DICTA. January 2022

Practice Tips: Be Wary of Naming Co-Fiduciaries . . . Page 7 Management Counsel: Law Office 101: Dry January: Alcohol Use Awareness . . . Page 13

A Monthly Publication of the Knoxville Bar Association | January 2022

NULLIFICATION PROCLAMATION: A HOUSE DIVIDED

Photo Ops

Knoxville Barristers Holiday Party and Elections

On December 8, the Barristers gathered for their annual party and elections at the Firefly, the outdoor patio of the Hilton Downtown Knoxville.

Join us in congratulating the Barristers’ newly-elected Officers: President - Meagan Collver Vice President – Zachary R. Walden Secretary/Treasurer - Charles S.J. Sharrett Members-at-Large - Jordan Houser and Christine Knott It was also announced that Charles Sharrett and James Snodgrass, Co-Chairs of the Hunger & Poverty Relief Committee, were presented with the Barristers’ Presidents’ Award for 2021.

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January 2022

In This Issue

Officers of the Knoxville Bar Association

January 2022

COVER STORY 16

Nullification Proclamation: A House Divided

CRITICAL FOCUS President Jason H. Long

President Elect Loretta G. Cravens

Treasurer Catherine E. Shuck

Secretary Carlos A. Yunsan

Immediate Past President Cheryl G. Rice

Daniel L. Ellis Magistrate Robin Gunn William A. Mynatt Jr. Vanessa Samano

Michael J. Stanuszek Amanda Tonkin Elizabeth Towe Zachary Walden

A Time to Celebrate

Be Wary of Naming Co-Fiduciaries

Dry January: Alcohol Use Awareness

Qui Tam! A Circuit Split! Sixth Circuit Holds That Former Employees Are Protected By The False Claims Act

Do You Need An Interpreter?

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The Knoxville Bar Association Staff

President’s Message

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KBA Board of Governors Ursula Bailey Mark A. Castleberry Meagan Collver Jonathan D. Cooper

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Practice Tips

Management Counsel Legal Update

Schooled in Ethics

WISDOM 6

Because I Can’t Forget

Charles Swanson: Showing Us What It Looks Like When We Get It Right

Think Again: The Power of Knowing What You Don’t Know, by Adam Grant

Your Reputation

Savannah McCabe

Unfinished Business

Raised on Sugar

Otto Wood, the Terror of Tennessee, North Carolina, Virginia, etc.

Make Your Holidays Festive Without The Fuss

Samsung Galaxy Book Pro 360

Fulfilling our Oaths

Do Yourself A Favor: Don’t Read This

A Personal Connection

9 10 Marsha S. Watson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Jonathan Guess Chandler Fletcher Database Administrator Programs & Communications Coordinator

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

Jeanie Matthews LRIS Assistant

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

All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment).

Exceptions to this policy must be cleared

by KBA Executive Director Marsha Watson (522-6522).

DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members.

January 2022

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Volume 50, Issue 1

Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Cathy Shuck Executive Editor Campbell Cox Executive Editor Melissa B. Carrasco Brandon Allen Sarah Booher Anita D’Souza Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho

Matthew R. Lyon Angelia Morie Nystrom Katheryn Murray Ogle Laura Reagan Ann C. Short Eddy Smith Grant Williamson

What I Learned About Inclusion and Why It Matters

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Attorney Profile Well Read

Lessons Learned: Reflections from a Retiring Lawyer Hello My Name Is Better

Outside My Office Window Of Local Lore & Lawyers Barrister Bites

Bill & Phil Gadgets

Your Monthly Constitutional Mitchell’s Malarkey Tell Me A Story

COMMON GROUND 4 20 20 28 28 30

Section Notices/Event Calendar Barrister Bullets Welcome New Members Change of Addresses Bench & Bar in the News Pro Bono Project

Managing Editor Marsha Watson

KBA Executive Director

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SECTION NOTICES & EVENT CALENDAR

Section Notices

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

Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. If you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777).

Bankruptcy Law Section The Bankruptcy Section plans CLE programs and helps coordinate volunteers for the Pro Bono Debt Relief Clinics. 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. Join the Corporate Counsel & Government Lawyers Sections for the extended CLE program “Government Contracting 101” scheduled for March 4. 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) or David Headrick (599-0148).

Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. If you have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (931-260-5866).

Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you have a program topic or speaker suggestions, please contact the Employment Law Section 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 have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) or Jimmy Wright (637-3531).

Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. If you are interested in getting involved, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040).

Government & Public Service Lawyers Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. Join the Government Lawyers & Corporate Counsel Sections for the extended CLE program “Government Contracting 101” scheduled for March 4. For more information, 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 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 and any member licensed since 2020 will automatically be opted-in to the section. The 2022 Welcome Reception for the KBA’s New Lawyers Section will be on Tuesday, January 25th from 5:30-7:00 p.m. at Barrelhouse by Gipsy Circus Cider (621 Lamar Street). Please plan to arrive by 5:30 p.m.

You will have an opportunity to connect with other attorneys who are new to the legal field and facing similar experiences in their first three years of practice. 2022 KBA Barristers President Meagan Collver has generously agreed to speak at the start of the evening. We hope you will join us for a drink thanks to the generosity of Heath Trentham with Northwestern Mutual. If you would like to get involved next year, please contact Section Chairs Sanjay Raman (607-972-6140) or Courteney Barnes-Anderson (803-341-0196).

Senior Section The KBA Senior Section plans to start meeting again in 2022 for lunch. If you have suggestions for speakers, please contact Chair Wayne Kline at (292-2307).

Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chair Tim Grandchamp (524-1873).

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January 4 11 11 12 12 13 19 25 25 27 27

Law Office Tech Committee Professionalism Committee Access to Justice Committee Diversity in the Profession Committee Barristers Planning Meeting Judicial Committee Board of Governors CLE Committee Meeting New Lawyers Section Welcome Reception Business Insurance Law Update Webinar Bar Leaders Event

February 1 8 9 9 9 10

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Law Office Tech Committee Professionalism Committee Veterans Legal Advice Clinic Diversity in the Profession Committee Barristers Meeting Probate and Estate Planning: Legislative Update and Other Interest Items Webinar Judicial Committee Reimaging Public Safety Webinar Board of Governors Trial Skills CLE

Check the KBA Events Calendar at www.knoxbar.org for scheduling updates.

January 2022

PRESIDENT’S MESSAGE By: Jason H. Long London Amburn

A TIME TO CELEBRATE Before I dive in to my first President’s Column, I want to take an opportunity to thank everyone for this very special honor and the trust you have placed in me. As I remarked at the Annual Meeting, the Knoxville Bar Association (KBA) is a special place for me, and I trust it is for others as well. It is where I grew up professionally and where I maintain my closest friendships. It is the place where I learned to be a lawyer. It is a place where I know I can trust others around me and where practicing law means something more than simply providing a service and cashing a retainer. The KBA, and the lawyers who populate it, know there is a higher obligation associated with a law license. There is an obligation to our community and to one another to practice in a manner consistent with the highest standards of professionalism, expertise, and ethics. The KBA exemplifies a commitment to these obligations, and our community is better for it. I don’t always agree with the words or actions of the other members of this bar, but I never doubt they come from a place of sincerity. All of that being said, I hope to represent the bar well this year and continue its tradition of excellence. Thank you.

Like all voluntary bar associations, the KBA is always faced with the challenge of proving its relevancy and justifying its existence. If members do not believe the organization has a meaningful purpose or is providing value to its members, it is in danger of losing those members and its viability. Indeed, over the past 20 years, many voluntary bars around the country, including the American Bar Association, have faced a crisis of membership. In many ways, this crisis has been a direct outgrowth of the explosion of technological resources available to the legal profession.

As more products have flooded the market in an attempt to make the lives of lawyers easier, and as we have gone through waves of expansion and retraction in the legal markets resulting from alternative delivery of legal services, many attorneys have simply decided they do not need the support of an organized bar or have determined the cost is not worth the reward. Generational changes are also a source of declining membership, as large numbers of attorneys entering the workforce today simply don’t see the need or feel the obligation to join a bar association. Whatever the reason, membership numbers have dropped, or at least slowed, in voluntary bar associations almost everywhere.

I say “almost,” because the KBA is a refreshing outlier. Your bar association remains strong and sees a steady increase in membership year after year. I attribute that partially to an experienced and dedicated Executive Director who, along with her talented staff, is always looking for opportunities to engage our members and provide service and value.

I also attribute it to the general attitude of lawyers in Knoxville that the bar is at the heartbeat of the legal profession, providing a community January 2022

that is important and worth maintaining and strengthening. I assume that is because the lawyers in this community who came before made it a priority of instilling in the next generations the notion that to be a part of a profession is to be a part of the collective. Triumphs are sweeter when we celebrate them together and losses hurt less when we have one another to shoulder the pain. In short, the whole is greater than the sum of its parts.

The KBA is proof that this idiom is correct. From the Law Tech Expo to the Barristers’ Mock Trial Competition, from Coats for the Cold to the work and advocacy of our Professionalism Committee, from our celebration of the judiciary to our catalog of quality CLE presentations, each year the resume of the Knoxville Bar Association touts accomplishments that we simply could not achieve individually. I could write volumes on each project the KBA undertakes in a given year, but I don’t believe the President’s Column is supposed to run that long.

Suffice to say, we have an extraordinary list of achievements, and trust me when I say that you will hear about every last one of them during the course of this year.

We have struggled, endured, and, thanks to the leadership and dedication of our Executive Director and members, thrived during the last two years of a pandemic which no one saw coming and for which only the most prophetic could have been prepared. At times, it has felt like it has been a battle. While we haven’t yet defeated the virus, I believe we can claim victory in knowing that the KBA is not going to be slowed or deterred by its effects. We continue to grow, innovate, and improve, even as new variants come on the scene.

While our bar may not ever return to what it was in the fall of 2019, that is not a bad thing. As my high school history teacher constantly reminded us, “necessity is the mother of invention.” Out of necessity, we have invented a stronger, more durable, and more flexible bar. We are ready to declare victory over the pandemic.

As with any great military endeavor, once victory is declared, it is time to celebrate. I hope everyone will join us in this year of celebration: celebrating our history, our future, our strength, our innovation, our diversity, our excellence, and, most importantly, our friendships. It is time that we enjoy and appreciate the fruits of our labor while still endeavoring to produce more. We need to celebrate, if for no other reason than to remind ourselves why this bar is a special place and why we should work to keep it so. In celebrating, we can appreciate what we are capable of and inspire ourselves and others to be bold and ambitious for the future.

I look forward to this year and hope each and every member of the bar will celebrate with us.

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W H AT I L E A R N E D A B O U T I N C LU S I O N A N D W H Y I T M AT T E R S By: David H. Dupree

Law Office of David Dupree

BECAUSE I CAN’T FORGET It was an ordinary Tuesday. I had been to court, so I was in my normal professional attire. After court, I went to my noonday men’s Bible study, a relatively diverse group of men evenly split between Black and White. Afterwards, I decided to stop in Food City across the street. As I approached the entrance, an elderly white lady was just leaving the store. As we got close enough to pass each other, she shuffled as quickly as she could to the edge of the sidewalk, moved her purse from her side, and clutched it closely to her chest. My suit and tie did not matter. The relationships I’ve forged with my brothers of a different color did not matter. And I knew better than to as much as speak to the lady or look at her directly-things I learned in the 1960s as a kid. Still, none of that mattered. All she saw was a Black man who posed a potential threat.

Why do I relate this story? Because I can’t forget. It is not just a story to me; unfortunately, it is my life and the life of many other persons of color. On the one hand, there is this great group of men meeting weekly, leaving predilections at the door, and committed to becoming better. On the other hand, there is the clear reminder of the stain that taints this country and continues to daily rear its ugly head.

As stated in an article from the ABA, “Racial and ethnic diversity in the legal profession is necessary to demonstrate that our laws are being made and administered for the benefit of all persons.” The concept of diversity encompasses all persons of every background, gender, race, sexual orientation, age, and/or disability.1 The ABA further defines diversity as “the term used to describe the set of policies, practices, and programs that change the rhetoric of inclusion into empirically measurable change.”2 Diversity is just the right thing to do even in a county where the Black

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population is less than 10%.

To quote an excerpt from the 1978 Bakke decision, “Reality rebukes us that race has too often been used by those who would stigmatize and oppress minorities. Yet we cannot—and, as we shall demonstrate, need not … let color blindness become myopia which masks the reality that many ‘created equal’ have been treated within our lifetimes as inferior both by the law and by their fellow citizens.”3 Here we are more than 40 years later, and this quote is just as relevant now as it was then. Are there strides? Back-to-back female mayors in Knoxville, and an African-American female Juvenile Court magistrate could be considered strides. Then there are other scenarios that give pause, such as the current attempt to denigrate the Knoxville 6th District voting block through redistricting. Theoretically, that should not mean anything, but it may effectively mean that the one city council position that has been dominated by a black representative for those 40+ years will no longer be.

The event at Food City happened about 10 years ago. However, the indelible imprint it left on my mind remains. Other incidents since then (as recent as a month ago) continue to underscore the need for equality, diversity, and conversations on critical race theory that are postulated by many as “not my problem,” or the ever present “just get over it” syndrome. I would gladly get over it if not for the constant reminders that it “ain’t” over.

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Diversity in Law: Who Cares, ABA, April 30, 2016.

Id. Regents of University of California v. Bakke, 438 U.S. 265, 327, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978).

January 2022

PRACTICE TIPS By: Carolyn Levy Gilliam McDonald, Levy & Taylor, PLLC

BE WARY OF NAMING CO-FIDUCIARIES If you’re an attorney who practices in estate planning, I’m sure you’ve come across this issue in practice. Clients commonly struggle to nominate just one party to serve as an agent on a power of attorney or as an Executrix on a Last Will and Testament. Initially, the discussion always begins with the idea, “I don’t want to hurt my son or daughter’s feelings.”

The solution, according to our clients, is to appoint co-fiduciaries to serve jointly and alleviate this problem. The plan is that the siblings, parents, family friends, will all serve happily ever after as co-fiduciaries.

But what happens when these co-fiduciaries disagree or deadlock on a decision? Does one party have more power than the other?

Do they play rock, paper, scissors, and decide amicably? The answer to these questions is, probably not.

The appointment of co-fiduciaries is generally silent on any tie-breaking provisions in the event of a deadlock or disagreement. A simple disagreement under these arrangements can result in complex legal issues that must be resolved, often by unassociated attorneys and quite possibly by a judge.

Why unassociated attorneys? Because the original attorney will likely be required to withdraw due to a conflict of interest once their co-clients are no longer aligned. Problems also arise when assumptions are made that one co-fiduciary is performing tasks under their authority, which may not be the case in reality. Additionally, without very clear guidance and communication amongst the co-appointees, tasks and other requirements may be missed under the assumption from both parties that the other is taking care of the responsibilities.

Fiduciaries may be granted a vast amount of power and decision-making ability. As with all business decisions, there’s more than one avenue to achieve success. Fiduciaries may approach the administration of their responsibilities differently. Decisions may be mixed among parties, and none of those decisions would necessarily rise to a level indicating breach of a duty owed to the principal. Furthermore, many financial institutions are now refusing to name co-fiduciaries on an account.

On the other side of the argument, there are also valid reasons to appoint two fiduciaries. The siblings can divide and conquer the difficult and normally time consuming affairs of the decedent or principal.

Additionally, an extra set of eyes may be beneficial, especially if a fiduciary is serving their own interests or worse. Finally, an extra mind to explore options and help make the difficult decisions can’t hurt, right? First, please note that if a potential fiduciary has issues with making decisions, this might also be a good time to step back and reconsider vesting this individual with such authority. With regard to an extra set of eyes, you January 2022

can always require said fiduciary to provide an accounting to all the beneficiaries so there are many sets of eyes on the money, but without multiple signatures on a check. Accountings can help discover issues before they become disastrous and can stop the illusion of something disastrous when really all is being handled appropriately. For my clients who do not want to upset or cause friction among family members, I remind those clients that this is their good faith attempt to align their goals and create an easy path for their loved ones through legal documents while they have the capacity, means, and reasoning to do so. Often times, when issues between co-fiduciaries become heated and highly contested, the principal is no longer around or simply does not have the mental capacity to interject and calm the storm.

So, now you ask, what about my clients who simply cannot make a decision regarding whom to choose as a fiduciary? Well, it depends. One option is to create a very clear tie breaker instruction, such as both co-fiduciaries are removed and a third party makes said contested decision or becomes the fiduciary upon the disagreement. Based on the specific circumstances, I have recommended on more than one occasion that my client may benefit from using a corporate fiduciary. Simply stated, some situations are just better suited to be managed by a corporate entity. In these situations, corporate fiduciaries may charge a fee for serving, but the speed in which these decisions are made and the actions that are taken on behalf of the entity served often cost less than the mistakes that could potentially be made by inexperienced fighting cofiduciaries. The added benefit is that there aren’t any arguments between family members at the Thanksgiving dinner table regarding legal issues (no promises on anything else).

Whether you are appointing an individual or a corporate entity, sole fiduciaries simply have the ability to decide quickly, efficiently, and move on to the next issue. This arrangement does not allow for disputes as to whether decisions must be unanimous or who serves to break a tie in the event of deadlock.

The best practice is to have only one fiduciary, be it a family member or a corporate fiduciary, though there may be some exceptions for certain situations. In these situations, as with any legal advice, it’s the attorney’s responsibility to explain to the client what could happen and elaborate with hypothetical scenarios. Be sure that when drafting the documents, clarify who has the ultimate authority, whether decisions must be unanimous, and be sure to build in tiebreaker provisions to navigate a deadlock if you can’t convince your client to be wary of co-fiduciaries.

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Photo Ops

ETHICS BOWL XV

There was fierce competition for the Ethics Bowl trophy this year! “Ethics Bowl XV: The Parent Trap” was presented as a hybrid CLE on Friday, December 3, 2021 from 1:00 p.m. - 4:15 p.m. This year’s teams were Tim Priest and his son Adam Priest, Patti Jane Lay and her son John E. Baugh, Mary D. Miller and her daughter Georgia A. Miller, John T. Johnson, Jr. and his daughter Betsy J. Beck, Farrell A. Levy and Wayne Kramer, who filled in for Farrell’s daughter Carolyn Levy Gilliam, and T. Scott Jones, and his daughter Abigail Jones. Different teams took the lead during the competition but in the end, there was a tie between the Priest and Lay/Baugh teams. Special thanks to U.T. College of Law Professors Alex Long and Paula Schaefer for serving as program hosts and Matthew Lyon for serving as the Ask a Dean Lifeline. Ethics Panel Participants included Chancellor John Weaver and Hon. Mary Beth Leibowitz.

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January 2022

AT TO R N E Y P R O F I L E By: Bill Haltom Award Presenter Bill Vines Butler, Vines & Babb

CHARLES SWANSON: SHOWING US WHAT IT LOOKS LIKE WHEN WE GET IT RIGHT On December 10, 2021, the Knoxville Bar Association presented its highest award, the Governors’ Award, to Charles W. Swanson. The award recognizes those attorneys who are perceived as role model attorneys and who command special respect from the association.

Through his work as an attorney, including as President of the Tennessee Bar Association, Charles has made many friends, including Bill Haltom and Bill Vines, who volunteered to write the following article to honor Charles: Lawyers are leaders. We are leaders in the courtroom, the boardroom, in government, in business, in public agencies and private foundations.

But every once in awhile, we lawyers encounter a fellow or sister lawyer who is not just a leader, but an extraordinary one. A leader who shows us the way in action rather than words. A leader who is powerful because he or she transfers power to others. A leader who shows us what it looks like when we get it right.

Charles Swanson is such a leader. We witness his leadership every day in his work as Knoxville City Law Director. We have seen his leadership over the years on behalf of the Tennessee and Knoxville Bar Associations. We have seen role model leadership in Charles as a father, husband and mentor.

Charles was a leader long before we met him. At Pfeiffer University in North Carolina, Charles was a leader in the classroom, in student government, and on the baseball diamond. Charles was President of the Student Body, but the leadership role he most cherished was playing first base for the Pfeiffer Falcons! To quote Charles’ favorite line from the movie “Moneyball,” playing first base is “incredibly hard!” But Charles mastered it.

While Charles is a lifelong fan of the San Francisco Giants, his favorite MLB player is Freddie Freeman, the first baseman of the Atlanta Braves. Charles “plays” City Law Director and bar leader the way Freddie Freeman plays first base!

Charles is a leader as a teacher, notably over the years in the Tennessee Bar Leadership Law program (appropriately known as “T-BALL”), and as a visionary leader of the Knoxville and Tennessee Bar Associations.

He is the only lawyer in Tennessee history to hold three of the most powerful leadership positions in the profession: President of the Tennessee Bar Association, President of the Knoxville Bar Association, and First January 2022

Gentleman of the Tennessee Bar! But Charles’ greatest leadership and contribution to legal profession has been as a father. He and Judge Pam produced two fabulous kids who are now, in Amanda Swanson’s words, “continuing the family business.”

Both are graduates of UVA Law School. Son Reedy is now clerking for the United States Court of Appeals for the Fourth Circuit, having previously clerked for the DC Circuit Court of Appeals. Daughter Amanda recently finished a clerkship for the U.S. District Court in Alexandria, Virginia, and is now beginning her career as an attorney for the Justice Department in Washington, DC. She is also the author of “Full Court Press: How Pat Summitt, a High School Basketball Player, and a Legal Team Changed the Game.”

Finally, Charles has been a mentor for many young lawyers and as a “Big Brother” in the Knoxville Big Brothers Big Sisters program. Charles “little brother”, Daryl Clemes, was once asked what Charles has meant to him. He said, “Charles has shown me what it looks like when you get it right!”

Charles has done that for all of us who have been blessed to share with him a life in the law.

He is a worthy recipient of the highest honor of the Knoxville Bar Association, the Governors’ Award.

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WELL READ By: Anita D’Souza

THINK AGAIN: THE POWER OF KNOWING WHAT YOU DON’T KNOW, BY ADAM GRANT Adam Grant, an organizational psychologist, professor at the Wharton School and author of five books, including a New York Times bestseller, prompts us to value mental flexibility and learn how to rethink in his recent book - Think Again: The Power of Knowing What You Don’t Know, published in 2021.

While aimed at the general population, Think Again has insights for lawyers and legal practice. Through a compilation of stories and research studies, Grant advocates for a paradigm shift towards what he calls ‘rethinking’. The concept of rethinking is presented in three parts - Part 1 focuses on rethinking/relearning at the individual level; Part 2 focuses on interpersonal rethinking; and Part 3 focuses on collective rethinking.

The wide-ranging subject of the book makes it feel as if it meanders at times. But, there is a convenient “Actions for Impact” summary of the major takeaways in each chapter at the end of the book. I found it a necessary roadmap and, thought it was a much clearer presentation of the lessons in the book. If you’re pressed for time, start with ‘Actions for Impact’ and decide what you want to read in greater detail. Some of the strongest lessons for the attorney reader can be found in parts one and two. Part three has lessons for organizations that could translate to law firms and in house legal departments.

Part 1 looks at why and how rethinking at the individual level is important and can be learned. Grant discusses a seminal study by Phil Tetlock on the preacher, prosecutor and politician mindsets that we tend to fall into. We tend to act like preachers when we perceive our fundamental beliefs to be at risk; prosecutors when we identify flaws in others arguments/reasoning; and politicians when we want to persuade or win over a group. Grant argues that we should be assuming the mindset of a scientist - doubt what you know, test, and update what you know based on what you learn.

According to Grant, we can learn and practice this ‘rethinking cycle’, through the process of intellectual humility, doubt, curiosity and discovery. Among the many approaches that Grant discusses, two stood out to me - creating personal ‘challenge networks’ of individuals who are willing to thoughtfully question our thinking and engaging in constructive conflict by framing disagreement on tasks rather than relationships.

Part 2. The second part of the book focuses on interpersonal rethinking and has some useful approaches for lawyers, including on relationships with clients. Chapter 5 looks at strategies employed by expert negotiators. Grant points out that expert negotiators focus a large part of their strategies on finding common ground, demonstrating real curiosity in their discussions, and, instead of creating a volume of arguments, tending to present fewer arguments to keep from diluting the strongest arguments. Chapter 7 discusses the technique of motivational interviewing that has been used successfully by conflict mediators to help resolve disputes.

Part 3 of the book focuses on the community level, and looking for

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opportunities to create communities of lifelong learners, what the book refers to as ‘collective rethinking’. The discussion on building a culture of learning in the office is most applicable to legal departments and firms. While the examples relate to engineering and NASA, the techniques could also be relevant to a legal organizational environment, both firm and corporate departments. According to Grant, high performing teams depended on a work environment that valued growth and combined psychological safety with accountability. In research studies, while psychological safe teams reported more errors, they actually committed fewer errors. The ability to admit errors, allowed these teams to learn from their errors faster.

Though this book isn’t marketed specifically towards attorneys, Think Again is about our intellectual relationship with ourselves, our colleagues, and our communities, roles that are central to the legal profession. Attorneys are constantly having to rethink, and this book has some useful insights and reminders that are especially easy to find in the ‘Actions for Impact’ conclusion. Think Again sums up the value of a rethinking mindset in a quote by George Bernard Shaw, “[p]rogress is impossible without change, and those who cannot change their minds cannot change anything.”

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LESSONS LEARNED: REFLECTIONS FROM A RETIRING LAWYER By: John Eldridge

YOUR REPUTATION Your reputation is everything as an attorney. It determines what other lawyers in the Bar think of you, how judges treat you, and even whether the public has a clue as to who you are and what they think of you.

So how do you create a good reputation? The simple truth is that you create your reputation with every interaction you have throughout the course of the day.

When you tell another lawyer something, can she rely on you to keep your word? Are you honest and forthright in your dealings? Do you return all your phone calls? Do you leave other lawyers hanging, hoping they won’t realize you are ignoring them?

Some attorneys think that their reputation comes from the cases they get or the trials they win. Yes, that is true, but your reputation is so much more than that. When you make that first phone call of the day (and perhaps it feels like practicing law is all about talking on the phone), do you greet your adversary with respect? With interest in him or her as a person? Early in my practice, I recall suing someone in a car wreck case, and Bob Cheek (now deceased) called me representing the insured defendant. He welcomed me to the case and then spent about fifteen minutes just “jawing” with me. At the time, I was buffaloed by those extra fifteen minutes of “jawing”. But now I see Bob Cheek was establishing a

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relationship with me that would go well beyond that case. Smart man.

Your reputation is everything that goes out of your office with your name on it as well. Remember, others read your pleadings and gain a sense of you from your written words, particularly judges. When they get a well-drafted pleading, even if they don’t agree with you, it makes an impression and becomes a part of your reputation.

Other lawyers read your letters, your pleadings, and briefs. Well researched? Well written? Open communication? Yes, all of this is a part of your reputation.

What about the Bar? Do you do your fair share of labor for the good of the Bar and the community? Do you donate some time to pro bono causes? Believe me, other lawyers pay attention to your involvement in the Bar and legal association activities. Throughout my career, I have been involved, in one way or another, in getting to know other lawyers through committee work or social events, and it has only helped my practice.

In short, you are developing your reputation with everything you do; from the way you treat the person on the other end of the line, what you submit as the written word, how you handle yourself in court, and even how you trust your office staff.

You only get one chance to make a good first impression. Make it one that will enhance your reputation!

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January 2022

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Kaitlyn E. Hutcherson Woolf, McClane, Bright, Allen & Carpenter, PLLC

DRY JANUARY: ALCOHOL USE AWARENESS “Dry January” refers to the practice of abstaining from alcohol during the month of January and has become a well-known tradition for many. Dry January emerged in recent years as a way to reset one’s mind and provide a fresh and focused start to the new year. Many people find Dry January a useful practice to help manage the anxiety and stress that often follows the busy holiday season and to consciously cut back on alcohol consumption that may have increased during holiday festivities.

But, while some individuals partake in Dry January, other individuals may be struggling with alcohol use. In fact, the American Bar Association (“ABA”) reported in January 2021 that as many as one in five attorneys abuse alcohol, a rate higher than most other professions.1 With the ongoing COVID-19 pandemic and the added pressures of the holiday season, employees may be experiencing increased feelings of stress, anxiety, depression, and even fear, which can lead to and/or exacerbate alcohol use disorders. Now is a good time for firms to review the laws applicable to alcoholism and alcohol use in the workplace and to consider available resources in the community.

Employers in Tennessee may establish and enforce company policies that prohibit the use of alcohol in the workplace and while performing work on behalf of the company. Employers should recognize, however, that alcoholism is often recognized as a disability under the Americans with Disabilities Act (the “ADA”), which can trigger certain obligations and responsibilities for the employer. According to the Equal Employment Opportunity Commission’s (“EEOC”) Technical Assistance Manual: Title I of the ADA: [A] person who currently uses alcohol is not automatically denied protection simply because of the alcohol use. An alcoholic is a person with a disability under the ADA and may be entitled to consideration of accommodation, if s/he is qualified to perform the essential functions of a job. However, an employer may discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct to the extent that s/he is not “qualified.”2 As a result, employers covered by the ADA may be required to engage in the interactive process to determine if an employee struggling with alcohol use is entitled to a reasonable accommodation under the law.

For example, an employee who voluntarily reports to the company that he/she is experiencing a relapse and abusing alcohol may be entitled to a period of unpaid leave to pursue rehabilitation as a reasonable accommodation under the ADA. Employers who choose to become a certified member of the Tennessee Drug-Free Workplace Program may have additional legal obligations

regarding the use of alcohol by employees. The Tennessee Drug-Free Workplace Program Model Substance Abuse Policy provides that covered employers must either implement an Employee Assistance Program, which is a confidential workplace service that assists employees with problems including substance abuse, or publish a directory of substance abuse treatment providers in the community.3 The Tennessee Drug-Free Workplace Program further provides that covered employers shall not take disciplinary action against an employee “solely” upon the employee’s first voluntary request to receive treatment for alcohol use disorder, if the employee has not previously tested positive for alcohol use and is not being sent for alcohol testing under reasonable suspicion or post-accident.4 Even where not required by law, law firms and other employers in the legal profession have begun prioritizing the prevention and treatment of alcohol use disorder in the legal profession. In 2018, the ABA initiated the Well-Being Campaign, which aims to help support healthy work environments and provides practical guidance for addressing alcohol abuse in the profession and the workplace.5 The Knoxville Bar Association provides similar wellness resources, including, but not limited to, its confidential lawyer assistance program, its annual Wellness Conference, and its library of Health & Wellness Center resources.

With the start of a new year, you may find that now is a good time to assess the work environment in your office, review the available resources in the community, and join a growing number of employers in the legal profession that are seeking to identify, treat, and prevent alcohol use disorder by prioritizing and supporting employee health and well-being.

If you are a member of the legal profession and are struggling with alcohol use, you may contact the ABA’s Lawyer Assistance Program, or if you are a member of the KBA you may contact the KBA’s Lawyers Concerned for Lawyers Program, which is a free and confidential program that aids in identifying, treating, and recovering from alcohol use disorder.

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The American Bar Association, Alcohol Use Disorders, (January 13, 2021), https:// www.americanbar.org/groups/lawyer_assistance/resources/alcohol_abuse_ dependence/.

Equal Employment Opportunity Commission, Technical Assistance Manual: Title I of the ADA, (January 1992).

Tennessee Department of Labor & Workforce Development, Sample Substance Abuse Policy Development Instruction, https://www.tn.gov/content/dam/tn/ workforce/documents/injuries/Sample_Substance_Abuse_Policy_Statement_ DFWP.pdf; Tenn. Code Ann. § 50-9-105(a)(6).

Rules of Tennessee Department of Labor Division of Workers’ Compensation, Chapter 0800-02-12 Drug Free Workplace Programs, Rule 0800-02-12-.9: Employee Protection (2018), available at https://publications.tnsosfiles.com/ rules/0800/0800.htm; Tenn. Code Ann. § 50-9-107(e).

American Bar Association, Well-Being in the Legal Profession: Well-Being Pledge Campaign, https://www.americanbar.org/groups/lawyer_assistance/well-being-inthe-legal-profession/.

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 Caitlyn Elam at 546-4646.

January 2022

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January 2022

L E G A L U P DAT E By: Kathleen Keough Griebel Tennessee Valley Authority Office of the General Counsel

QUI TAM! A CIRCUIT SPLIT! SIXTH CIRCUIT HOLDS THAT FORMER EMPLOYEES ARE PROTECTED BY THE FALSE CLAIMS ACT The modern version of the federal False Claims Act (FCA) traces its roots back to the American Civil War.1 It was first enacted in 1863 in response to rampant fraud against the United States Army by war profiteers through the procurement process. The Army would often receive defective shipments of goods like “artillery shells filled with sawdust rather than explosives.”2 Today, instead of fraudulent shipments of minié balls or hardtack, alleged violations of the FCA will mostly likely involve payments through government healthcare programs like Medicare, Medicaid, and TRICARE.3 In addition to civil enforcement by the Attorney General, the FCA also empowers private citizens to bring actions on behalf of the government for suspected violations.4 Through these qui tam complaints, the whistleblower may be entitled to a percentage of the funds recovered by the federal government, and the FCA provides protection from retaliation for bringing such claims.5 In 2010, David Felten, M.D., Ph.D., filed a qui tam complaint in the Eastern District of Michigan alleging that his employer, William Beaumont Hospital, was engaged in illegal kickback schemes by making payments to various physicians and physicians’ groups for patient referrals in violation of the FCA.6 Felten also alleged the hospital retaliated against him during his employment.7 As is customary in qui tam complaints, the United States and Michigan intervened and eventually settled the case against the hospital. Pursuant to the settlement, the district court dismissed most of the case except for Felten’s claims of retaliation and attorneys’ fees and costs.8 By this point in the litigation, Felten’s employment at the hospital had come to a frosty conclusion. In 2018, Felten amended his complaint to include allegations that the hospital wrongly terminated him and blacklisted him from employment in academic medicine by sabotaging his attempts for employment at almost forty institutions.9 The district court dismissed Felten’s allegations of post-termination, retaliatory conduct, and with a portion of the case still pending, Felten sought an interlocutory appeal to the Sixth Circuit on the question of whether the FCA applies to post-employment conduct.10 In a matter of first impression, the Sixth Circuit answered Felten’s question in the affirmative and ruled that the FCA does protect former employees from a former employer’s post-termination retaliation.

Looking to Supreme Court precedent in the context of Title VII, the court first determined the term “employee” as used in the FCA is ambiguous and the lack of temporal qualifier meant that the term could apply “to any person who has ever been employed.”11 Given this ambiguity, the court then determined that the broader context of the FCA compelled protection of former employees from retaliatory conduct by vengeful employers.12 As the court stated, “[i]f employers can simply threaten, harass, and discriminate against employees without repercussion as long as they fire them first, potential whistleblowers could be dissuaded January 2022

from reporting fraud against the government.”13 The court acknowledged that its decision created a circuit split. In 2018, the Tenth Circuit considered the exact question and came to the opposite conclusion.14 The Tenth Circuit determined that the FCA’s “antiretaliation provision unambiguously exclude[d] relief for retaliatory acts occurring after the employee has left employment.”15 Now, eleven years after this case was originally filed and while portions of the matter are still pending before the district court, the hospital has filed a petition for certiorari with the Supreme Court challenging the Sixth Circuit’s decision. The American Hospital Association and the Federation of American Hospitals, in conjunction with all the state hospital associations in the Sixth Circuit, filed an amici brief in support of the petition.16 They argued that hospitals are “uniquely vulnerable” to baseless FCA lawsuits because they are heavily regulated and receive much of their reimbursement from government healthcare programs.17 According to the amici, hospitals incur significant costs even when FCA lawsuits are meritless, particularly those alleging retaliation by former employees, and the Sixth Circuit’s expansion of the FCA’s antiretaliation provision will invite more costly and meritless claims.18 No matter the merit of Felten’s claims, the case certainly demonstrates that FCA qui tam lawsuits can be lengthy endeavors.

Perhaps the Supreme Court will resolve this new circuit split or perhaps not. Regardless, United States ex rel. Felten v. William Beaumont Hosp., is now the law in the Sixth Circuit.

31 U.S.C. §§ 3729-3733.

J. Randy Beck, The False Claims Act and the English Eradication of Qui Tam Legislation, 78 N.C. L. Rev. 539, 555 (2000).

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See, e.g., Press Release, Dep’t of Justice, Office of Public Affairs, Pharmaceutical Companies Pay Over $400 Million to Resolve Alleged False Claims Act Liability for Price-Fixing of Generic Drugs (Oct. 1, 2021), https://www.justice.gov/opa/pr/ pharmaceutical-companies-pay-over-400-million-resolve-alleged-false-claims-actliability.

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31 U.S.C. § 3730.

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Id. at § 3730(d), (h).

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Id. at 430. Felten also alleged violations of the Michigan Medicaid False Claims Act. 7

Id. 8

Id. 9

Id. 10 Id. 11 Id. at 432 (discussing Robinson v. Shell Oil Co., 519 U.S. 337 (1997)).

12 Id. at 435.

13 Id. 14 See Potts v. Ctr. for Excellence in Higher Educ., Inc., 908 F.3d 610 (10th Cir. 2018).

15 Id. at 618.

16 Brief of Amici Curiae in Support of Petitioner at 2-3, William Beaumont Hosp. v. United States ex rel. Felten, --- U.S. --- (2021) (No. 21-443), https://www. supremecourt.gov/DocketPDF/21/21-443/196367/20211014130938985_ Beaumont%20Final%20Brief.pdf.

17 Id. 18 Id. at 6-10.

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NULLIFICATION PROCLAMATION: A HOUSE DIVIDED “We the People”: the first three words written in the United States Constitution, and the ideal that set the foundation for opposition to state nullification. Those three little words—simple and unassuming yet recognized by many beyond the fifty states—were a bold proclamation by the Framers that the United States Government exists to serve its citizens. Or, so we’ve always thought.

On November 4, 2021, the Biden Administration unveiled the long-awaited OSHA rules requiring large employers to mandate their employees to receive the COVID-19 vaccination or submit to weekly tests.1 This Emergency Temporary Standard (“ETS”) required, among other things, that large employers mandate face coverings among unvaccinated employees, grant employees paid time off for the time it takes to obtain the vaccination, and verify employees’ vaccination status.

Before OSHA’s final promulgation of the ETS, the Tennessee General Assembly conducted a three-day special session to address the COVID-19 pandemic at the end of October. Of significance, both chambers passed Senate Bill (“SB”) 9014 and sent it to Governor Lee for executive action. Several provisions of SB 9014 are in stark contradiction to the ETS mandates, and the bill effectively prevents government entities and private businesses from instituting employee vaccine mandates.2 On November 12, Governor Lee signed the legislation into law.

Along with SB 9014, a joint resolution, SJR 9005, also passed both chambers and was sent to Governor Lee’s desk. A resolution differs from a bill in that it does not “become law but simply serve[s] to express the views of the majority of one or both houses of the Legislature.”3 SJR 9005 proclaimed that Tennessee’s leadership has the right to “enact such legislation as it deems necessary to nullify actions taken by the federal government regarding COVID-19 when those actions violate the United States Constitution.”4

NULLIFICATION’S HISTORY This word “nullify” in SJR 9005 is no random verb. Nullification is a legal doctrine, which posits that states have the authority to nullify, or void, federal acts they find unconstitutional within their sovereign borders. “Federal acts” can include laws, regulations, judicial decisions, executive actions, or treaties.5 Moreover, the concept of nullification goes beyond simply declaring that a federal act is unconstitutional but entails a state’s acting on that ruling by blocking the implementation of the federal law or regulation in question within that state’s border.6 The Constitution, albeit ambiguously, separates powers reserved to the states from powers vested in the federal government, with concurrent (or shared) powers peppered within. (Thank you, Schoolhouse Rock!)

Naturally, then, advocates of nullification state that the theory can be implemented when the federal government invades the province reserved

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to the individual states or, even though properly sanctioned by the Constitution, discharges its federal powers inappropriately.7 Nullification is not a modern concept. It dates back to the early 1800s and rose to its height in what is commonly called the “Nullification Crisis.” Nullification gathered steam with the rise of the federal government’s implementation of tariffs to guard American industry by curbing foreign competition.8 The first tariff was relatively low but they continued to rise each year, culminating in the “Tariff of Abominations” of 1828.9 The Tariff of Abominations largely left the southern states unprotected and was met with great resistance in foreign markets.10 So much so that foreign markets blocked the sale of American cotton, which led to economic issues in the South.11 Southern states, most prominently South Carolina, resented these protectionist tariffs and from this resentment, support for nullification gained ground.

During nullification’s initial heyday, the leading man in the movement was South Carolina’s John C. Calhoun (playfully coined by these writers a “Dis-Founding Father”). Calhoun authored several writings advocating for state nullification power, including South Carolina Exposition and Protest in 1828.12 Because he was Andrew Jackson’s Vice President at the time, Calhoun published the pamphlet anonymously, zealously advocated against the tariff, and ultimately laid the foundation for nullification theory.13 Calhoun supported his argument for the nullification power through an interesting interpretation of the Constitution: that the federal government was formed not by the people but through agreement of the individual states. In other words, what the states giveth, the states taketh away.

Nullification divided the White House. Calhoun was an unwavering supporter of states’ rights, and while Andrew Jackson was also a states’ rights supporter, he was not an advocate of state power at the expense of the Union.14 Further, Jackson—unlike Calhoun—believed firmly that the federal government’s power came from the people, not the individual states.

Ultimately, when the Tariff of 1832 was passed and brought no relief, South Carolina passed the Ordinance of Nullification in November of the same year.15 The Ordinance declared the Tariffs of 1828 and 1832 void within South Carolina’s borders on the ground that the Acts were unconstitutional.16 President Andrew Jackson took immediate action by issuing the Nullification Proclamation, noting his opposition to South Carolina’s decision and which stated, in part, I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which It was founded, and destructive of the great object for which it was formed.17

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January 2022

COVER STORY By: Sallie Neese

Lewis Thomason, P.C.

T. Mitchell Panter

Lewis Thomason, P.C.

Jackson also organized an armed resistance to enforce the tariff in South Carolina should a show of force become necessary and convinced Congress to confirm his authority to use force to execute federal laws by passing what is known as “Jackson’s force bill.”18 With Jackson’s efforts on display, congressmen made efforts to reduce the tariff that ignited this conflict, and Congress ultimately passed a tariff reduction in 1833.

Congress’s new tariff pacified South Carolina, and the state rescinded its Ordinance in response.19 Civil crisis averted—at least for a little while.

NULLIFICATION’S REEMERGENCE

While discussing the resolution, sponsor John Ragan (R-Oak Ridge) gave a brief recount of South Carolina’s history of nullification and, for lack of a better phrase, sugar-coated the state’s success rate, stating that the federal government “backed down” from South Carolina and that the theory of nullification was “still alive and well.”24 Notably, Representative Michael Curcio (R-Dickson) felt obligated to set the record straight by noting: I want to make sure this is clear, the federal government did not back down. South Carolina quit. And, unfortunately, South Carolina never really recovered from that wound. They couldn’t get any other southern states to join them in nullification and ultimately rescinded their nullification ordinance on March 15, 1833, but they continued in their behavior until, unfortunately, Fort Sumter was fired on, creating a tragedy for this country. I just want to remind everybody of that, that emulating such behavior is very, very serious and I think we need to be careful about that.25 Governor Lee did not sign SJR 9005 into effect, but he also did not veto the bill. Because Tennessee does not have a pocket veto, the resolution went into effect without his signature. Where things go from here is yet to be seen, but we do know this: nullification has very much returned to popular discourse, and states, including our own, have performed political CPR to enact legislation in its name.

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Although nullification was a hotly debated subject in the 1800s, it largely disappeared from the political landscape by the 19th century.20 In the past decade, however, nullification has returned in full force. In fact, one study identified over 1,500 proposals that relied on nullification principles in the six-year period from 2010 to 2016 alone.21 There is even a national activist organization called the “Tenth Amendment Center” that “works to preserve and protect the principles of strictly limited government through information, education, and activism,” “focusing primarily on the decentralization of federal government power as required by the Constitution.”22 Concerning Tennessee’s latest attempt at nullification, while the United States Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s ETS on November 12, 2021,23 Tennessee legislature passing such a law, and then our leadership signing the law into effect, has drastic ramifications, both in the political landscape and for employers and businesses who, at one point, had to decide which law to follow.

January 2022

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COVID-19 Vaccination and Testing ETS, Occupational Safety and Health Administration, https://www.osha.gov/coronavirus/ets2.

SB 9014, Tennessee General Assembly, https://wapp.capitol.tn.gov/apps/BillInfo/ Default.aspx?BillNumber=SB9014.

How a Bill Becomes Law, Tennessee General Assembly, https://www.capitol.tn.gov/ about/billtolaw.html.

SJR 9005, Tennessee General Assembly, https://wapp.capitol.tn.gov/apps/BillInfo/ Default.aspx?BillNumber=SJR9005.

James H. Read & Neal Allen, Living, Dead, and Undead: Nullification Past and Present, 1 Am. Pol. Thought 263, 273 (2012).

Id. Id. Nullification Crisis, American Battlefield Trust, https://www.battlefields.org/learn/ articles/nullification-crisis.

Id. Id. Id. Marsha Mullin, Andrew Jackson and Nullification, Andrew Jackson’s Hermitage, https://thehermitage.com/andrew-jackson-and-nullification/.

Id. Id. Id. Id. President Jackson’s Proclamation Regarding Nullification, December 10, 1832, The Avalon Project, https://avalon.law.yale.edu/19th_century/jack01.asp#1.

Nullification Crisis, supra note 4.

Id. Id. Id. About the Tenth Amendment Center, The Tenth Amendment Center, https:// tenthamendmentcenter.com/about/.

COVID-19 Vaccination and Testing ETS, supra note 19.

House Floor Session, https://tnga.granicus.com/MediaPlayer.php?view_ id=610&clip_id=25578&meta_id=626782 (last visited Dec. 9, 2021).

Id.

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HELLO... MY NAME IS By: Jennifer Franklyn Leitner Williams Dooley Napolitan

SAVANNAH MCCABE This month’s column features Savannah McCabe, an Associate Attorney at Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. Savannah practices primarily in management-side employment law, including litigation and counseling, as well as construction, insurance, contractual disputes, and commercial torts. She is a double alumna of the University of Tennessee, where she obtained both her undergraduate degree in Political Science, with a minor in Economics, and her J.D. As you will learn in this feature, she is a devoted Tennessee Volunteers fan as well as a “dog mom.” I hope you enjoy this q-and-a in getting to know Savannah, a valuable addition to the Knoxville Bar Association.

Why did you decide to go to law school?

I have always loved problem solving and resolving complex scenarios, especially in the business space. I also have a deep admiration of entrepreneurialism and creativity; however, I am not a risk-taker or an experimenter. So, I wanted a career that allowed me to use my strengths to serve the entrepreneurial community and enable it to continue creating. I initially worked toward a career in the political space, and as an undergraduate and law student, I was fortunate to intern in the Tennessee General Assembly and in Congress. I saw elected representatives work to resolve questions in the entrepreneurial community on a broad scale and learned that I would like to do the same, but with a more targeted approach and directed focus on individual clients. Now I get to do that every day, and I love my job!

What motivates you to work hard and energizes you at work?

My greatest motivator is earning the respect and trust of colleagues, including internal teammates, clients, and opposing or co-counsel. I feel that I’ve “won” each time that I am given more responsibility in a matter or asked to handle a more difficult task without supervision. This is most rewarding when arguing in court or negotiating with opposing counsel— my client’s trust in me to represent

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their interests keeps me going. Additionally, I am proud to be part of such a congenial and professional legal community in Knoxville. Maintaining the same reputation for honesty and integrity that I have come to expect automatically from other Knoxville attorneys is highly important and motivational to me.

What is one professional skill you are working on right now?

As almost every other lawyer I know, I am working on the discipline it takes to truly manage time and regulate capacity. It is easy to be a “yes man” and volunteer for each task thrown your way, especially in a competitive environment. I am trying to focus more on understanding the strongest assets that I bring to my teams, whether professionally or in the community, so that I can give each commitment the time and knowhow it deserves and have the maturity to delegate the rest.

On a typical Saturday afternoon, where are you and what are you doing?

I am at Neyland Stadium watching the Tennessee Volunteers run through the T!! If it isn’t football season, my husband, Chris, and I love to travel. We were lucky to make wonderful friends during our time at U.T. who have relocated all over the country, and we enjoy visiting them. Just this year, we have visited friends in Scottsdale, Minneapolis, Washington D.C., Atlanta, Fort Lauderdale, and all over Tennessee in Nashville, Memphis, and Chattanooga.

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January 2022

SCHOOLED IN ETHICS By: Judy M. Cornett

University of Tennessee College of Law

DO YOU NEED AN INTERPRETER? On October 6, 2021, the ABA issued Formal Ethics Opinion 500, addressing the ethical responsibilities of attorneys when their communication with a client is limited by their lack of a common language or by the client’s hearing, speech, or vision disability. The role of interpreters in court proceedings is well established,1 but less attention has been given to the lawyer’s duty to provide interpreters. The ABA opinion concludes: [W]hen a lawyer and client cannot communicate with reasonable efficacy, the lawyer must take steps to engage the services of a qualified and impartial interpreter and/or employ an appropriate assistive or language-translation device to ensure that the client has sufficient information to intelligently participate in decisions relating to the representation and that the lawyer is procuring adequate information from the client to meet the standards of competent practice.

This duty derives not only from the duty of communication under Rule 1.4, but also from the lawyer’s duty of competence under Rule 1.1.

The opinion notes that the use of “new and emerging technologies” such as “closed captioning, live transcription, screen readers, refreshable braille displays, and speech recognition software” may fulfill a lawyer’s duty to clients with hearing, speech, or vision disabilities. Technologies providing “[e] lectronic text and voice translation” may even substitute for human language translators. But the lawyer must be able to competently assess these technologies; the opinion quotes Rule 1.1, comment [8], stating that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”

The first issue a lawyer must address is whether it is necessary to engage an interpreter2 or utilize assistive technology. The opinion does not address a lawyer’s duty under Rule 1.14 to clients who have a non-cognitive disability or diminished mental capacity, focusing only on clients who do not share a common language with the lawyer, or who have a hearing, speech, or vision disability. With respect to the latter group, the opinion notes that a lawyer may have a duty of accommodation under the American with Disabilities Act.3 In determining whether an interpreter is needed, the lawyer should employ a functional test. If the client “cannot participate intelligently in the representation,” or if “the lawyer is unable to ascertain the information needed to competently assist the client,” then an interpreter or the use of an assistive device is necessary. The opinion cautions that lawyers cannot fulfill their ethical duties by shifting the responsibility onto their clients by, for example, instructing the client to get the lawyer’s written communications translated.

The opinion notes that a human interpreter must be (1) “qualified to serve as an interpreter or translator in the language or mode required,” (2) “familiar with and able to explain the law and legal concepts in that language or mode,” and (3) “free of any personal or other potentially conflicting interest that would create a risk of bias or prevent the

individual from providing detached and impartial interpretive or translation services.” Although a professional interpreter is the safest choice, a lawyer may employ another lawyer or lay staff member who has the necessary qualifications. The opinion urges caution in using a client’s friend or family member as an interpreter since “an individual in a close relationship with the client may be biased by a personal interest in the outcome of the representation.”

The lawyer must also be sensitive to “social and cultural differences that can affect a client’s understanding of legal advice, legal concepts, and other aspects of the representation.” These differences may arise from factors such as the client’s “ethnicity, religion, and national origin.” The lawyer must not assume that an interpreter can necessarily mediate these cultural differences. The duty of communication includes making sure that “the client understands the relevant law and legal, institutional, and social contexts of the communication.” Doing so may require the lawyer to “explain[] the matter in multiple ways,” to spend more time meeting with the client, to “ask confirming questions,” and to conduct research or consult experts to reduce any cultural barriers to client understanding.

When a lawyer engages an interpreter, Rule 5.3 requires the lawyer to “make reasonable efforts to ensure that the interpretive or translation services are provided in a manner that is compatible with the lawyer’s ethical obligations, particularly the Rule 1.6 duty of confidentiality.” The opinion notes that the contract with the interpreter “should address the protection of client information,” and the lawyer should also communicate the duty of confidentiality directly to the interpreter.

What if appropriate interpreter services are unavailable?4 Or what if the client cannot afford an interpreter? The opinion advises that in either case, the lawyer should either decline the representation, withdraw from the representation, or associate a lawyer who can provide appropriate interpreter services.

In practical terms, the ABA opinion requires the lawyer to exercise informed judgment about when a human interpreter or assistive technology is needed. In some cases, of course, it will be an easy call.

But in other cases, the lawyer will have to make delicate judgments at every stage of the representation to make sure the client and lawyer can communicate effectively. One local resource for language translation is The Foreign Language Academy, https://foreignlanguageacademy.org/.

By remaining alert to communication difficulties resulting from language differences or a client’s hearing, speech, or vision disability, a lawyer can fulfill the ethical duties of competence and communication.

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See Tenn. Sup. Ct. R. 41, 42.

Throughout this article, the term “interpreter” includes translator.

The opinion cites Alex B. Long, Reasonable Accommodation as Professional Responsibility, Reasonable Accommodation as Professionalism, 47 U.C. Davis L. Rev. 1753 (2014).

One local resource for language translation is The Foreign Language Academy, https://foreignlanguageacademy.org/. The Administrative Office of the Courts also maintains a searchable database of certified and registered court interpreters, https://www.tncourts.gov/programs/court-interpreters/find-court-interpreter.

If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835.

January 2022

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barrister bullets ELECTION RESULTS The Barristers Elections and Holiday Party was held on December 8.

Thank you to everyone who came and to our newly elected Executive Officers: Meagan Collver, President; Zachary Walden, Vice President; Chuck Sharrett, Secretary/Treasurer and Christine Knott and Jordan Houser, Members at Large.

MONTHLY MEETING Plan now to attend the first Barristers monthly meeting of 2022 on Wednesday, February 9. Details to follow.

VETERANS LEGAL ADVICE CLINIC The Veterans’ Legal Advice Clinic is a joint project of the KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox Co. Public Defender’s Community Law Office, the UT College of Law, LMU- Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. The next Veterans Legal Clinic will be held in person at the Knoxville Community Law Office on February 9. There will be NO clinic in January. Sign up at https://www.knoxbar. org/?pg=Upcoming-Legal-Clinics.

VOLUNTEER BREAKFAST COMMITTEE CONTINUES OPERATIONS The Volunteer Breakfast Committee would like to thank all those who volunteered and sponsored during 2021. Most especially, we would like to thank Mitchell Panter 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. at at the Volunteer Ministry Center, located at 511 N. Broadway, Knoxville, Tennessee. The Barristers Volunteer Breakfast Committee always needs 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 either Matt Knable at (865) 360-5044 or Laura Wyrick at (865) 297-5511 with any questions and/or about volunteering.

first round of virtual mock interviews for University of Tennessee College of Law students will take place on January 13-14 and the second round of in-person mock interviews for Lincoln Memorial University Duncan School of Law students will take place on January 20-21. Attorneys can sign up to conduct as many mock interviews as they would like. In early January, each volunteer will receive the necessary interview information, which will include the student’s resume. Each mock interview will last for 30 minutes, allowing for 20-25 minutes to conduct the interview and 5-10 minutes to provide students with feedback. If you would like to conduct a virtual mock interview, complete the form in the link below.

Email Courtney Walker at cdw@tennlaw.com if you would like to volunteer to conduct an in-person mock interview. https://docs.google.com/spreadsheets/d/1C7x3I2qQOCTy2e8EFfhrmEHFDe68dfi-ns5ICfbPCg/edit?usp=sharing

THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS:

VOLUNTEER FOR ANNUAL HIGH SCHOOL MOCK TRIAL COMPETITION The Barristers High School Mock Trial Committee finalized this year’s Regional Competition dates. The Regional Competition will occur in the City County Building on March 4 and 5, and the final two teams will advance to the championship round held in LMU’s Business Courtroom on March 6. This program is supported entirely by volunteer efforts.

Traditionally, East Tennessee law school students, attorneys, and judges have donated their time to serve in the roles of bailiffs, scoring judges, and presiding judges during the competition. Please contact either Bridget Pyman at (865) 546-7000 or Isaac Westling at (865) 637-2900 with any questions, and if you are interested in volunteering, you can sign up at: https://memcentral.wufoo.com/forms/s19ddkuz1ngycvp/.

MOCK INTERVIEWS TO BEGIN IN JANUARY - SIGN UP TO VOLUNTEER TODAY It is mock interview time! The Barristers Law School Mentor Committee is looking for volunteers for its upcoming series of mock interviews. The

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WELCOME NEW MEMBERS

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NEW ATTORNEYS Kristin M. Bastian Breeding Olinzock Carter Crippen, PC Joshua Booth Autumn Bowling David C. Cantrell Woolf, McClane, Bright, Allen & Carpenter, PLLC Michael H. Dellinger Baker, O’Kane, & Thompson PLLP Carl Dowdy Rebecca Eshbaugh Knox County Public Defender’s Community Law Office Kathleen K. Griebel Tennessee Valley Authority - Office of the General Counsel Morgan H. Howard Jacob King Elmore, Stone & Caffey, PLLC Camille DeBona Pace Clark & Washington, P.C. Ryan Price Richard H. Robinson Richard H. Robinson, Attorney-at-Law Chad J. Talbot Pilot Company

NEW LAW STUDENT MEMBERS Harrison S. Blowers Karen Briz Carson K. Kovalic Myles A. Roth Rachel Schworer Jessica White

January 2022

BETTER By: Melissa B. Carrasco

Egerton, McAfee, Armistead & Davis, P.C.

UNFINISHED BUSINESS In the middle of the Seine River, in the heart of Paris lies a tiny island known as the Íle de la Cité or “City Island.”1 It is connected to the rest of the city by nine bridges (one leads to another island, Íle SaintLouis), and it has been home to many different cultures since a small, Gallic tribe known as the Parisii moved onto the island in the third century B.C.2 In an effort to avoid invasion from another tribe (which apparently was rather common back in those days), they build a wall on the island, and it became known as “Paris.”3 As was common during that period of history, the tiny island was also home to people of different faiths, but the predominant religion was Christianity. And so, as people of faith often do, they build a church—a wooden structure that they called the Basilica of Sainte-Étienne, which was consecrated a little before 400 A.D.4 About four hundred years later, they built a second church—the Basilica of Saint-Denis, the first Bishop of Paris, who, according to history was beheaded for his faith.5 And there these two building stood, year after year, century after century, slowly slipping into history until 1160 A.D. when Maurice de Sully, then Bishop of Paris, decided to build a single, larger building between the two basilicas.6 By all accounts, there was no reason why Maurice de Sully should have been the one to take on a large building project. He was born into a family of peasants who lived at Sully-sur-Loire, about 100 miles outside of Paris.7 But, his parents managed to send him to school in Paris, and by the time he was twenty-seven, he was a professor of theology at the University of Paris.8 When Peter Lombard, then Bishop of Paris, died in 1160 A.D., Maurice was appointed his successor.9 Three years later, they broke ground on the new church, a Gothic style cathedral, with a cruciform layout, with flying buttresses, elevated nave, pointed arches and ribbed vaulting.10 And so, construction of the great Notre Dame Cathedral began in 1163 A.D., and it continued for the next one-hundred-eighty-two (182) years until it was completed in 1345 A.D.11 One-hundred-eighty-two years is a long time for a building project. Maurice de Sully who birthed the idea died thirty-six years later.12 He never saw the completed Cathedral. Pope Alexander III who laid the foundation stone never saw the completed Cathedral.13 In fact, generation after generation of people worked on the Cathedral, dedicated time and money to build the Cathedral, and left bequests in their wills to further the completion of the Cathedral.14 But, they did not see the finished Cathedral. But, they did not stop building, and they did not stop giving.

In 538 B.C., about two hundred years before the Parisii moved onto the Íle de la Cité, another group of people were on the move. This ancient group of people had been in exile for seventy years after their country had been overrun by the Chaldeans who forced about 10,000 of them to relocate to the city of Babylon.15 They called themselves the “Gola” (“exiles”) or “bene gola” (“children of the exiles”), and they longed for a home.16 So, after seventy years, when Cyrus the Persian conquered Chaldea and issued an order allowing the Gola to return home, many of them went.17 Cyrus had one instruction: rebuild the temple—the Beit haMikdash—that had stood in Jerusalem for four hundred years until it was destroyed by the Chaldeans.18 So they did. Under the direction of Zerubabbel, son of Shealtiel, Jeshua, the son of Jozadak, and Ezra, the temple was rebuilt.19 According to ancient literature, the work began on the second month of the second year after the Gola had returned home, and when the builders laid the foundation stones, the priests and the Levites played instruments and all of the people shouted for joy.20 Well, not all of the people. The book of Ezra records, “But many of the Cohanim (priests), L’ January 2022

vi’ im (Levites), and heads of fathers’ clans, the old men who had seen the first house standing on its foundation, wept out loud when they saw this house; while others shouted out loud for joy – so that the people couldn’t distinguish the noise of the joyful shouting from the noise of the people’s weeping.”21 Why were they weeping? In the eyes of those who remembered Solomon’s temple, the second temple “seemed like nothing.”22 It was too small, too insignificant.

For the people who worked on the Cathedral at Notre Dame and Zerubbabel’s Temple in Jerusalem, it must have seemed like their work was meaningless. On the one hand, working on a building day after day, year after year, decade after decade is discouraging. Rebuilding amidst ruins is a painful reminder of what was lost. However, these two groups of people, separated by centuries, were not building for themselves. They were building for the future—for the people who would see the finished Cathedral one day and the people who would only know Zerubbabel’s Temple as their house of worship.

And so, do we. The practice of law is built upon the shoulders of those who practiced before us, but we must be careful to remember that we are building something that will outlast us. In that respect, the prophet Haggai’s admonition to the Gola rings true even today: “Take courage, all you people of the land . . . and get to work. . . . The glory of this new house will surpass that of the old.”23 We also must be willing to work to build something better.

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Encyclopedia Britannica, Paris, available at https://www.britannica.com/place/Paris.

Id. Id. Id.; see also Nature History Heritage, Medieval Histories (Apr. 17, 2019), https:// www.medieval.eu/notre-dame-de-paris, last visited Dec. 10, 2021.

Nature History Heritage, supra n. 4; see also Encyclopedia Britannica, St. Denis, available at https://www.britannica.com/biography/Saint-Denis. For purposes of completion, in 502 A.D., Abbot Hilduin wrote that his decapitated corpse picked up his head and walked two miles to the location where the Benedictine abbey of St. Denis was founded. Id.; see also Anne-Marie Romero, Saint-Denis: Emerging Powers (Paris: Presses du CNRS 1992), excerpts available at https://ccnmtl. columbia.edu/projects/paris_map/popup/stdenis/saintdenis.html. This was a good bit before my time, and I have been unable to find anyone who could confirm or deny what the Abbot recorded.

Encyclopedia Britannica, Paris, supra n. 1.

Catholic Online, Maurice de Sully, https://www.catholic.org/encyclopedia/view. php?id=11148, last visited Dec. 10, 2021.

Encyclopedia.com, Maurice of Sully, https://www.encyclopedia.com/religion/ encyclopedias-almanacs-transcripts-and-maps/maurice-sully, last visited Dec. 10, 2021.

Id. European Architecture Series, Notre-Dame Cathedral, Paris, History and Gothic Architectural Design, http://www.visual-arts-cork.com/architecture/notre-dameparis.htm#architecture, last visited Dec. 10, 2021.

Encyclopedia Britannica, supra n. 1.

Catholic Online, supra n. 7.

Encyclopedia Britannica, supra n. 1.

Figures and Facts about Notre Dame Cathedral, https://www.eutouring.com/ facts_notre_dame_cathedral.html, last visited Dec. 10, 2021.

AICE, The Jewish Temples: The Babylonian Exile (597-538 BCE), https://www. jewishvirtuallibrary.org/the-babylonian-exile, last visited Dec. 10, 2021.

Id. Id. Id.; see also AICE, The Jewish Temples: The First Temple – Solomon’s Temple, https://www.jewishvirtuallibrary.org/the-first-temple-solomon-s-temple, last visited Dec. 10, 2021.

Id. Ezra 3:9-11 (CJB) Ezra 3:12-13 (CJB).

Haggai 2:4 (CJB).

Haggai 2:4, 9 (CJB).

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OUTSIDE MY OFFICE WINDOW By: Robbie Pryor Pryor, Priest & Harber

RAISED ON SUGAR I’ve never been a cheater. But, I’m cheating. I didn’t want to, and it came as such a surprise. I’ve always been loyal to those I love, never wavering. But, then Rocket Fizz Soda Pop and Candy Shop opened on Market Square. Oh, my days.

I live within steps of Mast General Store, a beautiful store of cool clothes, shoes, games, etc. It is my favorite store in Knoxville. Within Mast is what I call “The Candy Store.” For the last three years I have found myself timing my walks to and from home based on Mast’s operating hours. I have a sugar addiction. I don’t deny it.

I was raised on sugar. However, I didn’t know how much sugar was flowing through my body or that my intake was out of the ordinary until one morning in fifth grade when I spent the night at a friends house. “Robbie, do you like Cream of Wheat?” asked my friend’s mother. “I love it!” I said. When she placed her “version” of the American breakfast staple, I was in shock. It was white. My Mom’s Cream of Wheat was yellow. I forced it down unbelieving of the bland taste of the porridge and promptly called my mother to come get me. The difference, I later discovered, was butter and sugar, lots of it, and the lesson stuck - Butter and sugar make everything better.

When I put the first Sweetart in my mouth one Christmas morning in 1976, my life took a turn. The warm days of spring and summer were spent jumping on my bike along with my brother and neighborhood friends and flying down Heritage drive to the local White Store where a row of shelves stocked with Bottlecaps, baseball cards, Sweetarts, Jolly Ranchers, Fun Dip, Hubba Bubba Bubblegum, Pixie Sticks, Blow Pops, Gummy Bears, Ring Pops and Gobstoppers waited. We spent all the money given to us on candy and baseball cards.

Sugar didn’t come only by way of candy and the regular infusions into my daily meals - it came in liquid form. Mountain Dew, Coca Cola, Kool-Aide, and Sprite were my go-to’s. My mother would take us to Smoky Mountain Market on Chapman Highway and we would enter to the huge Coolers with stacks of shaved ice that exposed the tops of Fanta Grape and Orange Crush bottles. The colors of the liquid inside the bottle enhanced by the ice crystals illuminated the front of the market. I’d leave with a loaded chili dog, and Orange Crush and a watermelon Blow Pop. Heaven on Earth.

As an adult, my candy intake only increased, especially when I began making my own money. As the years passed I was always on the lookout for the old candy, the good stuff. When I discovered Mast, and in particular, the Candy Store, I was transported back. Near the back

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of the store are a great many of the old favorites and some of the more modern choices (let’s call it millennial candy), like sour straws, nerds and skittles (great developments no doubt). They have the largest selection I’ve ever seen. When the clerk is ringing up my order, I always draw a look of concern. “Santa needs some stocking stuffers,” I say. “It’s July,” is the response. “Just wrap it up, kid. I have places to be.” It is my store.

I have my own basket I fill up as I peruse the delectables. So committed I have been that the staff knows my name, like Norm at Cheers. I want to be where everybody knows my name. I can hear them when I come in, gathering one another - “Here comes the Candy Man.” I noticed the shop near Tupelo Honey while I was walking through the Square. I wondered what good restaurant we might get downtown. I travel through Market Square on almost a daily basis. I noticed a different setup begin to develop inside and thought it might be a clothing shop. When I saw the announcement of the grand opening of Rocket Fizz, I became excited. It was the first day of stocking that convinced me something special was afoot. Then I saw the installation of coolers and the colors began to flow in. When I looked in the window and saw them stocking the shelves with candy I couldn’t sleep for two days.

Then, the grand opening. On my first visit, Nancy and Rosie (the dog) waited outside. Five minutes in, I had to step back outside to catch my breath. Inside are two large coolers full of every sugary-flavored sodas on the planet. All the colors of the world, the very colors of liquified sugar light up the building. The rows of candy are an homage to the 1970’s and include every solidified sugar hard candy to the modern day. If there were a class called The History of Candy I would be the professor and hold classes in Rocket Fizz. I would list the candy choices here, but you get the idea, and I’m not allowed due to blood pressure concerns. I will say that the highlight of the store is a selection of almost every Haribo product ever made. In my will, I have instructed my personal representative to spread my ashes on the third row, near the basket of Blow pops.

A new year needs resolutions, and after a great deal of thought, mine is to return to Mast. There is room for both in my life. They do have Charms Balls and a better rock candy selection than Rocket Fizz, and they know my name. Bill, who works the counter almost saw me walking in Rocket Fizz the other day. I ducked in behind an umbrella at Tupelo.

It was a close call. When I finally entered Rocket Fizz, Clara said, “Hey Robbie, we got that shipment of Haribo Roulettes in.”

I can’t live like this.

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January 2022

OF LOCAL LORE & LAWYERS By: Joe Jarret, J.D., Ph.D. Attorney, The University of Tennessee

OTTO WOOD, THE TERROR OF TENNESSEE, NORTH CAROLINA, VIRGINIA, ETC.

It was when he was required to fill out a selective service draft card in 1917, (which was required due to America’s entry into the First World War), that Otto Wood 1 recorded his “Occupation” as “In jail awaiting release to Tennessee Penitentiary.” So who was this enigmatic character who earned such monikers as “The Houdini of the South” (for his uncanny ability to break out of most any prison or jail), to “The Robin Hood of the Blue Ridge” (for his propensity to share with the less fortunate the money he took from the more fortunate?). Born in Wilkes County North Carolina (N.C.) in 1894, Otto Wood began his life of crime at thirteen, when he stole a bicycle in Wilkesboro for which he was jailed for five months and ultimately released with a reprimand from the county judge. At fourteen, he was convicted of breaking into a hardware store and sentenced to serve six months on the chain gang, but, once again, because of his youth, was sent home to his mother.

In his one attempt to turn from a life of crime, Otto worked on the railroad, subsequently losing his left hand in a work-related accident, thus earning him another moniker, “The One-Armed Bandit.” Otto hired an attorney, successfully sued the railroad, and was awarded $7,000 in damages. He ultimately married, but on his honeymoon trip to Kentucky, Otto was convicted of car theft in Tennessee and sentenced to three years in the Tennessee State Penitentiary. After a year of hard labor, he escaped, leaving in a dry goods box that was hauled out of the prison by the very guards who were charged with his care. Chased by bloodhounds throughout the night, Otto struck a 250-pound guard on the head, rendering him unconscious, and climbed into a freight train caboose.

Finding a railroad uniform, he disguised himself as a railroad brakeman, then promptly presented himself to the search party, thus joining in the chase for himself.

Otto spent most of his short life traveling across North Carolina, East Tennessee, Kentucky, and Virginia as a bootlegger, a bandit, and a fugitive, when he ultimately shot and killed a pawnbroker. He was the object of both scorn and song, and, as one ballad reminisced, “He loved the women, he hated the law, and he just wouldn’t take nobody’s jaw.” Over the years he escaped from jails and prisons in Virginia, West Virginia, North Carolina and Tennessee, and, despite hefty rewards for his capture, was never betrayed, most likely for his tendency to share his ill-gotten gain with the less fortunate.

Of the ballads written about Otto, and there were several, the most popular, entitled “Otto Wood the Bandit,” ended up on Columbia Records. It goes like this: January 2022

Step up, buddies, and listen to my song I’ll sing it to you right, but you may sing it wrong, All about a man named Otto Wood, I can’t tell you all, but I wish I could.

He walked in a pawn shop a rainy day, And with the clerk he had a quarrel, they say.

Pulled out his pistol and he struck him a blow, And this is the way the story goes.

They spread the news as fast as they could, The sheriff served a warrant on Otto Wood.

The jury said murder in the second degree, And the judge passed the sentence to the penitentiary.

Otto, why didn’t you run?

Otto’s done dead and gone.

Otto Wood, why didn’t you run When the sheriff pulled out his 44 gun?

They put him in the pen, but it done no good, It wouldn’t hold the man they call Otto Wood.

It wasn’t very long till he slipped outside, Drawed a gun on the guard, said, “Take me for a ride.”

Second time they caught him was away out west, In the holdup game, he got shot through the breast.

They brought him back and when he got well, They locked him down in a dungeon cell.

He was a man they could not run, He always carried a 44 gun.

He rambled out west and he rambled all around, He met the sheriff in a southern town.

And the sheriff says, “Otto, step this way, ‘Cause I’ve been expecting you every day.”

He pulled out his gun and then he said, “If you make a crooked move, you both fall dead.

Crank up your car and take me out of town,” And a few minutes later, he was graveyard bound. 2

Otto Wood, the man, the myth, the legend, the bootlegger, the thief, the killer, ultimately shuffled off the mortal coil but did not go quietly into that good night. Instead, he died in an exchange of gunfire with law enforcement. Said an old friend, “For Otto, it was a good way to die.”

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For a comprehensive study of the life and times of Otto Wood see McKenzie, T. J. (2012). “ROBIN HOOD OF THE BLUE RIDGE”: THE LIFE, LEGEND, AND SONGS OF OTTO WOOD, THE BANDIT (Doctoral dissertation, Appalachian State University). © 1965, Columbia Records and Arthel Lane “Doc” Watson, American guitarist, songwriter, and singer.

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January 2022

BARRISTER BITES By: Angelia Morie Nystrom

The University of Tennessee

MAKE YOUR HOLIDAYS FESTIVE WITHOUT THE FUSS

I have always loved Christmas. I love everything about it: the music, the decorations, the Hallmark channel movies, and the food. I especially love the food. For someone who loves to cook and entertain, Christmas truly is the most wonderful time of the year.

For as long as I can remember, Hugh and I have hosted a Christmas morning breakfast for my family (which has become more of a Christmas morning brunch since we now have a teenager).

Most years, we also host Christmas dinner, which includes Hugh’s family, some of mine, and friends who are more like family. I’ve been able to experiment with all sorts of fancy foods (poached pears, tartiflette), and, for a number of years, Christmas dinner was like Thanksgiving dinner on steroids, featuring turkey and its accoutrements as well as beef and ham and dishes that complemented them.

A few years ago after the presents had been opened and I was left with tired feet, dishwater hands, and a bunch of dirty dishes, I realized that I was going from Santa’s elf to the Grinch pretty quickly. Christmas was over, and I didn’t get to enjoy any of it. I had been in the kitchen all day, and I had missed the spirit of the holiday.

That night, I vowed that I would not miss the fun again. I needed to come up with a dinner that left me with time to actually enjoy celebrating Christmas with our family. I spent the year poring over recipes to come up with something festive without the fuss.

Christmas dinner at our house now features a simple salad, beef tenderloin, burgundy mushrooms, twice-baked potatoes, and Sister Schubert’s rolls. It is a great dinner that can be prepared for a large group in very little time. These recipes have become my “go-to’s” and have not failed me yet. If you want festive without fuss, then this might be the menu for you, too.

For the salad, use triple-washed mixed greens topped with raw pecans, cubed apple, bleu cheese, and craisins (or dried cranberries). Toss with Stonewall Kitchen’s maple balsamic vinaigrette dressing. It is easy… and it is amazingly good. For twice-baked potatoes, I use the pre-made version from either Butler and Bailey (my favorite) or Fresh Market (also really good). I just unpackage them and pop them in the oven until they are warm. I also use Sister Schubert’s premade rolls. I have tried (and failed) with homemade bread more times that I can count, and Sister Schubert is a most appreciated substitute.

The beef tenderloin and burgundy mushroom recipes were passed down from dear friends, who are both amazing cooks. Our friend Ross was gracious enough to give me his beef recipe, and it is probably the best I have ever made. (I’ve tried a number of different methods, but his is the best.) The burgundy mushrooms are courtesy of my friend Melissa. She January 2022

had made them for a party that Hugh attended several years ago when I was out of town for work, and he called me at midnight to tell me that they were the best thing he had ever eaten. I have used both for a couple of years, and I want to share them with you.

The beef tenderloin starts with a 6-7 lb beef tenderloin (trimmed and tied). For best results, let the meat sit out an hour before you cook it to get it to room temperature. Preheat oven to 450°. In the meantime, get a bowl and combine 2 TBS Kosher salt, 2 TBS black pepper, 2 TBS sugar, 3 TBS bacon grease (I keep grease from Benton’s smoked bacon in the refrigerator), and ½ cup olive oil. Mix well and set aside.

Heat a griddle on medium high and put 1 TBS of butter and 1 TBS olive oil on griddle top. Once melted, place tenderloin on the griddle and brown on all sides (about 1-2 minutes each side). Take the tenderloin from the griddle and place on a broiling rack that sits in a roasting pan. (Don’t put the meat directly on the bottom of the roasting pan.)

Stir up the marinade and pour a little of it at a time over the meat. Rub the marinade all over the tenderloin, paying close attention that you get it in all the crevices. Use all of the mixture. It will look like it is drowning, but it is fine.

Place a roasting thermometer in the largest part of the tenderloin. (I use one that attaches to a display on the counter. It works better than the oven probe.) Cook to 140° and remove from oven. Move the meat from a rack to a cutting board and cover with foil for at least 20 minutes to rest. Slice meat as desired and serve with horseradish. This will serve 8-10 people.

The burgundy mushrooms are a favorite and are just as easy. To prepare, wash 4 lbs button mushrooms and throw into a large pot. Add 2 sticks of butter, 1 ½ TBS Worcestershire sauce, 2 bottles of burgundy wine (although any rich red wine will do), 1 TBS fresh ground black pepper, 2 cups boiling water, 4 chicken bouillon cubes, 4 beef bouillon cubes, and stir to combine. Bring to a boil over medium-high heat.

Reduce heat to low and simmer, covered, for 6 hours. (I transfer to a very large crock pot and heat on low heat.) Remove the lid and continue cooking, uncovered, for an additional 3-4 hours. Serve straight from the pot or put them in a serving bowl (duh!). Have crusty bread ready to soak up all the deliciousness. In the meantime, get a part-time job to pay for the gas or electric bill for cooking these. They are yummy and serve 8-10 people.

If you want festive without the fuss during this holiday season, I hope this menu/these recipes will help. No matter how you celebrate, though, I hope it is wonderful!

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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

SAMSUNG GALAXY BOOK PRO 360 We have been in the market for a new laptop and have spent quite a lot of time trying to decide which one to purchase. There are a lot of new incredible laptops that have been released recently including new models from the Microsoft Surface line, Apple MacBook line, Lenovo Thinkpad line, and Dell Latitude line, to name a few. We started our search by stipulating that whichever laptop we purchased had to be lightweight (preferably 3 lbs. or less); Microsoft Windows-based; Intel Core i-7 processor; long battery life; and convertible from a laptop to a tablet. We recognize that there are very good options that do not meet all these requirements; but these were the standards that we wanted for our new laptop.

Our search was aided somewhat by Intel, the company that makes many of the processor chips found in computers. Beginning in 2020, Intel created the Intel EvoM label which any laptop can carry, regardless of manufacturer, if the laptop meets some minimum requirements that Intel considers important for a business-class laptop. Some of those requirements overlapped with our wish list, so we narrowed down our search to laptops that were designated as Evo compliant.

Phil has always been a fan of Samsung phones; but up till now we had never purchased a Samsung brand PC or laptop. Our search for a new laptop ended when we found the Samsung Galaxy Book Pro 360, which became our first Samsung computer purchase. For starters, the Galaxy Book laptop convertible carries the Evo label, which means it already has many of the requirements that we were looking for in a laptop. We opted for the 15” display model (there is also a 13” display model).

There were a few unique features about the Galaxy Book Pro 360 that really stood out to us in the selection process. Samsung, of course, is known for their stunning AMOLED displays on their high-end phone models. They have replicated this very rich display on the Galaxy Book Pro laptop. The full HD 15” display on our laptop is bright and the colors are very rich. Also, the Galaxy Book Pro 360 is a 2-in-1 convertible.

The screen can rotate a full 360 degrees to lay flat on the other side of the keyboard. Even in this tablet mode, the device is very thin and very comfortable to work with. The laptop also comes with a Samsung S-Pen for writing on the screen. We use it quite frequently to sign and annotate

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documents and to take notes; and it works very well. We wish the laptop had a designated slot to store the pen when not in use. It will attach magnetically to the back of the display panel; but we tend to store it separately in our backpack so that it will not get lost accidentally.

The laptop itself is very light, tipping the scales are right at 3 lbs.

The 15” display provides enough room for a separate number keypad on the keyboard, which is one of the reasons we went with the larger display screen. The keyboard itself, while spacious enough, is just an ok keyboard in terms of tactile response. We wish the keys on the keyboard had a little more depth to them; but maybe we’re just being a little too picky. The touchpad on the keyboard panel is huge; but (and again we are probably being overly picky) the touchpad surface is so smooth that our finger tends to move too quickly while selecting items on the screen. The feel of the touchpad has taken some getting used to.

While Samsung advertises a 20-hour battery life, we haven’t verified that our model actually gets that performance. We are, however, able to unplug the laptop in the morning; take it with us to the office or court; use it all day long for general office work (and a little bit of leisure) on a single charge. Allday battery life is very important to us because we hate having to scramble in the middle of the day to find an outlet to recharge our laptop.

Being that Samsung is the manufacturer, you would expect there to be tight integration features between the laptop and any other Samsung products.

There is a Quick Share feature that allows you to share content very easily between the laptop and your Samsung phone. The Samsung Flow app also lets you share your phone screen directly to your laptop screen.

There are further integrations for Samsung’s earbuds Galaxy Buds and the Galaxy Watch, which we have not used. The bottom line is that the Samsung Galaxy Book Pro 360 is a great laptop regardless of what other smart devices you may own; but, if you own Samsung devices, the nice integration is an even stronger incentive for getting this laptop.

So, we are very pleased with our recent laptop purchase. As of right now, our new Galaxy Book Pro 360 is scratching all our itches. But we are anxiously awaiting the 2022 Consumer Electronics Show coming up in January in Vegas. We can’t promise we won’t be back in buying mode after the first of the year.

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January 2022

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

FULFILLING OUR OATHS One year ago, insurrectionists attacked the United States Capitol.

For the first time in American history, one of our most fundamental constitutional principles, the peaceful transition of power, was violently challenged.

The challenge was met. Brave police officers and National Guard troops locked arms and engaged in hours of hand-to-hand combat to defend the Constitution. They had taken oaths to do so.1 Many were injured. Some died. But they fulfilled their oaths.

Like most Americans on that terrible day, I watched live video of people smashing windows at the Capitol, overrunning barricades, attacking the police with bear spray, using American Flags on poles as weapons. They had even erected a scaffold. The insurrectionists chanted, “Hang Mike Pence!” It was like a scene from the French Revolution, only with a noose, rather than a guillotine.

Pence, of course, was our duly-elected vice president, and it was his job to count the electoral votes for the 2020 presidential election. He was inside the Capitol, with his family. These screaming rioters intended to publicly execute him to prevent his fulfilling his constitutional duty.2 Their chanting was not mere rhetoric. It was rhetoric accompanied by deadly violence. The Vice President, only yards away from the insurrectionists, was in mortal danger. So were Members of Congress, especially those who were particular targets of the insurrectionists, notably Speaker Nancy Pelosi.

Like hundreds of millions of people across the globe, I was stunned. Could this be happening? Here? In America? It was. It did.

Our Constitution was under attack. By people who called themselves “patriots.” By people who called themselves “Americans.”

But the vice president and members of Congress had also taken oaths, to “support and defend the Constitution of the United States against all enemies, foreign and domestic.”3 Only hours after the police and National Guard had put down the insurrection, Congress and the vice president returned to the House chamber and certified the electoral votes. Pence certified his own defeat. On that terrible day, Pence and Congress fulfilled their oaths.

As attorneys, as officers of the courts, we have also taken oaths. In Tennessee, we have sworn to “support the Constitution of the United States.”4 What does that mean at this pivotal moment in American history?

At the very least, it means that we should not misrepresent what is happening in our nation. Rudy Giuliani found that out the hard way, when the State of New York recently suspended his license to practice law. The state acted, in large part, because of Giuliani’s “demonstrably false and misleading statements to courts, lawmakers and the public at large . . . to improperly bolster respondent’s narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client.”5 The order of suspension is worth quoting at some length: The seriousness of respondent’s uncontroverted misconduct cannot be overstated. This country is being torn apart by continued attacks on the legitimacy of the 2020 election and of our current

president, Joseph R. Biden. The hallmark of our democracy is predicated on free and fair elections.

False statements intended to foment a loss of confidence in our elections and resulting loss of confidence in government generally damage the proper functioning of a free society. When those false statements are made by an attorney, it also erodes the public’s confidence in the integrity of attorneys admitted to our bar and damages the profession’s role as a crucial source of reliable information. It tarnishes the reputation of the entire legal profession and its mandate to act as a trusted and essential part of the machinery of justice. Where, as here, the false statements are being made by respondent, acting with the authority of being an attorney, and using his large megaphone, the harm is magnified. One only has to look at the ongoing present public discord over the 2020 election, which erupted into violence, insurrection and death on January 6, 2021 at the U.S. Capitol, to understand the extent of the damage that can be done when the public is misled by false information about the elections.6 And so, at a minimum, to uphold our oaths, we should not make unfounded claims of widespread voter fraud.

Please note the word “unfounded.” If there is actual evidence of voter fraud, we should, of course, bring it forward and punish those responsible to the full extent of the law. We should document it, expose it, and ensure that it never happens again.

But we should not make serious allegations, in court or in public, without any evidence to back them up, and in the face of mountains of evidence to the contrary. Especially when those unfounded allegations erode support for our Constitution.7

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Code of the District of Columbia § 1–604.08. Oath of office; 32 U.S. Code § 312, Appointment oath.

Heaven knows what they would have done with the vice president’s family, but we can guess; some of the rioters carried plastic hand cuffs. “Do Photos Show Rioters with Zip Cuffs at US Capitol?” Snopes, January 8, 2021, available at: https://www. snopes.com/fact-check/zip-cuffs-capitol-riots/.

5 U.S.C. § 3331.

Tenn. R. App. P 6(4), available at: https://www.tncourts.gov/rules/supreme-court/6.

Supreme Court of the State of New York, Appellate Division, First Judicial Department, In the Matter of Rudolph W. Giuliani, (June 24, 2021) 2, available at: https://www.nycourts.gov/courts/ad1/calendar/List_Word/2021/06_Jun/24/PDF/ Matter%20of%20Giuliani%20(2021-00506)%20PC.pdf.

Id. at 30-31. A few days later, the DC Court of Appeals suspended Giuliani’s license.

“Rudy Giuliani suspended from practicing law in D.C. court,” Washington Post, July 7, 2021, available at: https://www.washingtonpost.com/local/legal-issues/giulianiwashington-court/2021/07/07/9f7a7f5c-df6a-11eb-9f54-7eee10b5fcd2_story. html.

Tennessee Rule of Professional Conduct 8.4(b) prohibits “conduct involving dishonesty, fraud, deceit, or misrepresentation;” moreover, the Preamble to the RPCs notes 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.”

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify.

January 2022

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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.

COURT NOTICE: KNOX COUNTY GENERAL SESSIONS DIVISION V/CIVIL Effective January 4, 2022: All business coming before Knox County General Sessions Division V/Civil Court will be conducted in the Old Courthouse, 3rd floor Courtroom. Attorneys and litigants should enter the Old Courthouse through the main security portal and proceed upstairs to the third floor Courtroom.

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

OFFICE SPACE AVAILABLE: •

LEWIS THOMASON ANNOUNCES NEW ASSOCIATE Ryan T. Shannon joins Lewis Thomason as an associate. He focuses his practice in the areas of employment law, education law, insurance defense, and general civil litigation. As a student at the University of Tennessee College of Law, Mr. Shannon served as president and secretary of Vols for Veterans, as well as serving on the Career Services Committee. Mr. Shannon graduated from the University of Tennessee, summa cum laude, with a degree in political science.

Existing association of attorneys have available 1-2 office spaces in historical building 1816 Clinch Ave., across from Ft. Sanders Reg. Hospital to include parking spaces, conference room, reception area, receptionist, phone system, internet and Lexis access. Email cburks@ jnblawfirm.com or call (865) 522-4964 for inquires.

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TECHNOLOGY ACCESS PROGRAM SEEKS COMPUTER DONATIONS Recycle computer parts! If you have old computers and/or serviceable peripherals, please consider donating them to the Technology Access Program (TAP). This includes computer towers, hard drives, laptops, monitors, printers, speakers, keyboards, mice (non-rodent), cables, cords, ink cartridges (full & empty), reams of paper, and any other miscellaneous computer related items (including cell phones & tablets). These computers will be used to supply children with a computer system (as long as there is no other computer in the home.) TAP is a totally volunteer organization in Tellico Village. Contact Jim Warner at flyboyjw@aol.com.

1520 Highland Avenue in Fort Sanders Available - The offices are $1,000/month and includes a private office and access to a common area that includes a full kitchen, reception area, conference room and separate client meeting room, plus 1 free parking space in addition to free on street parking. The office is “Class A” space (there’s even a fireplace in the meeting room!) and it would be a great office sharing arrangement for up to 4 people who are starting out. Rent includes utilities, alarm, and internet. Contact Perry Childress at (865) 8032545.

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Private office building for Lease at 5301 Kingston Pike. 1,907 square feet with 2 entrances, 4 offices, 2 conference rooms, and workspace located in the heart of Bearden! Space previously occupied by Landry & Azevedo. Email justin.cazana@avisonyoung.com or call 865-450-8883 for inquiries.

ACTIVE ASSAILANT TRAINING AVAILABLE East Tennessee Valley Crime Stoppers, based out of the Knoxville Police Department, will be bringing the ALICE program, an active assailant preparation training, to the Knoxville area on January 24 and 25. This program is known nationwide for its training of businesses, churches, law enforcement, etc., on what to do in an active shooter/assailant event.

Participating in ALICE Instructor Certification provides you with the training necessary to teach others these lifesaving strategies so that you can instruct the individuals in your organization. ALICE (Alert, Lockdown, Inform, Counter, Evacuate) Training is the leading program for response to violent critical incidents). Learn more at https://web.cvent. com/event/33830074-eb7f-4afd-a8a5-48a9c9492cdf/summary..

Address Changes

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

FREE CLASSIFIEDS AVAILABLE Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates? Click on Public Resources and select “Career Classifieds” from the dropdown navigation.

The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource.

LEGAL HISTORY VIDEOS AVAILABLE In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives

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Courtney L. Cox BPR #: 039596 Franklin & Kyle Elder Law, LLC 4931 Homberg Drive Knoxville, TN 37919-5146 Ph: (865) 588-3700 courtney@franklinkyle.com

Sanjay Raman LaFevor & Slaughter BPR #: 038603 900 S. Gay St., Suite 1704 Knoxville, TN 37902-1859 Ph: (865) 637-6258 sanjay@lafevorslaughter.com

Jacqueline O. Kittrell BPR #: 013578 Community Mediation Center P.O. Box 788 Knoxville, TN 37901-0788 Ph: (865) 594-1879 jackie.kittrell@2mediate.org

Heidi Plehn Wegryn Law Office of Heidi Plehn Wegryn, PLLC BPR #: 017171 404 Ebenezer Road Knoxville, TN 37923-5304 Ph: (865) 622-8121 heidiwegryn@knoxresolve.com

David T. Rakes BPR #: 039377 Clayton Homes 5000 Clayton Road Knoxville, TN 37804-5550 Ph: (865) 380-3607 taylor.rakes@claytonhomes.com

Grant T. Williamson Bradley Arant BPR #: 037944 4823 Old Kingston Pike, Suite 130 Knoxville, TN 37919 gwilliamson@realtytrustgroup.com

January 2022

M I T C H E L L’ S M A L A R K E Y By: T. Mitchell Panter

Lewis Thomason, P.C.

DO YOURSELF A FAVOR: DON’T READ THIS Yeah, I know. I’m not Jason Long. If you read last month’s edition of DICTA, you know that our beloved Jason finally called it quits on his delightful (yet aged) column, Long Winded, after 22 years at the helm.

For reasons I still don’t understand, Marsha asked me to take up the baton. Those of you who know me are wondering the same thing: why this guy? To that I still have no clear answer.

I fully acknowledge that I’m the last person who should be given a platform to speak my mind. Don’t get me wrong. I have lots of thoughts, and I love sharing them. Doing so in such a public way, however, has consequences, and I’m running out of employment options in the Knoxville area. [Thank you again to those who’ve taken me on so far.]

In addition to the professional risks attendant to writing this column, it also comes with potential legal consequences. To my knowledge, as a written trade publication, DICTA is not an FCC-moderated communication. Nevertheless, legal liability likely extends to my preferred use of small but forceful words not usually fit for public consumption—save after 10:00 p.m. and on cable T.V. To that point, and although DICTA’s publication guidelines severely limit my lexicon, and I make no guarantees that my future columns won’t, at a minimum, have placeholders for offensive words that otherwise have no satisfying synonyms.

More important that my professional reputation and personal liberty, I’m afraid of the constant comparison to Jason. That’s a losing game. Jason is an exceptional writer, attorney, leader, father, and friend.

He’s funny. He’s creative. He can tell a story. Meanwhile, I lose thoughts by the second, tend toward See Spot Run constructions, and love a classic fart joke. I stand no chance of living up to Jason’s legacy. Still, when Marsha calls, we answer.

So, in anticipation of writing my first installment in this series, I engaged in a deep, archeological dig of Jason’s columns for inspiration and to see just what did Jason talk about for all those years? It turns out that the answer to that question is pretty simple: nothing, absolutely nothing.

I don’t have a precise number, but I’m comfortable saying that at least forty percent of Jason’s columns began with one of two apologies: (1) one to Marsha for submitting his article after the publication deadline; or (2) one to the readers for having nothing to say. Having reviewed his body of work in close succession, I can also confidently say that Jason and I are kindred spirits in at least one respect: neither of us appear to commence any task until the day of the deadline or, even worse, sometime thereafter [I’m literally writing this at 9:32 a.m. with a 4:00 deadline].

Although Jason described Long Winded as “the ramblings of a desperate man,” which is objectively true, they weren’t all bad. In fact, through those ramblings, Jason shared many poignant moments, filled with candor and good intention. He was often totally and hopelessly January 2022

vulnerable. He’s been brave enough to share his troubles with aging— including the unsolicited receipt of emails for such things as Viagra, Cialis, and hair-loss treatments—and his struggle with body image after his son, James Robert (then 4), unapologetically told him he “has a big belly!”

Amidst those musings, he’s also given practical advice—even touching on matters of public health. For example, in response to the ever-rising cost of healthcare, Jason offered several recipes for low-cost, home remedies that our members could use to treat ailments ranging from the common cold and headaches to asthma and sleeplessness. This article, which remains one of my personal favorites, encouraged readers to consume a cocktail principally composed of dried peacock dung, white wine, and bruised millipedes. Mmmm, doesn’t that sound delicious?

In addition to his health suggestions, Jason routinely encouraged all of us to follow every lawyer’s dream of changing professions.

In one of many articles on this topic—cleverly titled “Brother Can You Spare a Dime?”—Jason made a compelling case that being a lawyer does, in fact, result in some transferrable skills.

For example, he convinced me that being a reality show contestant is a viable option. After all, and as Jason put it, “Odds are you will surrender your dignity to get hired, but a case can be made that [all of us] do that on a daily basis anyway.” So true, Jason. So true.

Thus, while I am not and could never be Jason Long, now having reviewed his body of work, I have grown more comfortable with the idea of writing a monthly column that provides absolutely no benefit— personal or professional—to our members. And although my column may lack the panache with which Jason approaches his work, I can promise that if nothing else, I will use this space to accomplish these tasks: (1) make you dumber; (2) embarrass myself; (3) apologize for missing publication deadlines; and (4) publicly question why I’ve been given this opportunity in the first place. I’ll also do my best to avoid passing along recipes that call for any form of animal feces, although no one can make that guarantee with a straight face. After all, the curative powers and cultural significance of various animal dungs are well documented (thank you, Ace Ventura: When Nature Calls).

To conclude, I’ll leave you with these comments. To Jason: thank you for forging this weird, uncomfortable path and for providing us with a trove of useless knowledge that has no real-life purpose or application.

To Marsha: I understand completely if you want to rescind the invitation to author this column. To the editorial staff: Please reconsider your position on profanity. And most importantly, to our readers: My apologies. You clearly deserve better. But don’t be too discouraged. This won’t last long. I quit most things after (at most) three years. Just look at my resume.

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

PRO BONO SPOTLIGHT By: Caitlin Torney Pro Bono Project Attorney for Legal Aid of East Tennessee

2021 PRO BONO YEAR IN REVIEW 2021 was a year of transitions for the Pro Bono Project: new staff, new and exciting partnerships, new clinics, and new clinic models. After a long hiatus, we cautiously resumed holding in person clinics and it has been wonderful to meet with clients in person. Many volunteers prefer in person clinics, and we intend to hold the majority of clinics in person going forward, with appropriate COVID precautions. While client and volunteer safety remains our top priority, in person clinics play an important role connecting clients and volunteer attorneys as many of our clients struggle with virtual clinic access.

Pro bono cases in 2021 ran the gamut from document preparation for estate planning to helping clients with adoptions, conservatorships, and name changes. In 2021, the Pro Bono Project at Legal Aid in Knoxville placed over a hundred cases with attorneys for full representation and well over a hundred more clients have received advice through clinics. We held nineteen clinics in Knoxville: eleven Legal Advice Clinics for Veterans, four Debt Relief Clinics, two Faith and Justice Clinics, a Legal Advice Clinic for Victims of Domestic Violence, and a specialized Debt Relief Clinic in conjunction with the TVA. Attorney Brent Snyder volunteered for a monthly phone advice clinic to help clients with landlord tenant issues and we look forward to expanding our rotating phone advice clinic roster in 2022. Phone advice clinics provide LAET with an invaluable service by allowing us to schedule clients to speak with an attorney and get person to person advice I would like to recognize all the volunteer attorneys, listed below, who have donated their time and expertise to clients across our service area in the 2021 calendar year. These attorneys have made a profound difference in the lives of Legal Aid clients and I am forever grateful to each and every volunteer. If you are interested in taking pro bono cases, please feel free to reach out to me directly or go to our website, www.LAET.org to check out Pro Bono Matters. I also encourage you to follow us on social media.

Charles Aiken

Emma Drozdowski

J. Herman

Kyle Ray

Edwin Anderson

Matt Duggin

Amy Hess

David Rexrode

Sherri Alley

Kristin Anderson Maha Ayesh

Heather Banks

Newman Bankston Ann Barker

John Barnes

Courteney Barnes-Anderson Kristin Bastian Will Beasley

Ashley Bentley Wade Boswell

Brenda Brooks

Keith Burroughs

Zachary Burroughs Aeriel Carter

Timothy Chambers John Chavis Garry Chin

Arnold Cohen

Mariel Cooper Thomas Cole Bill Coley

Maddie Copes

Dawn Coppock

Amelia Crotwell Devin Devore

Thomas H. Dickenson Ashley Dilley

Taylor Drinnen

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Paul Drozdowski Douglas Dunn David Dupree

Allison Easterday Jenea Easterly

Jennifer Egelston Julie Eisenhower John Elder

Daniel Ellis

Caitlin Elledge Nathan Evans Spencer Fair

Brandon Fersten

Lisa Gammeltoft John Ganem

William Gill

George Gilliam Brooke Givens

Miranda Goodwin

Timothy Grandchamp Maurice K Guinn Scott Hahn

Bryce Hardin

Jaclyn Hardin

Susan Harmon

Matthew Harralson Charles Harrison Viktoria Haynes Joshua Hedrick Ian Hennessey

Daniel Herrera Bennett Hirschhorn Dan W Holbrook Alex Johnson

Celsy Johnson Katlyn Jones

Blair Kennedy Aaron Kimsey Vicki Krusel

Cynthia Lawson Eric Lutton

Brian Mansfield William Mason

Heather McCoy

Patrick McKenrick Ed Meade

Steve Merrit

Kenneth Miller Stacie Miller

Jennifer Morton Brittney Nestor Kevin Newton David Noel

Katheryn Ogle

Rochelle Oldfield Anna Penland

Whitney Pinkney Zachary Powers Chelsea Price

Nicole S. Price

DICTA

Roman Reese Jason Rogers John Rosson Bill Routh

Laura Rudder

Sam Rutherford Brian Sableman Crystal Schrof

Charles Sharrett Michael Shults Eddy Smith

Brent Snyder

Aaron Spencer

Allison Starnes-Anglea Keith Stewart

Garrett Swartwood Lynn Tarpy

William Terrell Derek Terry

Benet Theiss

Matthew Thornton Jackson Tidwell Nella Vargas

George Underwood James Wagner

Forrest Wallace

Robert Weismuller Jennifer White

Robert Wilkinson Laura Wyrick

January 2022

TELL ME A STORY By: Dillon Zinser Law Office of Joshua S. Reed

A PERSONAL CONNECTION I always wanted to be an attorney growing up, but I realize now that I had no idea of what being an attorney actually entailed. Prior to attending law school, I had an abstract idea of what the practice of law looked like. My view of being an attorney was shaped by what I heard from others, and what I had seen on television. The only thing I truly knew was that I wanted to help people and make the world a better place however I could.

My biggest influence in deciding to attend law school was my grandparents: Fernando and Alicia Miranda. My grandparents were born in Cuba in 1912 and 1914. In Cuba, my grandmother was a prosecutor, whereas my grandfather worked in private practice. My grandparents came to the United States with my mom in 1962, following the Cuban Revolution and Fidel Castro’s rise to power. In coming to the United States, my grandparents gave up their legal careers and the lives they had built so that my mom (also named Alicia Miranda) would have a chance at a better life. Both my grandparents passed away when I was young, so they never got to see me become an attorney. There are so many questions I was never able to ask them about their legal careers or the practice of law.

All the same, my grandparents inspired me to follow in their footsteps and taught me that the law was a means of helping others.

When I first began classes at the University of Tennessee College of Law, I did not have any interest in criminal law. My initial plan was to be a civil attorney: doing corporate and transactional work. In my mind, criminal defendants were unsavory individuals that I would be best suited to stay away from. My perspective completely changed after taking classes with Professors Doug Blaze and Dwight Aarons. I understand now just how misguided my old perspective was.

In law school, I was immediately drawn to criminal defense because of the opportunity it provided me to assist people in need. Specifically, I realized that criminal cases are not always cut-and-dry scenarios where one side is good, and the other side is bad. Rather, I realized that criminal cases often involve situations where good people make bad decisions. It only takes one mistake, one bad decision, for any of us to find ourselves entangled in the criminal justice system. In turn, those bad decisions may be based upon a momentary lapse of judgment, or a more prevailing issue in a defendant’s life: such as addiction, or mental illness.

Upon graduating from law school, and becoming licensed in October of 2019, my mission was clear: I was going to be a criminal defense attorney.

A particularly impactful moment in my young career occurred shortly after I began practice in the spring of 2020. The COVID Pandemic was still new, and things seemed to be getting worse by the day. At that time, I was practicing mostly in Blount County, and most of my clients were appointed criminal cases. While much of the workforce January 2022

was confined to their homes, criminal courts were still operating.

Criminal defense attorneys were still going to court, and everyone in the court system was trying to adapt to the unprecedented challenges.

Due to capacity restrictions, private criminal defense attorneys were unable to enter the Blount County Justice Center while court was in session. To address this dilemma, a system was put into place where— during court proceedings— the private attorneys would enter Blount County Jail and go to the jail intake. At the jail intake, there were rows of holding cells where the inmates whose cases were on the docket were kept. Additionally, there were two holding cells that were converted into Zoom rooms. In these Zoom rooms, there were laptops that would broadcast the defense attorneys and their clients to the courtroom.

Through this system, the private defense attorneys would meet with their clients, discuss their cases, and subsequently address the court.

My cell phone did not have reception at the jail intake, so plea negotiations would consist of me having to exit the jail, calling or texting the prosecutor, and then returning into the jail to meet with my client. When I was a law student, I never imagined the practice of law would look like this.

All the private defense attorneys spent countless hours in the jail during that period, and I would often pass the time by talking with my clients. We would obviously talk about their cases, but the longer we were in the jail, the more often the conversations would turn to my client’s lives. They would tell me stories about their families, their children, their significant others. My clients would tell me about what they wanted to do with their lives, and what they planned on doing once they were released from custody. My clients would talk to me about personal subjects in detail: such as their battles with addiction, mental health, and traumas they had experienced. We also, of course, would spend much time talking about the COVID Pandemic. My clients had limited access to information inside of the jail, so they would often ask me about the latest news surrounding the spread of the virus.

The time that I spent with my clients in the Blount County Jail during the early days of the COVID Pandemic taught me firsthand the extent to which society dehumanizes those involved in the criminal justice system. It is far too easy for us to forget that participants in the criminal justice system are real people: not simply figures defined by the accusations brought against them.

Beyond criminal defense practice, attorneys in any field will benefit from connecting with their clients on a personal level. A personal connection with a client can be something as simple as talking to them about their day. We must never forget that behind every case is a person depending on us.

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Prsrt Std US POSTAGE

P.O. Box 2027 Knoxville, TN 37901

KBA Annual Meeting & Elections

The Knoxville Bar Association (KBA) held its Annual Meeting on Friday, December 10, 2021. The President’s gavel was passed from Cheryl G. Rice, a civil litigator with Egerton McAfee Armistead & Davis, P.C., to Jason H. Long, a member of the Knoxville law firm of London Amburn.

President Rice thanked her fellow board members for their support and recognized the KBA staff for their dedication to East Tennessee attorneys, especially during the COVID-19 pandemic. Incoming President Jason Long thanked Ms. Rice for her service to the Association, which included innovative virtual programming, an inaugural Tennis & Pickleball Tournament, and in person events with law students, attorneys, and judges during the last quarter of the year. Mr. Long discussed how his term as President would focus on ways the Association would be opening back up to allow members to reconnect and expand upon the innovative changes made by the Association in adapting to the pandemic.

During the meeting, the following KBA members were elected as officers for 2022: President-Elect - Loretta G. Cravens, Cravens Legal Treasurer - Catherine E. Shuck, East Tennessee Children’s Hospital Secretary – Carlos A. Yunsan, Tennessee Appellate Courts The membership elected the following KBA members to the four open positions on the Board of Governors: Ursula Bailey, Law Office of Ursula Bailey William A. Mynatt, Jr., Lewis Thomason, P.C. Vanessa Samano, Samano Family Law Magistrate Robin Gunn, Knox County Juvenile Court Charles Swanson 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. Swanson has distinguished himself with a long and tremendous career of service to the bar and the community, including serving as City Law Director.

The Presidents’ Award for 2021 was presented to Mohamed Faizer and Carlos Yunsan, the Co-Chairs of the KBA’s Diversity in the Profession Committee. The award for outstanding writing was presented to Ursula Bailey for her article “I AM NOT OK,” which appeared in the August issue of DICTA and Jason Long was recognized for writing his Long Winded column for 22 years.

Chancellor John Weaver was presented with the Courage in the Face of Adversity Award. After facing debilitating injuries to both of his legs, Chancellor Weaver was unable to preside in person in the Part I courtroom.

During his long and painful recovery and rehabilitation, Chancellor Weaver never took his attention off of his judicial duties.

PAID

KNOXVILLE, TN PERMIT NO. 3 0 9