher D. Heagerty BPR #: 016728 Market Street Law, PLLC 625 Market St., 7th Floor Knoxville, TN 37902-2212 Ph: (865) 437-5081 christopher.heagerty@gmail.com
Louis W. Ringger III BPR #: 033674 Greg Coleman Law PC 800 S. Gay Street, Suite 1100 Knoxville, TN 37929-9726 Ph: (865) 247-0080 louis@gregcolemanlaw.com
Keith D. Stewart BPR #: 017574 Market Street Law, PLLC 625 Market St., 7th Floor Knoxville, TN 37902-2212 Ph: (865) 437-5081 keithdstewart@gmail.com
John Tyler Roper BPR #: 021927 Market Street Law, PLLC 625 Market St., 7th Floor Knoxville, TN 37902-2212 Ph: (865) 437-5081 tyler@marketstreetlawyer.com
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Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System
PRO BONO SPOTLIGHT By: Kathryn Ellis
Want to Volunteer?
Pro Bono Director Legal Aid of East Tennessee
Fill out our new Pro Bono Volunteer Survey: https://www.surveymonkey.com/r/DCTWYFSt
THANK YOU FOR ALL YOU DO FOR LEGAL AID OF EAST TENNESSEE! Alan Lee Alex Winston Allen Schwartz Allison Easterday Allison Starnes-Anglea Amanda Busby Amelia Crotwell Amy Hess Amy McLaughlin Andrea Johnson Andrew Roskind Andy Fox Andy Sneed Angela Lowe Angie Snyder Ann Barker Ashley Bentley Ashley Roberts Barbara Johnson Bart Williams Ben Koyl Benet Theiss Betsy Meadows Bill Coley Bill Mynatt Bill Routh Blair Kennedy Brad Sagraves Brenda Brooks Brent Snyder Brett Mayes Brittany Nestor Brooke Givens Buck Lewis Caitlin Elledge Carl McDonald Carolyn Gilliam
Cecilia Peterson Chad Tindell Channing Miller Charles Harrison Charles Torres Charmaine Nichols Cheryl Rice Christy Murray Constance Herinkova Corbin Payne Craig Holloway Courtney Walker Cynthia Lawson Dan Holbrook Dan Scott Daniel Ellis Dave Yoder David Byrd David Eldridge David Gall David Noel David Rexrode David Roberts Deno Cole Devin DeVore Diane Hicks Donald Farinato Douglas Dunn Dudley Taylor Dustin Crouse Ed Anderson Edward Schultz Edwin Shoemaker Eliza Scott Elizabeth Perryman Emma Drozdowski Webb Eric Foust
Eric Lutton F. Scott Milligan Felicia Coalson Frank Handler G. Turner Howard Gary Vowell Garry Chin Garry Ferraris Glenna Overton Walker Gregory Logue Heather Anderson Heather Banks Hilary Burgin Hillary Dewhirst Ian Hennessey J. Patrick Henry Jack Bowers Jackson Fenner James A.H. Bell James Fogelsong James Moore James Parker Jane Kaufman Jones Jarrod Blue Jason Collver Jenae Easterly Jennifer Morton Jennifer White Jerrold Becker Jessica Jernigan-Johnson Jim McIntosh Jim Moore Jim Snyder Joanie Stewart John Cauley John Dreiser John Eldridge
John Rice John Rosson Jon Johnson Josh Hedrick Julia Spannaus Katelyn Jones Katherine Young Katie Tolliver Jones Keith Alley Keith Burroughs Keith Stewart Kelly Frere Ken Miller Kevin Dean Kevin Newton Kevin Tonkin Kimberly Cambron Kyle Ray Lajuana Atkins Laura Wyrick Lauren Smith Lisa Bailey Lisa Collins Werner Lisa Hall Lynn Tarpy Mabern Wall Martin Ellis Martin McDonald Mary Miller Matthew Grossman Matthew Hall Matthew Vande Brake Matt Frere Maurice Guinn Meagan Collver Megan Newman Meghan Bodie
Meghan Morgan Michael Davis Michael Franz Michael King Michael Tabler Mike Hickman Nathan Rowell Newman Bankston Nicole Price Patrick Dunn Patrick McKenrick Patrick Noel Patrick Woodside Paul Drozdowski Paul Forsyth Peggy Comstock Peter Alliman Ray Pinkstaff Richard Duncan Richard Matlock Richard Rice Richard Scrugham, Jr. Richards Brabham Robert Marquis Robert Weismueller Robin McNabb Rockforde King Roger Hyman Roy Aaron Sam Rutherford Samantha Parris Samantha McCammon Samuel Louderback Sarah Malia Sarah Miracle Scott Griswold Scott Hahn
Scott Lanzon Sharon Clark Sharon Potter Shelley Breeding Spencer Fair Stacie Miller Stephanie Coleman Stephen Byrd Stephen McSween Steve Erdely Steve Merritt Steve Williams Stewart Crane Stirling Walsh Susan Harmon Tasha Blakney Ted Kern Tegan Couch Terrill Adkins Tim Grandchamp Thomas Leveille Tom Dickenson Troy Weson Wade Boswell Wes Pendergrass Whitney Trujillo Will Brewer William Gill William Mynatt William Pearson William Petty William Terrell Wynne Caffey Zach Burroughs
In addition to our wonderful Pro Bono attorneys, the following students, paralegals, and others have donated their time to help LAET’s Pro Bono Project: Aaron Duffey Alissa Netto Andrew West Anna McClure Arvis Blakley Ashley Hamilton Aubrey Maples Betty Coley Brad Wood Brandon Allen Brittany Eads Bronte Ward Carolyn Snyder Catherine Fezell Chantel Matikke Chapman Evans Charlie Collins Chelsea Waters Christina Spear
Christine Flareau Clint Wren Cody Haley Daniel Briere Danielle Peach Dave Hall Elton Hutton Emile Horton Emily Cala Erin Hall Grace Purgason Gregg Rader Halle Mann Hannah Haley Hannah-Claire Boggess Heather Lopez Jacquelyn Joosse James Miller
Jason Trautwein Jesse Small Jon Fromke Julia Slagle Kaitlyn Sell Kasey Akrom Kate Sands Kayla Moran Kristen Anderson Kristin Bastion Kyla Barraza Laura Reagan Leslie Rowland Lindsey English Lindsey English Hull Luke Erwin Mackenzie Hobbs Malinda Lewis Mary Hendershott
Mason Shelton Miranda Stoltz Paige Wiencke Rachel Washburn Rebecca McNabb Rebecca Spicer Regan Sherrell Ryan Shannon Ryan Sherrell Samantha Clark Samiah Patton Sean Roberts Tami Schack Tucker Beard Tyler Sims Zack Peterson
Mark Your Calendars: * January 4 (9:00-12:00) – Knoxville Saturday Bar at LAET’s Knoxville Office * January 8 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s Community Law Office * January 18 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County Office
And, because it is inevitable that I have missed someone, thank you everyone else who has supported Legal Aid of East Tennessee and, more importantly, our clients throughout 2019 with your service at clinics and by accepting Pro Bono cases. We truly could not do it without you!
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
January 2020
Q:
THE LAST WORD By: Jack H. (Nick) McCall Buddy, would you share with DICTA’s readers what your family’s travels in Iceland were like?
A:
REUBEN N. (BUDDY) PELOT IV, EGERTON, MCAFEE, ARMISTEAD & DAVIS, P.C.
Absolutely. Imagine if Yellowstone were an island, but bigger and less crowded, and the bison were sheep, the deer were reindeer, the ravens were swans, and the wolves were whales. That’s Iceland. Our youngest daughter picked Iceland for her senior trip after graduating from Bearden. She wanted to see the Northern Lights, but the only time we could all go was around July 4. The sun barely sets in Iceland then, so no Northern Lights, but a lot more daylight for exploring! We arrived June 27 in Keflavik and rented an 8-passenger van for me, my wife, our three daughters, and two sons-in-law. The van had a 6-speed manual transmission with a worn out clutch. I mention this because we traveled the entire Ring Road of Iceland over the course of ten days. Although the Ring Road is Iceland’s major highway, it’s only two-lanes, think Northshore, with lots of one lane bridges and even one-lane tunnels, some as long as 7 kms. The iffy clutch made it that much more interesting. First stop: Reykjavik, the largest city in Iceland with almost two-thirds of the country’s population, yet still about 60,000 less than just the City of Knoxville. We only spent a few hours in Reykjavik. We ate at the wharf, walked downtown, and visited the iconic Hallgrimskirkja Church with its basalt-inspired architecture and statue of Leif Erikson, the first European to set foot on continental North America. On our way to our first Airbnb in Hella about 1.5 hours southeast, we stopped to hike up a ridge dotted with bubbling sulfur springs in the Reykjadalur Valley to the “Hot River” where we stripped down to our bathing suits and soaked in the 100 degree river (large creek) while sheep walked past on either side. We dried off and had some excellent pizza at Olverk in Hveragerdi before heading to Hella. June 28, we drove the Golden Circle - a popular daytrip drive close to Reykjavik. We started with a short hike around Kerid Crater, a former volcano with a small crater lake. Next: the Geysers at Haukadalur, a geothermal area with two popular geysers Stokkur and Geysir. There must be very few lawyers in Iceland. Not much in the way of warnings or safeguards around spouting geysers or steep hikes around waterfalls and canyons. You could stand within feet of Strokkur as it spouted steam over a hundred feet in the air. Then off to Gullfoss, one of the most impressive waterfalls in Iceland, and then Thingvellir National Park where the Eurasian and North American tectonic plates meet. Thingviller was the location for the “All Things” general assembly held annually from 930 to 1262 A.D. where laws and judgments were proclaimed from the Law Rock. (For G.OT. fans -- filming location for the Bloody Gate and other scenes.) June 29, we drove east along southern Iceland from Hella to Vik and back, stopping at Seljafoss Waterfall, Black Sand Beach, and Dyrholaey Promontory and Arch, with a short hike to stand on the base of Solheimajokull glacier, followed by 500+ stairstep climb to the top of Skogafoss waterfall, and finally a photo op in front of the grass-roofed cowsheds of Drangurinn in Drangshlid, said to be home to elves. June 30, we drove east again to stay on a farm located west of Hofn below the Vatnajokull glacier. We took an impromptu drive through a sea of purple and white Lupine flowers to Hjorleifshofdi, a vast black sand beach and
the “Yoda Cave” -- looking out from inside, the opening is in the exact shape of Yoda. We then hiked to Svartifoss Waterfall and its basalt columns, and then visited Svinafellsjokull glacier before stopping at Jokulsarlon, a/k/a Glacier Lagoon, where icebergs are making their way to the ocean or Diamond Beach where we watched seals and took pics on large hunks of ice scattered on the black sand. Then dinner at Jon Riki restaurant on a family farm miles from anywhere at the base of two glaciers. July 1, we drove east along the southern coast to the eastern fjords until we arrived at our next house in Eskifjordur, a scenic and small trading post town nestled in the fjord. The drive was eye-popping with the glaciers in the distance, numerous waterfalls and swans, and even a whale. July 2, we drove to the port town of Seydisfordur, quaintly snuggled between snow-capped ridges at the end of the steep and winding road from the longboarding scene in The Secret Life of Walter Mitty. After food and a hike to the Tvisongur sound sculpture, we went to Borgarfjordur Eystri to see a puffin colony up close. Leaving, we were lucky enough to watch a small herd of reindeer wandering up over the pass. July 3, we drove north from Eskifjordur to Akureyri. On the way, we explored Studlagil Canyon framed on both sides by tall, vertical basalt columns. Driving north, the landscape changed from lush green to Mars-like. We stopped at Namafjall Geothermal Area. More bubbling, steaming sulfur vents and pools. Again, nothing more than thin ropes keeping the populace from the boiling sulfur. We capped the day at the Myvatn Nature Baths for a soak in a large 100 degree geothermal pool overlooking Lake Myvatn. July 4, we celebrated our independence with a whale watching excursion in Husavik at the 66th parallel just 21 miles from the Arctic Circle. After bundling up, we rode the zodiac boat around a huge rock island with an enormous puffin colony and chased down a half dozen whales and some dolphin. July 5, we drove north from Akureyri to the small fishing town of Siglufjordur, enjoying fresh fish and chips and another beautiful drive. A combination of the Pacific Coast Highway in the Big Sur and Loveland Pass in Colorado. The highlight of the trip? On our last night, our oldest daughter lined us up on the back porch for a family photo. Just before we thought the timer on her camera was about to go off, she said, “Smile! We are going to have a baby!” A great way to end an epic trip -- learning we are about to be grandparents! July 6 was a beautiful drive from Akureyri back to Keflavik with stops to hike to a volcano rim and eat in another fishing village. Amazingly, the van made it all the way around the island nation. If you are looking to get away from the crowds, Iceland is it. Though outnumbered by sheep, the people of Iceland were great. While they spoke Icelandic amongst themselves, they spoke English to us. We never had a bad meal. Lots of lamb and seafood, and no taxes and no tips are accepted or expected in Iceland. Although we spent most of our time in sparsely populated places, we almost always had cell service (and Google Maps). Next time – northern lights.
“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 January 2020
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KNOXVILLE, TN PERMIT NO. 3 0 9
AROUND THE BAR
AWARD WINNERS AND NEW BAR LEADERS ANNOUNCED AT KBA ANNUAL MEETING KBA President Wynne Caffey-Knight presided over the Annual Meeting of the Knoxville Bar Association on Friday, December 13, 2019. More than 275 lawyers and judges were in attendance. Mrs. CaffeyKnight announced that the following KBA members were elected as officers for 2020: Cheryl G. Rice – President-Elect, Jason H. Long – Treasurer, and Loretta G. Cravens - Secretary. The membership elected the following KBA members to the four open positions on the Board of Governors: Hon. Kristi Davis, Mark A. Castleberry, Michael J. Stanuszek and Elizabeth M. Towe. Hanson R. Tipton assumed the presidency of the 1900-plus member Knoxville Bar Association at the close of the meeting. Thomas S. Scott, Jr. was presented the KBA’s highest award, the prestigious Governors’ Award, which is given annually to a lawyer whose peers believe has brought distinction and honor to the legal profession. Mr. Scott has distinguished himself with a long and tremendous career of service to the bar and to the community, including serving as KBA president in 1990. Mr. Scott is a worthy recipient of the Knoxville Bar Association’s Governors’ Award for his enduring, faithful, and distinguished service to the community.
The Presidents’ Awards for 2019 were presented to Courtney Epps Read and Emily Stulce for their work as Co-Chairs of the Functions Committee. The award for outstanding writing was presented to Luke Ihnen for his feature on the Butcher Banks which appeared in the November issue of the KBA monthly magazine DICTA. Retired Magistrate Judge C. Clifford Shirley Jr. was presented with the Don Paine Lawyer Legacy Award and the Judicial Excellence Award was presented to U.S. District Court Judge Pamela L. Reeves. Allison Jackson was introduced as President of the Knoxville Barristers, the Young Lawyers Division of the KBA, and it was announced that Jason Collver and Meagan Collver, Co-Chairs of the Hunger & Poverty Relief Committee, were presented with the Barristers’ Presidents’ Award for 2019.