March 2020 = Volume 48, Issue 3

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Practice Tips: Tips on Using an Interpreter . . . Page 9 Schooled in Ethics: KBA Attorney Ethics in 1960 and Today . . . Page 12

A Monthly Publication of the Knoxville Bar Association | March 2020

A Means to an End:

Expanding Public Nuisance Law to Combat 21st Century Problems


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DICTA

March 2020


In This Issue

Officers of the Knoxville Bar Association

COVER STORY

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President Elect Cheryl G. Rice

Treasurer Jason H. Long

Secretary Loretta G. Cravens

KBA Board of Governors Sherri DeCosta Alley Jamie Ballinger Mark A. Castleberry Hon. Kristi Davis

Elizabeth B. Ford Rachel P. Hurt Allison Jackson Elizabeth (Betsy) Meadows Robert E. Pryor, Jr.

Immediate Past President Wynne du Mariau Caffey-Knight

Michael J. Stanuszek Amanda Tonkin Elizabeth M. Towe Mikel Towe

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Jonathan Guess Database Administrator

The New Age Of ADA Title III Accessibility Claims

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Leslie Rowland Programs Administrator

Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org Rebecca Eshbaugh 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 is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Cathy Shuck Executive Editor Chris W. McCarty Executive Editor Melissa B. Carrasco Heidi A. Barcus Sarah Booher Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho

Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Ann C. Short Elizabeth Towe

Managing Editor Marsha Watson KBA Executive Director

DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. March 2020

Schooled in Ethics

DICTA

Legal Update

Tennessee Farmers v. Debruce: A Tort Claimant Is Not A Necessary Party to An Insurance Coverage Dispute Between The Insured Tort Defendant And Their Insurer

WISDOM

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Time Out

Schiff, Sniff, and the Flu

Zachary Powers

Diversity and Inclusion

Julian Blackshear, Jr. Gala

Hank Williams: The Mysterious Death Ride

What’s in a Name?

Change Partners

The Right Reasons

Observations from 2020 Consumer Electronics Show

Born a Crime: Trevor Noah

Of Fingernails and Nipples

The Wonder of Knowledge

“The Fancy Meal”

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15 18 19 21 23

Volume 48, Issue 3

Management Counsel: Law Practice 101

KBA Attorney Ethics in 1960 and Today

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Tracy Chain LRIS Administrator

Practice Tips

Tips on Using an Interpreter

Tammy Sharpe CLE & Sections Coordinator

Judicial News

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Marsha S. Watson Executive Director

President’s Message

Spring into action with the KBA

Tennessee’s Judicial Appointment Process

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The Knoxville Bar Association Staff

A Means to an End: Expanding Public Nuisance Law to Combat 21st Century Problems

CRITICAL FOCUS

5 President Hanson R. Tipton

March 2020

24 25 26 27 28

Hello My Name Is Around the Bar Passing By

Urban Legends

The Noblest Profession Legal Myth Breakers

Outside My Office Window Bill & Phil Gadget of the Month Well Read

Your Monthly Constitutional Long Winded

Barrister Bites

COMMON GROUND 4 20 22 29 30 31

Section Notices/Event Calendar Barrister Bullets Welcome New Members Bench & Bar in the News Pro Bono Project Last Word

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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. Join the ADR Section for the upcoming CLE program “The Ethical & Legal Challenges of Mediating with the Public Sector” on March 2 featuring Joe Jarret. If you have a program topic or speaker suggestions, please contact the ADR Section Chair Betsy Meadows (540-8777) or Daryl Fansler (546-8030). Bankruptcy Law Section The Bankruptcy Section plans regular CLE programs and Pro Bono Debt Relief Clinics throughout the year. Join the Bankruptcy Section for the upcoming CLE program “Update on the Small Business Reorganization Act of 2019” on April 15 featuring Hon. Suzanne Bauknight & Aaron Spencer. The next Pro Bono Debt Relief Clinic will be held on May 9 and volunteer registration is available at www.knoxbar.org. If you have a program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. The section plans regular CLE throughout the year. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) and Sarah Keith (215-2515). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880) and Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service 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. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Hon. Suzanne Bauknight (545-4284) or Ron Mills (215-2050). Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any member licensed since 2018 will automatically be opted-in to the section. If you would like to get involved in planning Section activities, please contact Section Chairs Courtney Walker (292-2307) or Chuck Sharrett (637-0203). Senior Section The KBA Senior Section will meet next on March 11, 2020 at Calhoun’s on the River. See page 23 for details. 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 Chairs Tripp White (712-0963), Mary Miller (934-4000) or Tim Grandchamp (524-1873).

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DICTA

event calendar March

ADR Section CLE n 2 Law Office Tech Committee Meeting n 3 In Chambers: Q&A with Hon. Greg n 4 McMillan n 10 Professionalism Committee Meeting n 10 Access to Justice Committee Meeting n 11 Veterans Legal Advice Clinic n 11 Diversity in the Profession Committee Meeting n 11 Barristers Meeting n 12 Lunch & Learn n 12 Judicial Committee n 17 Knoxville Bar Foundation Meeting n 25 Board of Governors Meeting n 25 Barristers March Madness Social Hour n 31 CLE Committee Meeting

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April

2 Law Practice Today Expo 3 Law Practice Today Expo 6 ADR Section CLE 7 Law Office Tech Committee Meeting 8 Veterans Legal Advice Clinic 8 Diversity in the Profession Committee Meeting 8 Barristers Monthly Meeting 9 Lunch & Learn 9 Judicial Committee 14 Professionalism Committee Meeting 15 Board of Governors Meeting 16 Kick Axe Throwing Tournament

Mark Your Calendar Law Day Luncheon May 1, 2020 March 2020


PRESIDENT’S MESSAGE By: Hanson R. Tipton Watson, Roach, Batson & Lauderback, P.L.C.

SPRING INTO ACTION WITH THE KBA! Ah, Spring in East Tennessee! Two days ago, it was 65 degrees and Knoxville was flooding. Today, I woke up, and there was snow on the ground. While none of us have any idea what to expect from the weather at this time of year, you can count on the KBA to be busy with plenty of events and service opportunities. Here is a small sampling of what YOUR BAR is up to in the coming months: Super-Circulation Issue – This edition of DICTA is one of the three “super-circulation” issues sent annually to all lawyers in the local area, regardless of whether they are KBA members. If you are reading this and are not a KBA member, I hope you will consider joining your local bar association. I truly believe we have the strongest bar association in Tennessee, and your membership would only make us stronger. Please enjoy this issue of DICTA and see what you are missing out on. Candidate Member Survey – I want to thank all of you who participated in the recent KBA Candidate Member Survey for the judicial and justice system-related positions on the March primary ballot. I was pleased with the turnout for the Candidate Member Survey, particularly given that the Survey was new and the March primary ballot contained relatively few positions (Criminal Court Div. II, Public Defender, and County Law Director.) I also want to thank our Judicial Committee for their hard work in creating and administering the Survey. Please be on the lookout for Candidate Member Surveys later this year for the remaining elections of judicial and justice system-related offices. This is a valuable service to both our membership and to the public. An informed electorate is vital to the efficient administration of justice.

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Kincannon. This lunch provides attendees an opportunity to have lunch with a member of the bench outside the courtroom setting and hear a tremendous speaker. I hope you will join us. The Expo offers many different registration options to fit your needs. The All Expo Pass includes admission to Thursday and Friday CLE sessions, the Judicial Roundtable Luncheon, and you will receive copies of the handouts for all twenty-two CLE sessions. If you can’t attend the entire Expo, you can register for a single day or individual CLE sessions. We will also be giving away thousands of dollars’ worth of door prizes, and this year a grand prize winner will take home $1,000 cash. As you can tell, I am excited about Expo, and I hope to see all of you there. Law Day Luncheon – I am also excited about the Law Day Luncheon we have planned for May 1. The ABA’s theme for Law Day this year is “Your Vote, Your Voice, Your Democracy: The 19th Amendment at 100.” In keeping with that theme, the KBA’s Law Day Luncheon will feature a panel discussion of the fight for women’s suffrage and East Tennessee’s important role in that fight, with speakers including Knox County District Attorney General Charme Allen, Tennessee Supreme Court Justice The Hon. Sharon Lee, State Senator Becky Duncan Massey, local attorney Wanda Sobieski, and Tennessee Bar Association Executive Director Joycelyn Stevenson. The panel discussion will be moderated by KBA President-Elect Cheryl G. Rice. I have enjoyed reading recent news items and retrospectives about this year’s celebration of such a milestone event in American history and I am excited to hear what our panel has to say about it.

his is a valuable service to both our membership and to the public.”

15th Annual Law Practice Today Expo – One of my favorite events of every bar year is the Law Practice Today Expo. The 15th Annual Law Practice Today Expo will be held at the UT Conference Center on April 2nd and 3rd, 2020. Our hard-working Law Office Technology & Management Committee has organized a conference that will provide members and their office staff with valuable education on trends and best practices in technology and law practice management, access to legal service providers, and networking opportunities. The Expo gets bigger and better every year, and this year’s Expo promises to be the largest, most interactive Expo to date. This year’s Expo theme is “Technology & Management Best Practices for a Modern Law Office,” and once again we’ve invited some of the best speakers in the country to share their technology tips and offer practice management advice. It really is top-level CLE from nationally-renowned speakers at a price that can’t be beaten. Part of the Expo I look forward to every year is the Judicial Roundtable luncheon. This year’s Luncheon, sponsored by Ritchie, Dillard, Davies, and Johnson, will once again feature more than twenty-five of our local, state, and federal court judges, and our featured speaker will be newly-elected City of Knoxville Mayor Indya March 2020

Nominations for Barristers Law & Liberty Award – Speaking of the Law Day Luncheon, an important part of the Law Day celebration is the presentation of the Law & Liberty Award. The Barristers Constitution Day & School Outreach Committee is now accepting nominations. The deadline to submit a nomination is April 10. Consider those individuals in your firm, in local civic and religious organizations, or in the community who have worked to improve our legal system and protect our civil liberties. Please contact Zack Walden (zwalden@eblaw.us) or Mikel Towe (mtowe@lewisthomason.com) with nominations or if you have any questions. Habitat 2020 – Last but certainly not least, I want to thank our membership for stepping up in a BIG way and fully funding the KBA’s financial commitment to the KBA’s 2020 build for Habitat for Humanity. Many of you donated in memory of Bob Stivers, and what a great tribute to a great man. Next comes the fun part: building a house for a local family! Look out for information about build dates in the coming months. As always, all of these events and more can be found in the Section Notices and Event Calendar on the facing page. Spring is in full swing for the KBA, and I hope to see you out at all of these events and service opportunities, Lord willing and the creek don’t rise!

DICTA

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TIME OUT By: Ann Short The Bosch Law Firm

SCHIFF, SNIFF, AND THE FLU This month, I am writing about misery, fatigue, depression, weakness, and the general rebellion of my respiratory and immune system. In other words, “the flu.” I began feeling ill on a recent Thursday. I worked Friday but did not leave early enough to be seen at the CVS Minute Clinic. Saturday morning, I had trouble getting out of bed, but I managed to shower and drive to the Minute Clinic. Two long cotton swabs up my nose and 15 minutes later, the diagnosis: influenza B. I had just enough energy to make it to Kroger to pick up a prescription for oseltamivir phosphate a/k/a Tamiflu. I also grabbed water, ginger ale, crackers, and Campbell’s chicken noodle soup. Back to the house. Hop into sweat pants and a pullover sweater. The expression, “Death Eating a Cracker,” seemed apt at the time. For the next ten days, my world consisted of my bed, my bathroom, my kitchen, and my television. I kept the television tuned to continuous impeachment coverage. Intelligence Committee Chairman Adam Schiff and Representative Hakeen Jeffries became my favorite House impeachment prosecutors. Sick as I was, I was a semi-captive audience. I suppose I could have changed the television channel or turned off the television. I decided, though, to join the ranks of those who could later say, “I watched it all.” Or, most of it, except when I fell into a blissful sleep for a few hours without constantly coughing. I refuse to comment on or acknowledge White House legal team member Kenneth Starr. Dershowitz was relatively calm, measured, and professorial. The optics worked. I demur on the substance of his argument. For those unable to watch hours of impeachment coverage, the monotonous video feed likely was not very irritating. For me, not so much. The cameras and video feed distributed to the public were controlled by the US Senate and were solely focused on who was speaking, with no shots of the rest of the chamber. Does anyone remember Max Headroom? There were few to no shots of reaction from lawmakers or views of the entire chamber to see if the 100 senators were even at their desks and listening to the evidence or to see how attentive the Chief Justice was. Under different circumstances, watching and listening to some of the arguments would have elevated my stress and irritation levels. Oddly, the fatigue from the flu zapped my energy and, with it, my mental stress. Relaxation, we are told, can reduce stress symptoms and promote a better quality of life, especially if you have an illness. The first step is to acknowledge that you are too sick to perform your normal functions. As a corollary, be considerate enough to realize that no one wants you around if you are too sick to perform your normal functions. Reach out to friends and close colleagues for help. I did, and everyone was gracious and understanding. If you have no friends or close colleagues, then perhaps your problems are more serious than the flu. The second step is to put on your favorite slouchy clothes. Soft fabrics will help you relax. Fleece is great to keep you insulated while whisking away moisture. Don’t forget fuzzy socks. And, remember all those throws you have been gifted with nowhere to put them, get them out and pile them on. This is no time to be fashion conscious. Also, pile on the pillows and elevate your head to reduce nasal congestion. Extra cuddling with your pets is relaxing, and they sense that you need some tender loving care. Third, drink lots and lots of water. Every time you check your email to keep in touch, drink water. Many types of herbal tea can help with congestion. My dear friend, Suzannah, recently introduced me to

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a Starbucks concoction known as the “Medicine Ball.” It is delicious and very soothing to the throat, but beware, it is loaded with 30 grams of sugar. My BFF neighbor rang my doorbell and left a Medicine Ball outside my front door, wisely declining to engage me while I was sick. Fourth, long hot showers and baths. Enough said. Last, choose a low energy activity that you seldom make time to enjoy when you are healthy. Hint: house cleaning and doing laundry do not count. While watching impeachment coverage on television, I grabbed a stack of magazines that I had meant to read. I tore out recipes to try later. I played a lot of solitaire – with real cards. Crossword puzzles. Practiced writing in cursive. I took naps, many, many naps. Nothing I have mentioned above is particularly insightful or novel. Mostly common sense. But what about those times when relaxation is optional, when illness is not the driving force? My takeaway is that nothing prevents me from staying in bed occasionally on Saturday; blowing off my usual errands and cleaning routines; binge watching Academy Award nominated movies; drinking a lot of water (always a healthy things to do); taking a long bubble bath; reading a book; napping in the afternoon; and taking the dog on a long, leisurely walk. I close by thanking everyone who accommodated my illness, covered for me at work, and agreed to reschedule various matters. For those who are currently ill or soon will be, please give yourself a break. Stay at home, relax, and do all the sensible things you should.

DICTA

March 2020


JUDICIAL NEWS By: Cheryl G. Rice Egerton, McAfee, Armistead & Davis, P.C.

TENNESSEE’S JUDICIAL APPOINTMENT PROCESS For many years, judicial selection in Tennessee followed a statutory process whereby the Governor filled judicial vacancies from a list of names selected by a Judicial Selection Commission. This process, which the Legislature modified from time to time over the 30-plus years it was in effect, came to be known as “The Tennessee Plan.” In 2009, the General Assembly replaced the Tennessee Plan with a 17-member, legislatively-appointed Judicial Nominating Commission (“the JNC”), which nominated a panel of 3 candidates from which the Governor would select an appointee.1 A few years later, the legislature chose to sunset the JNC and it ceased operating on June 30, 2013.2 Around the same time, the legislature proposed Amendment 2 to the Tennessee Constitution, which provided for gubernatorial appointment of Supreme Court justices and intermediate appellate judges, followed by legislative confirmation and, thereafter, election by retention vote.3 Amendment 2 was offered to address longstanding controversy and questions over the constitutionality of the Tennessee Plan, specifically, whether the appointment and retention process satisfied the original constitutional requirement that judges be elected. In the November 4, 2014 general election, Tennessee voters approved Amendment 2.4 Since passage of Amendment 2, the legislature has 60 days from the date of a nominee’s appointment (or from the start of the next annual legislative session if the appointment occurs when the General Assembly is not in session) to confirm or reject an appointee.5 Confirmation requires approval by both houses of the General Assembly.6 The TBI performs a financial and criminal background investigation of the appointee, which it provides to the chair of certain standing legislative committees.7 A standing committee hearing may be held, after which the General Assembly meets in joint session to confirm or reject the Governor’s appointee. Confirmation (or rejection) requires a majority vote of each house in favor of (or against) appointment. Rejection also occurs if either house rejects the appointee by at least two-thirds of its members, regardless of the vote of the other house. If an appointee is neither confirmed nor rejected conclusively, successive votes may be taken.8 Failure by the legislature to reject an appointee within the allotted time results in confirmation by default.9 In 2016 the Trial Court Vacancy Commission was legislatively established (“the Trial Commission”).10 It screens applicants to fill vacancies in all trial courts of record and sends three nominees to the governor, who can appoint from that slate or request a new slate of nominees.11

Like the Council, the Trial Commission is composed of 11 members, but is filled by legislative, rather than gubernatorial, appointees.15 Commissioners need not meet geographic requirements except holding Tennessee citizenship16 and serve staggered, six-year terms.17 Seven members of the Trial Commission, including its Chair, must be attorneys.18 The Trial Commission operates akin to the Governor’s Council, with similar timing requirements. Applicants submit similar written applications which are public; public hearings and interviews are conducted; BPR and judicial conduct records are reviewed; and Commissioners deliberate privately but vote publicly by anonymous written ballot. Candidates must receive votes from a majority of the Trial Commission members present and voting in order to be among the three names the Trial Commission submits to the Governor.19 Through this relatively recent series of legislative, constitutional and executive actions, Tennessee currently has a stable process for filling vacancies in its trial and appellate courts. Currently, Tennessee governors remain free to nominate appellate judges and justices in any manner they prefer. Governor Lee has seen fit to maintain a merit selection process for selecting appellate nominees. It appears, for foreseeable future, that merit selection will remain a part of the process for filling both trial and appellate vacancies.

Tenn. Code Ann. § 17-4-101, et seq. (2014). See Sheila Burke, Legislature leaves open question about judges, Knoxville News Sentinel, May 1, 2013. 3 Tenn. Const. Art. VI, § 3 (Revised Nov. 4, 2014). 4 Amendment 2 (2014), BALLOTPEDIA.ORG, http://ballotpedia.org/Tennessee_ Judicial_Selection,_Amendment_2_%282014%29. 5 Id. 6 T.C.A. §17-4-102. t Id. 8 Id. 9 T.C.A. §17-4-103. 10 T.C.A. §17-4-301 et seq. 11 T.C.A. §17-4-308. 12 Exec. Order 54 (May 17, 2016). 13 T.C.A. §17-4-301(a). 14 T.C.A. §17-4-308. 15 T.C.A. §17-4-301(a). 16 T.C.A. §17-4-302. 17 T.C.A. §17-4-301(b), §17-4-305. 18 T. C.A. §17-4-301(a). 19 T.C.A. §17-4-308. 1 2

Upon formation of the Trial Commission, Governor Haslam issued Executive Order 54, which limited the role of his previously created Governor’s Council for Judicial Appointments (“the Council”) to addressing vacancies in Tennessee’s appellate courts, the Workers’ Compensation Appeals Board and the Tennessee Claims Commission.12 Executive Order 54 remains in effect today. The Council is comprised of 11 individuals representing each of Tennessee’s grand divisions (no more than four members hailing from any single grand division). Eight of its members must be attorneys.13 Members are appointed by the governor and serve staggered, two-year terms. The governor selects the Chair annually. The Council has a March 2020

60-day window from receipt of notice of a vacancy from the governor’s office in which to submit a panel of 3 names to the governor for his consideration. Vacancies are announced, posted on the website of the Administrative Office of the Courts and otherwise advertised, and each applicant completes a written, public application. Board of Professional Responsibility and judicial conduct records are provided to the Council, and the Council conducts a public hearing and interview with each applicant. The Council may deliberate privately, but votes by public, but anonymous, ballots. The three candidates receiving the highest number of votes are those submitted to the Governor. A candidate must also receive at least 6 favorable votes from the Council. Additional background investigation of the three nominees is then conducted, after which the governor appoints his selection. The governor may still request a second panel from the Council and, in that event, may choose one individual from either panel.14

DICTA

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

ZACHARY POWERS This month’s q-and-a column features Zach Powers, an attorney at Sobieski, Messer & Elledge. Zach has found his passion in family law, and he relishes his work in representing individuals in difficult times. Without further ado, take it away, Zach!

Where did you complete your undergrad education?

I received my Bachelor’s degree from the University of Tennessee at Knoxville in 2012 where I majored in history and minored in political science. I am a huge history nerd.

Where did you go to law school?

I went to Albany Law School of Union University in Albany, New York, where I graduated in May 2015. My most meaningful experience in law school came when I participated in the Domestic Violence and Immigration Law Clinic. The insight I gained from that experience has proved invaluable. I was also the chief clerk for a small law firm in Albany, NY during my 2L and 3L years.

What do you enjoy most about your job?

I do not know if “enjoy” is the right word, but as someone who went through the trauma of a family break-up as a teenager, I find great fulfillment in guiding and protecting families and individuals who are facing that trauma today.

Give me your picks for the best restaurant or bar in Knoxville.

This is a tough one. My favorite bar in Knoxville (which also just happens to serve some of the most delicious food on Gay Street) is Chivo Taqueria. Coming from an Italian family, my favorite Knoxville restaurant has to be Savelli’s on Sutherland Avenue. Savelli’s has amazing food and a fun atmosphere.

What is your favorite place in East Tennessee?

Townsend. My family has been vacationing there since I was a kid, and there are few things better then unplugging and letting the mountain air clear your head.

Tell me about your family.

My wife Ragan and I have two kids. In our profession, you come to realize how rare it is to find and marry one’s soulmate, but I can safely say I have done so and would not be where I am today without her. We have two beautiful children, Raylan, who is 20 months old, and Ireland, who is almost 6 months old. No, that is not a typo, my wife and I are just starting to remember what a full night’s sleep is like. We also have a crazy lab named Rollo. I consider myself to be the luckiest of men.

Favorite book?

It is probably a tie between The Three Musketeers and The Count of Monte Cristo. They have everything you could want in a book: politics, intrigue, action, romance, etc.

Favorite movie?

Definitely The Boondock Saints. In my opinion, it’s Willem Dafoe’s best performance as an actor.

What’s your binge-watching guilty pleasure?

The Tudors. I already admitted to being a huge history nerd so this should not come as too big of a surprise. I re-watch it at least once a year.

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DICTA

March 2020


PRACTICE TIPS By: Michael Beehan Fox, Willis, Burnette, PLLC

TIPS ON USING AN INTERPRETER Speak Directly to the Person Receiving Translation Services “There is already a disconnect when an interpreter is in the middle of you and your client. When dealing with something personal (which most legal issues do), your client wants to feel that, even if there is a language barrier, they are being directly addressed. Make eye contact with your client, even if they do not understand you. Almost 90% of people look at the interpreter, not the person. Make the person who is listening to the translation feel like they are part of the process. Make it more personal, less distant.”

Schedule Extra Time

“You will be speaking slower and everything you say needs to be interpreted, so your meeting will likely take twice as long. Plan accordingly.” With the foreign born population growing in Tennessee, many more of us will find ourselves using interpreters than before. While Lissie was gracious enough to provide advice for this article, she only provides her interpretations services to the Oak Ridge School System. If you find yourself in need of an interpreter, you can search for one on the Tennessee State Courts website at the address in the footnote.3 When using an interpreter, keep in mind Lissie’s advice. Your client and interpreter will thank you for it. 1 Migration Policy Institute Tennessee Demographics. https://www.migrationpolicy. org/data/state-profiles/state/demographics/TN. 2 Migration Policy Institute Tennessee Demographics. https://www.migrationpolicy. org/data/state-profiles/state/demographics/TN. 3 Find a Court Interpreter, https://tncourts.gov/programs/court-interpreters/find- court-interpreter.

Use Simple Language for Technical Terms

“You have to be aware of your client’s background and education and the extent of their knowledge in their home language. Sometimes, as an interpreter, I need to translate not only language, but technical terms into simple words. It helps when the person speaking English does that for me.”

Give the Interpreter Time to Translate

“Pause every so often to give the interpreter time to speak. I can only retain so much of what is said. One school employee specifically tells people to say 3 to 5 sentences then stop to let me translate, which I am very thankful for.”

Be Empathetic

“Put yourself in your client’s shoes and think how much you would want to know and how would you want the information to be expressed to you, then do that for them. Just because it’s in another language, don’t think you need to keep it short and not share what’s important.” March 2020

DICTA

DICTA is a monthly publication of the Knoxville Bar Association. DICTA is offered to all members of the Knoxville Bar Association as one of the many benefits of membership. This issue represents one of our “super circulation issues” and is sent not only to all members of the Knoxville Bar Association but to all lawyers licensed to practice law in Knox County and all of its contiguous counties, Blount, Loudon, Anderson, Union, and Sevier. DICTA is an important publication to the Knoxville Bar Association and it provides news regarding members and events of the Knoxville Bar Association as well as information on upcoming CLE seminars. It also provides news and notices from the Knoxville Bar Association president, the Barristers, and the Knoxville Bar Association's nineteen different committees and eleven different sections. If you are interested in becoming a member of the Knoxville Bar Association, please contact KBA Executive Director Marsha Watson at 505 Main Avenue, Suite 50, P.O. Box 2027, Knoxville, Tennessee 37901-2027, (865) 522-6522 or access our award-winning website at www.knoxbar.org.

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“Sometimes, people don’t have a clear idea of what they want to communicate, even in their own language. When translating, I have to try to keep the meaning as close as possible to the original language. Even then, the original language has to make sense. When the person speaking English does not have a clear idea of what they want to say, it makes interpreting extra hard.”

EDITORS’ NOTE:

IR S C UP IS UL E S AT R U E IO

Know What You Want to Say

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As of 2017, over 347,000 foreign born individuals lived in Tennessee.1 That population has more than doubled since the year 2000.2 With so many foreign born individuals living and working in Tennessee, the need for legal interpretation services is greater than ever. Some attorneys have already had the opportunity to use an interpreter, and some have not. Whichever camp you are in, it is important to know how best to use an interpreter to communicate effectively with your client whether you are in a consultation, taking a deposition, or in court. Below are six tips from a professional interpreter on how to do just that. Before we dive into those tips, I would like to share a personal story about my own interpreting experience. I moved to Valladolid, Mexico to teach English after graduating from college as a Spanish major. I taught at a university that put on a conference and invited professionals from all over the world to participate. Presentations would be in English and Spanish, and many conference-goers would need translation services. Who better to provide that service than the English teachers, right? At this point, I was a twenty-two year-old with eight years of Spanish classes under my belt. What could go wrong? I went to the first presentation where I had to listen to a presenter in English and simultaneously translate her presentation to Spanish. After about 5 minutes I realized I was still trying to translate her first few sentences. As I desperately fumbled to come up with the right words, I felt sorry for the people relying on my translation. Luckily I had a colleague who took over and saved me. I attempted to do simultaneous translation again at another presentation, this time Spanish to English, and did a slightly better job. Ultimately, it surprised me how mentally exhausted I was after that process. I developed newfound respect for professional interpreters after my experience. I have so much respect for them that I interviewed a professional interpreter for this article: Lissie Meza Beehan (who also happens to be my lovely wife). Lissie and I met while I was teaching in Mexico. We have since moved up to Tennessee. Lissie has spent the past six years as an interpreter for the Oak Ridge School System. Below is sage advice from Lissie on how to work with interpreters.

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March 2020


MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Caitlyn Elam Lewis Thomason

THE NEW AGE OF ADA TITLE III ACCESSIBILITY CLAIMS According to website accessibility company UsableNet’s “2019 ADA Web and App Lawsuit Recap Report,” the filing rate of ADA website lawsuits has not slowed down. UsableNet reports that 2,235 new website accessibility lawsuits were filed in 2019, consistent with similar 2018 numbers.1 While many lawyers traditionally understand Title III of the American’s With Disabilities Act (“ADA”) prohibits discrimination against the disabled in places of “public accommodation,” this new frontier of accessibility on the Internet is difficult to wrap our legal brains around. These “new age” lawsuits have been filed by individuals who suffer from disabilities such as sensory, motor, and cognitive impairments. Websites are being challenged based on characteristics such as: color contrast; failure of photos to contain descriptive text; lack of compatibility with screen-reading devices; and more. Due to the proliferation of these lawsuits and inconsistencies in court decisions, in June 2018, a 103-member, bipartisan group from the House of Representatives sent a letter to then Attorney General Jeff Sessions requesting that the Department of Justice “provid[e] guidance and clarity with regard to website accessibility under the Americans with Disabilities Act or ADA.” The letter highlighted the rapid growth of litigation involving the ADA, website accessibility and the “unclear” statutory authority for applying the ADA to websites. The letter implored the DOJ to “take steps now to state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles in the absence of clear statutory authority and issuance by the Department of a final rule establishing website accessibility standards.”2 In the DOJ’s September 2018 response, it reaffirmed its interpretation that the ADA applied to public accommodation websites and that “the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.” In fact, its letter noted that the DOJ’s failure to adopt a specific nonrequirement left flexibility in how to comply with the “ADA’s general requirements of nondiscrimination and effective communication.”3 Undoubtedly, the DOJ’s refusal to establish clear rule-making has a direct correlation to there being 2,235 new website accessibility lawsuits. Pleas for more guidance have also come from the courts in trying to interpret the proper standards to use in analyzing the accessibility of a website within an ADA context. In Robles v. Domino’s Pizza LLC, the Ninth Circuit analyzed whether a district court erred in dismissing a complaint alleging that Domino’s violated the ADA because its website and mobile app were not fully accessible to a blind or visually impaired person. Specifically, the suit alleged that Domino’s did not allow the use of a particular screen reader and voiceover software.4 The district court concluded that it was necessary for the DOJ to provide regulations and assistance in determining whether a defendant was in compliance with Title III, and it, therefore, invoked the primary jurisdiction doctrine.

In reversing the district court’s decision, the Ninth Circuit held that it did not need the DOJ to enact a rule on this issue – the application of the facts to the case at bar was “well within the court’s competence.”5 Ultimately the Ninth Circuit held that: Properly framed, the issues for the district court to resolve on remand are whether Domino’s’ website and app provide the blind with auxiliary aids and services for effective communication and full and equal enjoyment of its products and services. Courts are perfectly capable of interpreting the meaning of “equal” and “effective” and have done so in a variety of contexts. Whether Domino’s’ website and app are effective means of communication is a fact-based inquiry within a court’s competency.6 While many hoped the U.S. Supreme Court would settle such uncertainty, certiorari was denied.7 In short, it is clear that the courts and the DOJ are in no hurry to give the general public more guidance on how to make their websites ADA complaint. So, what should businesses be doing to attempt website accessibility compliance? UsableNet recommends the following: 1. Create a plan and craft an accessibility statement for publication; 2. Begin remediation of your website through the use of trained professionals; 3. Include members of the disability community in your website development; 4. Use professionals to ensure your website is accessible to the disabled.8 The days of creating your own homepage and using a free website development platform are simply behind us. Taking the time and spending the money to develop an ADA-compliant website is both worth it and necessary in this climate.

“UsableNet Releases its 2019 ADA Web Accessibility and App Lawsuits Report,” UsableNet, https://blog.usablenet.com/usablenet-releases-its-2019-ada-web- accessibility-and-app-lawsuit-report (Dec. 18, 2019). 2 Letter to Attorney General Jeff Sessions from Congressman Budd, (June 20, 2018), https://www.adatitleiii.com/wp-content/uploads/sites/121/2018/06/ADA-Final-003. pdf. 3 Letter to Congressman Budd from Jeff Sessions (Sept. 25, 2018), https://www. adatitleiii.com/wp-content/uploads/sites/121/2018/10/DOJ-letter-to-congress.pdf. 4 Robles v. Domino’s Pizza LLC, No. CV 16-06599 SJO (SPx), 2017 U.S. Dist. LEXIS 53133 (C.D. Cal. Mar. 20, 2017). 5 Robles v. Domino’s Pizza LLC, 913 F.3d 898, 911 (9th Cir. 2019). 6 Id. 7 Domino’s Pizza, LLC v. Robles, 140 S. Ct. 122 (2019). 8 “UsableNet Releases its 2019 ADA Web Accessibility and App Lawsuits Report,” UsableNet, https://blog.usablenet.com/usablenet-releases-its-2019-ada-web- accessibility-and-app-lawsuit-report (Dec. 18, 2019). 1

About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Cathy Shuck at 541-8835. March 2020

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SCHOOLED IN ETHICS By: Paula Schaefer Associate Dean for Academic Affairs & Professor of Law University of Tennessee College of law

KBA ATTORNEY ETHICS IN 1960 AND TODAY My neighbor recently gave me her father’s 1960’s-era Knoxville Bar Association Rule Book.1 The KBA Rule Book includes, among other things, the Canons of Professional Ethics,2 Rules of Practice of Knox County Courts, and the Constitution and Bylaws of the Knoxville Bar Association. The KBA Rule Book provides a fascinating snapshot of ethical practice in our local bar sixty years ago. The ethics nerd in me thinks there is enough material in the KBA Rule Book for several lengthy and fascinating (to me) articles about the evolution of some ethical obligations and the stability of others. In this column, though, I want to write about three aspects of the 1960’s rules that stood out as I flipped through the KBA Rule Book’s pages: civility, advertising, and fees. In many respects, our ethical obligations and practices have changed the most in these areas. Nonetheless, some remnants of the 1960’s rules can be found in our current rules on these subjects. In the following sections, I compare and contrast the Canons of the 1960s and the Rules of today.

Civility and Fairness to Opposing Counsel Several Canons of Professional Ethics addressed a lawyer’s duties of civility and fairness to opposing counsel. For example, Canon 22 stated that a lawyer’s conduct “before the Court and with other lawyers should be characterized by candor and fairness” (emphasis added). Specifically, the rule listed as inappropriate the act of misquoting “the argument of opposing counsel.” Canon 25 was titled Taking Technical Advantage of Opposite Counsel: Agreements with Him. The canon urged that a lawyer “should not ignore known customs or practice of the Bar or a particular Court, even when the law permits, without giving timely notice to opposing counsel.” The Canon also provided that agreements impacting clients should be in put in writing, “but it is dishonorable to avoid performance of an agreement fairly made because it is not reduced to writing.” Finally, “Ill-Feeling and Personalities Between Advocates” was the title of Canon 17. The canon reminded lawyers: “Clients, not lawyers, are the litigants. Whatever may be the ill-feeling existing between clients, it should not be allowed to influence counsel in their conduct and demeanor toward each other.” The Canon stated that “personalities between counsel should be scrupulously avoided” and provided that it was “indecent” in trial “to allude to the personal history or the personal peculiarities and idiosyncrasies of counsel on the other side.” Finally, lawyers were urged to carefully avoid “personal colloquies” with opposing counsel that “cause delay and promote unseemly wrangling.”

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These Canons do not have a modern-day equivalent in the

Tennessee Rules of Professional Conduct (TRPC’s). TRPC 3.3 is the rule that comes closest, in that it has something in common with Canon 22. The current rule explicitly addresses the duty of candor toward the court, but no longer lists a specific obligation to be candid and fair with opposing counsel. The duty of fairness to opposing counsel (and opposing party) is now addressed in TRPC 3.4. But unlike the canons, this rule primarily focuses on fairness in discovery, and includes obligations such as not obstructing access to evidence and not making a frivolous discovery request. Despite a lack of emphasis on civility in today’s professional conduct rules, the Tennessee Supreme Court recently signaled the importance of civility in a 2019 amendment to the oath of admission. The prior oath required attorneys to solemnly swear or affirm “that I will support the Constitution of the United States and the Constitution of the State of Tennessee, and that I will truly and honestly demean myself in the practice of my profession to the best of my skill and abilities, so help me God.” In its September 2019 order, the Tennessee Supreme Court replaced the phrase “and that I will truly and honestly demean myself in the practice of my profession” with the following: “In the practice of my profession, I will conduct myself with honesty, fairness, integrity, and civility.”

Advertising

The Canons prohibited attorney advertising. Canon 27 opened with the line, “It is unprofessional to solicit professional employment by circulars, advertisements, through touters or by personal communications or interviews not warranted by personal relations.” The rule explained that even indirect advertising – such as by providing newspaper comments related to a matter in which the lawyer was involved and other forms of “self-laudation offend the traditions and lower the tone of our profession and are reprehensible.” Such prohibitions on lawyer advertising were found unconstitutional in 1977 in Bates v. State Bar of Arizona.3 The United States Supreme Court held that advertising by attorneys is commercial speech that “may not be subjected to blanket suppression,” but noted that states can restrain attorney advertising that is “false, deceptive, or misleading.”4 The Supreme Court rejected Arizona’s numerous justifications for its advertising ban, including its assertion attorney advertising would have an adverse effect upon attorney professionalism.5 Consistent with Bates, today’s Tennessee RPC 7.1 prohibits false or misleading communications about a lawyer or the lawyer’s services. TRPC 7.2 is titled “Advertising” and permits lawyers advertising through any written, recorded or electronic communication,” subject to (Continued on page 13)

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KBA ATTORNEY ETHICS IN 1960 AND TODAY

(Continued from page 12)

Please contact the KBA office at 865-522-6522 if you have a copy of this Rule Book published in the 1960’s. requirements that include keeping a copy of the ad for two years and not giving anything of value for a recommendation. Thereafter, TRPC 7.3 prohibits in-person solicitation and places limits on written solicitation; TRPC 7.4 addresses how attorneys may and may not communicate fields of specialization; TRPC 7.5 addresses firm names; and TRPC 7.6 deals with the proper use of intermediary organizations (such as lawyer referral services) to obtain legal business.

The Attorney’s Fee Canon 12 and TRPC 1.5 are similar in that both ethics rules describe many of the same (or similar) factors to be taken into account in determining if the fee charged is proper/reasonable, including the time and labor involved, the novelty and difficulty of the questions involved, and the skill required; whether acceptance of the matter will preclude other employment; the fee customarily charged in the bar/locality for similar services; whether the fee is contingent; and whether the lawyer and client have a prior professional relationship. TRPC 1.5 also lists as additional factors: the amount involved and results obtained; time limits imposed; reputation and experience of the lawyer; prior advertisements regarding fees of the lawyer; and whether the agreement is in writing. A lawyer practicing in Knoxville in the 1960’s was given additional guidance regarding his fee in two respects. First, Canon 12 warned the lawyer not to charge too much or too little, not to charge a client too much simply because of the client’s ability to pay, and that a client’s poverty “may require a less charge, or even none at all.” The Canon also urged lawyers to care for other lawyers and their families when providing legal services for them, stating, ‘The reasonable requests of brother lawyers, and of their widows and orphans without ample means, should receive special and kindly consideration.” Canon 12 concluded that in setting the fee, a lawyer should not forget “that the profession is a branch of the administration of justice and not a mere money-getting trade.” Second, a Knoxville attorney in the 1960’s was guided by the KBA’s Minimum Fee Schedule. The two-page “foreword” to the fee schedule explains the “exhaustive study” that went into developing the schedule and the (lofty) goals of a minimum fee schedule. These goals are described in the following statement: It is felt that no profession renders services for which the compensation is as inadequate as it is for the Legal Profession. It is hoped that the Knoxville Bar Association, by soliciting the cooperation of the Knoxville Bar in putting a “floor” under legal fees, will contribute substantially to a better understanding between the public and the profession, will encourage professional services of a higher standard of quality, and will do much toward eliminating indiscriminate “shopping” by the public to obtain legal services, not upon the basis of need, but upon the unreliable and unsatisfactory basis of cost.

The foreword later warned that a lawyer’s failure to follow the fee schedule could cause a number of problems, including “inviting danger, and perhaps disaster, to himself and the profession by encouraging the bargain hunting, shopping type of client, whose primary consideration is price. . .” The minimum fee schedule is seventeen pages long and lists minimum fees for numerous services including: preparation of a simple warranty deed ($7.50); preparation of a simple partnership agreement ($50); chapter 13 bankruptcy ($150); representation in lunacy proceedings ($25 if not contested and $100 if contested); trial per diem in circuit court ($150); contested divorce ($250); and felony defense in state court ($250, but $500 in a capital case). The list goes on and on. The highest minimum fee on the schedule is $1,500 for a hearing in the United States Supreme Court. Of course, there is no minimum fee schedule today. Attorney minimum fee schedules went by the wayside after the United States Supreme Court held that such schedules amounted to price-fixing in violation of antitrust law.6 While today’s Tennessee lawyers are told that we should aspire to render at least 50 hours of pro bono service each year7 and that we should not seek to avoid appointments except for good cause,8 we are no longer asked to give special consideration to the needs of our fellow attorneys or their widows (and widowers).

Sixty Years Later Sixty years later, the ethics rules addressing civility, advertising, and attorneys’ fees bear little resemblance to the Canons. In the case of advertising and fee schedules, the United States Supreme Court is responsible for some of the changes. Other changes are the product of numerous revisions that – whether purposely or incidentally – resulted in the loss of the more colorful language of the canons. Despite these changes, we are still members of an honorable profession. Today’s Knoxville Bar is dedicated to treating one another with civility, charging clients reasonable fees, and advertising legal services honestly.

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The cover says “Knoxville Bar Association” in silver type on a black background. The “book” itself is paper folder with three silver brads that hold the multi-colored sections in place. The Table of Contents notes that the compilation of rules was published in September 1960, and revised in November 1960 and November 1966. The ethics rules are titled “The Cannons of Professional Ethics of the American Bar Association.” The rules contain a note that the vast majority of jurisdictions have adopted these rules “in whole or in substantial part,” but there is no specific reference to Tennessee. 433 U.S. 350 (1977). Id. at 383-84. Id. at 368-72. Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975). See also Stanley D. Robinson, Recent Antitrust Developments: 1975, 76 Colum. L. Rev. 191 (1976) (explaining that the Goldfarb case followed years of uncertainty about whether law, as a learned profession, was exempt from antitrust laws). TRPC 6.1 Pro Bono Publico Service. TRPC 6.2 Accepting Appointments.

If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. March 2020

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L E G A L U P DAT E By: Hannah Lowe Trammell, Adkins & Ward, P.C.

TENNESSEE FARMERS V. DEBRUCE:

A TORT CLAIMANT IS NOT A NECESSARY PARTY TO AN INSURANCE COVERAGE DISPUTE BETWEEN THE INSURED TORT DEFENDANT AND THEIR INSURER In Tennessee Farmers Mut. Ins. Co. v. DeBruce, the Tennessee Supreme Court recently held that a tort claimant who does not already have a judgment against the insured (and consequently cannot bring a direct action against the insurance company) has no interest affected by the dispute between the insurance company and its insured and therefore is not a necessary party to a declaratory judgment action filed by the insurance company against the insured.1 In December 2012, a vehicle operated by Brandon DeBruce was involved in an accident with a vehicle operated by Christina Wright on I-24 in Hamilton County.2 DeBruce was insured under an automobile liability insurance policy issued by TFMIC.3 DeBruce’s wife reported the accident to TFMIC, and it paid for their property damage.4 In December 2013, Wright sued DeBruce in Hamilton County Circuit Court seeking damages for injuries allegedly caused by the collision.5 In September 2014, Wright served DeBruce with the lawsuit.6 He failed to notify TFMIC of the lawsuit.7 In January 2015, TFMIC learned of the lawsuit from Wright’s attorney.8 DeBruce failed to respond to TFMIC’s telephone calls and twice failed to appear for an examination under oath.9 In March 2015, TFMIC filed a declaratory judgment action against DeBruce in Bradley County Chancery Court seeking a ruling that DeBruce had breached the terms of his insurance policy by failing to notify it of the lawsuit and failing to cooperate in its investigation of the accident and defense of the lawsuit.10 TFMIC asked the Chancellor to find it had no duty to defend or indemnify DeBruce in Wright’s lawsuit.11 DeBruce failed to respond to TFMIC’s lawsuit, and in June 2015 the Chancellor granted a default judgment to TFMIC, finding it had no duty to defend or indemnify DeBruce based on his breach of the policy.12 In March 2017, Wright filed a motion to set aside the default judgment under Rule 60.02 of the TRCP and to intervene in the suit, claiming she had a direct interest in the outcome of the case and thus was an indispensable party to the lawsuit.13 The Chancellor denied her motion, finding she was not a necessary party but merely an incidental beneficiary of the insurance contract between DeBruce and TFMIC.14 The Court of Appeals reversed the Chancellor’s ruling, relying upon the Tennessee Supreme Court’s ruling in Commercial Casualty Ins. Co. v. Tri-State Transit Co. of Louisiana,15 in which parties injured in a bus accident who had obtained a judgment against the bus operator in an Arkansas state court were found to be necessary parties to a declaratory judgment action resolving coverage issues between the bus operator and its insurance company.16 The ruling in Commercial Casualty was based in part on the finding that the bus operator was subject to the mandatory provisions of the Federal Motor Carrier Act requiring commercial carriers to maintain liability insurance.17 The Court of Appeals had reasoned that Tennessee drivers are subject to the mandatory provisions of Tennessee Financial Responsibility Law, and under the rationale of Commercial Casualty Wright had a “sufficiently direct” interest in the insurance coverage determination to make her a necessary party to the

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declaratory judgment.18 The Court of Appeals held that without all necessary parties the trial court lacked subject matter jurisdiction over the declaratory judgment action, and therefore its judgment was void and should be dismissed.19 The Supreme Court granted review to determine whether the trial court had abused its discretion in denying Wright’s motion to set aside the declaratory judgment and intervene on the basis that she was not a necessary party.20 On appeal, the Supreme Court reasoned that T.C.A. § 29-14107(a) required all such persons to be made a party to the proceedings, and therefore “Wright’s status as a necessary party hinge[d] on whether she had ‘any interest which would be affected by the declaration.’”21 Thus, “[i]f Wright was an intended beneficiary of the insurance policy, she would have an interest that would be affected” and would therefore be a necessary party.22 The Court reasoned that it must “presume that contracts, including insurance policies, are for the benefit of the parties to the contract and not for the benefit of third parties.”23 The Court further reasoned that a tort claimant could become an intended beneficiary when they obtained a judgment against the insured, as they could then bring a direct action against the insurance company to enforce the insurance contract to satisfy the insured’s obligation.24 However, “[o]n the other hand, a claimant [without] a judgment against the insured has a remote interest that has not accrued into a real interest in the insurance policy.”25 Because Wright’s claim had not been reduced to a judgment, she had no interest that would be affected by the declaratory judgment action; therefore, her joinder would not have prevented the default judgment from being entered against DeBruce, and she was not a necessary party to the determination of the coverage issues between TFMIC and DeBruce.26 In other words, “the justiciable dispute was only between Tennessee Farmers and DeBruce.”27 Thus, the Court of Appeals had erred in relying on Commercial Casualty to find Wright a necessary party, and the trial court did not abuse its discretion in denying Wright’s Rule 60.02 motion to set aside the default judgment and to intervene.28 1 Tenn. Farmers Mut. Ins. Co. v. DeBruce, 586 S.W.3d 901, 903 (Tenn. 2019). The unanimous opinion, authored by Justice Sharon Lee, was issued on October 16, 2019. 2 Id. 3 Id. 4 Id. 5 Id. 6 Id. 7 Id. at 903-904. 8 Id. at 904. 9 Id. 10 Under the Tennessee Declaratory Judgment Act, T.C.A. § 29-14-101 et. seq., the Tennessee courts “have the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” T.C.A. § 29-14-102. 11 Id. 12 Id. (Continued on page 15)

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March 2020


PA S S I N G B Y By: Julia Hale Lewis, Thomason, King, Krieg & Waldrop

JULIAN BLACKSHEAR, JR. GALA

“S

ucceed in spite of your obstacles; not fail because of them.”

Every month, we will be reviewing eateries and attractions that are off the beaten path. This month we will take a detour, as we discuss the 20th Annual Julian Blackshear, Jr. Scholarship Gala. On the evening of February 7th, 2020, supporters of the annual gala from across the state of Tennessee descended upon the Holiday Inn Downtown Knoxville. Every year, the University of Tennessee College of Law’s Black Law Students Association organizes and flawlessly executes this annual event. I have had the pleasure of attending 4 of the past 5 years. Attendees for the 2020 Julian Blackshear, Jr. Scholarship Gala included notable members of not only the Knoxville community, but the greater Tennessee legal community. They included our very own Mayor, Indya Kincannon, the President of the Knoxville Bar Association, Hanson Tipton, and Memphis attorney, Will Perry. The event’s keynote speaker, Isaac Conner (University of Tennessee, College of Law Class of 2003), garnered laughs as well as audible gasps from the audience at various points throughout his speech. He balanced his naturally witty demeanor with thoughtful anecdotes, all while eloquently broaching topics that can often be hard to digest. Mr. Conner touched on the journey of Julian Blackshear, Jr., the third African American to graduate from the University of Tennessee College of Law. Julian Blackshear, Jr. always dreamt of one day becoming an attorney, but his law school classmates tested his

perseverance and resolve to accomplish this goal. They ignored him, sent him forged letters from professors, and even went as far as beginning a petition to segregate him from the rest of the students and limit his ability to access the library. Nevertheless, he persisted and graduated in the top 15% of his class. He desired to succeed despite his obstacles. He did exactly that by not responding to blind hatred and an unfair system with anger, but instead with love, compassion, and unrivaled determination. The evening culminated with Phyllis Nichols, CEO of the Knoxville Area Urban League, receiving the RBJ Campbelle Award, an award named in honor of the first black student to graduate from the University of Tennessee College of Law. In her acceptance speech she challenged the attorneys present in the room with her call to action: “We need more attorneys of color here in Knoxville. You are in a position to make that change happen, through mentorship and providing a clear path to your leadership. Without change, we will continue to lose talented attorneys to other cities, like Nashville and Atlanta.” Mrs. Nichols did not sugar coat her message, and left attendees with food for thought as they ventured home on that cold Friday evening. As both Mr. Conner and Mrs. Nichols mentioned, we have come a long way from the time when Julian Blackshear, Jr. was a law student, but our work is not yet finished. I will forever be thankful that I landed at a firm that supports my participation in these efforts. I am particularly grateful for the leaders at my firm, like R. Loy Waldrop, Rod Fields, and Lisa Cole, who have demonstrated time and time again their commitment to seeing me thrive as an attorney. Thank you to Lewis, Thomason, King, Krieg & Waldrop, PLLC, Bass, Berry & Sims PLC, Butler Snow LLP, and the other law firms that regularly support this event each year. It is always a pleasure to attend and sit amongst my peers. I am already looking forward to the 21st Annual Julian Blackshear, Jr. Gala, and I hope to see you there too.

TENNESSEE FARMERS V. DEBRUCE: A TORT CLAIMANT IS NOT A NECESSARY PARTY TO AN INSURANCE COVERAGE DISPUTE BETWEEN THE INSURED TORT DEFENDANT AND THEIR INSURER (Continued from page 14) 15 16 17 18 19 20 13 14

Id. Id. 146 S.W.2d 135 (Tenn. 1941). Id. at 136-37. Id. DeBruce, 586 S.W.3d at 905. Id. The Tennessee Defense Lawyers Association (TDLA) submitted an amicus brief in support of Tennessee Farmer’s position that a tort claimant is not a necessary party to a declaratory judgment action addressing insurance coverage issues between a tort defendant and their insurer. This author is a current board member of TDLA and participated in the drafting and submission of the amicus brief on behalf of TDLA.

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DeBruce, 586 S.W.3d at 907 (citing T.C.A. § 29-14-107(a)). Id. Id. Id. Id. at 908. Id. Id. at 909. Id. The Court noted that in Commercial Casualty, the plaintiffs had obtained a judgment against the insured, which was “a critical distinction” from Wright, who had merely sued the insured but had not obtained a judgment.

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A MEANS TO AN END: EXPANDING PUBLIC NUISANCE LAW TO COMBAT 21ST CENTURY PROBLEMS Originating from English common law, a nuisance is generally defined as “[a] condition, activity, or situation (such as a loud noise or foul odor) that interferes with the use or enjoyment of property.”1 Traditionally, the public nuisance doctrine was used to deal with smallscale issues, such as noxious fumes affecting a particular community or obstructions of a public highway.2 Although it is one of the oldest common law doctrines, public nuisance is re-entering the legal limelight to reconcile what many consider to be legislative shortcomings in addressing some of our nation’s most pressing issues. Public nuisance law is evolving from a means to deal with localized matters to one that litigants hope will abate problems of a national or global scale, such as climate change and the opioid health crisis.

I. Public Nuisance Law in Environmental Litigation The growing concern surrounding fossil fuel production and the impact it has on the global climate has sparked a new type of environmental lawsuit. Believing that the current federal and state laws do not address the threat of global climate change seriously,3 litigants from around the country are bringing public nuisance claims against fossil fuel companies and utilities, claiming their emissions have contributed to global warming, causing a “substantial and unreasonable interference with and obstruction of public rights and property, including inter alia, the public rights to health, safety, and welfare . . . .”4

B.

Climate-change nuisance litigation following AEP

Since 2017, nine state law nuisance cases have been filed against the top fossil fuel manufacturers, including BP P.L.C., Chevron Corp., Shell Oil Co., and Exxon Mobil. The plaintiffs in each case – private citizens, local organizations, municipalities, counties, and states – allege that the defendants’ fossil fuel activities created a public nuisance in their respective communities. In each of the pending cases, the plaintiffs claim that the defendants’ affirmative actions of extracting and selling fossil fuel products have contributed to global greenhouse gas pollution, thus exacerbating the effects of global climate change, including accelerated sea level rise, increased flooding, frequent drought, and higher temperatures.11 In order to mitigate the damage caused by the nuisance, plaintiffs request both compensatory and injunctive relief, and in some cases, punitive damages.12 Irrespective of the substantive merits, the preliminary question in these cases is whether climatechange claims brought under state nuisance law implicate “uniquely federal interests.”13 As many defendants assert, these claims involve action from global actors – not just those in the United States. Consequently, the defendants wish to proceed in federal court in hopes that the claims are dismissed in accordance with AEP.14

A. American Electric Power v. Connecticut One of the first climate-related nuisance cases arose in 2004 when eight states, one city, and three land trusts sued American Electric Power Company (“AEP”) and several other utilities to enjoin their ongoing carbon dioxide emissions.5 The plaintiffs alleged that these emissions were contributing to global warming and creating a “substantial and unreasonable interference with public rights” in violation of the federal common law of interstate nuisance.6 The Supreme Court, in an 8–0 decision, held that the Clean Air Act displaced the plaintiffs’ federal common law public nuisance claim because the statutory scheme regulated and controlled carbon dioxide emissions.7 Because the Act occupied the legal framework relating to interstate pollution, the Court concluded there was no room for parallel relief through public nuisance law.8 Although AEP effectively eliminates federal common law nuisance remedies, it does not preclude state law nuisance remedies.9 As Justice Ginsburg noted in the unanimous opinion, “the availability vel non of a state lawsuit depends . . . on the preemptive effect of [a] federal Act.”10

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Even if the cases are not dismissed, plaintiffs still have to overcome prevailing precedent relating to the preemption of public nuisance claims. Currently, several circuit courts disagree as to whether the Clean Air Act preempts state law nuisance claims. The Fourth Circuit declines to enjoin public nuisance actions where a defendant is in compliance with federal and state environmental regulations and subsequently issued permits, whereas the Third and Sixth Circuits permit plaintiffs to pursue state law nuisance claims regardless of compliance with federal and state regulations.15 In light of these conflicting circuit opinions and the recent flux of public nuisance cases seeking to address climate change, it is likely that the Supreme Court will enter the fray in the near future to resolve the pressing question of whether the Clean Air Act preempts state nuisance claims. Until that time comes, courts across the country will continue to operate in piecemeal, interpreting and applying the state law nuisance claims on the facts before them.

II.

Public Nuisance Law and the Opioid Crisis

Litigants are also attempting to address the opioid epidemic, which has crippled many communities throughout the country, with nuisance law. Two rulings so far have validated the use of nuisance theory to address the societal effects of this health crisis.

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COVER STORY By: Sydney Nenni Tennessee Valley Authority, Office of the General Counsel*

By: Regina Koho Tennessee Valley Authority, Office of the General Counsel*

A.

The Oklahoma state-court verdict

In Oklahoma, over 18 million opioid prescriptions were written between 2015 and 2018 in a state with merely 3.9 million citizens.16 About 6,000 Oklahomans have died from opioid overdoses since 2000, “with thousands more struggling with addiction.”17 As a result, the state attorney general brought suit against a number of opioid manufacturers on a single legal theory: public nuisance. In a landmark verdict following a 33-day trial, Judge Thad Balkman ruled in the state’s favor, ordering Johnson & Johnson to pay $572 million judgment in damages. (The judge subsequently reduced the amount to $465 million.18) Judge Balkman was persuaded by the state’s nuisance-based theory, finding “that Johnson & Johnson . . . substantially contribut[ed] to an ongoing public health crisis that could take decades to abate.”19 Johnson & Johnson has appealed the ruling, arguing that the judge’s application of public nuisance law was “too broad” an interpretation.20 It contends that the court “[d]isregard[ed] a century of precedent” by ruling “for the first time that nuisance liability extends beyond real property use . . . instead of limiting the state’s claim to . . . alleged[] misleading marketing.”21

B. Summary judgment ruling in federal multidistrict opioid litigation

In September 2019, a month after the Oklahoma verdict was rendered, U.S. District Judge Dan Polster, who is responsible for the multidistrict opioid litigation consolidated in the Northern District of Ohio that includes roughly 2,000 cases, denied the manufacturers’ motion for summary judgment on certain plaintiffs’ public nuisance claims.22 The court found the plaintiffs’ evidence to be “sufficient to raise material issues of disputed facts regarding each essential element of their nuisance claims,”23 including the question of whether the manufacturers “intentionally misrepresented the risks attending opioid use for the purpose of increasing prescription opioid sales.”24 The ruling applies to two plaintiffs in the first federal trial over the opioid crisis25 and “is the latest of several summary judgment orders that Polster has issued ahead of the trial, nearly all in favor of the plaintiffs.”26 It remains to be seen what will ultimately occur in this federal litigation or in the other pending opioid lawsuits around the country, but Judge Polster’s ruling – along with the Oklahoma verdict – certainly put pressure on the opioid manufacturers involved. At least for the moment, March 2020

the expansion of the public nuisance theory has gained traction in this arena.

III. Conclusion Although dealing with wide-ranging societal problems through piecemeal court decisions is a less than ideal way to effectuate change, in the absence of broad legislative efforts, litigants are turning to the age-old legal doctrine of nuisance to combat certain issues. The ultimate success of this theory in the areas of climate change and the opioid crisis remains to be seen, but it is clear that public nuisance law is entering a new era. * Any opinions expressed in this article are those of the author and are not attributable to the Tennessee Valley Authority. 1 Nuisance, Black’s Law Dictionary (11th ed. 2019). 2 See Georgia v. Tennessee Copper Co., 237 U.S. 474 (1915); Pittsburgh, C., & St. L.R. Co. v. Hood, 94 F. 618 (C.C.A. 6th Cir. 1899). 3 According to a 2018 Gallup Poll, approximately sixty-two percent of Americans believe the government is doing too little to protect the environment. See Frank Newport, Americans Want Government to Do More on Environment, Gallup (Mar. 29, 2018), https://news.gallup.com/poll/232007/americans-want-government- more-environment.aspx. 4 Complaint at 69, King Cty. v. BP p.l.c., No. 18-2-11859-0 (Wash. Super. Ct. May 9, 2018); see also Albert C. Lin and Michael Burger, State Public Nuisance Claims and Climate Change Adaptation, 36 Pace Envt’l L. Rev. 49, 92 (2018). 5 American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011). 6 Id. at 418. 7 Id. at 423. 8 Id. at 424. 9 Id. at 429. 10 Id. 11 Complaint at 119, Rhode Island v. Chevron Corp., PC-2018-4716 (R.I. Super. Ct. July 2, 2018). 12 Id. at 120. 13 Notice of Removal at 2, Bd. of Cty. Comm’rs of Boulder Cty. v. Suncor Energy (U.S.A.), Inc., No. 1:18-cv-1672 (D. Colo. June 29, 2018). 14 Notice of Removal at 1, People of the State of California (Oakland) v. BP p.l.c., No. 3:17-cv-06011-JCS (N.D. Cal. Oct. 20, 2017). 15 In North Carolina ex rel. Cooper v. Tennessee Valley Authority, 615 F.3d 291 (4th Cir. 2010), the Fourth Circuit dismissed North Carolina’s state common law nuisance claim against TVA because TVA was operating within the parameters of its state- issued permits. In contrast, in Merrick v. Diageo Americas Supply, 805 F.3d 685 (6th Cir. 2015), the Sixth Circuit affirmed the lower court decision, noting that, under the circumstances presented, state law nuisance claims were not preempted by the Clean Air Act and could therefore proceed under traditional common law requirements. 16 Jan Hoffman, Johnson & Johnson Ordered to Pay $572 Million in Landmark Opioid Trial, N.Y. Times (Aug. 26, 2019), https://www.nytimes.com/2019/08/26/health/ oklahoma-opioids-johnson-and-johnson.html. 17 Id. 18 Steve Metzer, Johnson & Johnson appeals opioid verdict, The Journal Record (Dec. 10, 2019), https://journalrecord.com/2019/12/10/johnson-johnson-appeals- opioid-verdict/. 19 Id. 20 Metzer, supra n.19. 21 Id. 22 In re National Prescription Opiate Litigation, No. 1:17-md-2804, Doc. 2578 (N.D. Ohio Sept. 9, 2019). 23 Id. at PageID# 412992. 24 Id. at PageID# 412991. 25 Amanda Bronstad, Other Opioid Companies Will Face Public Nuisance Claims at Trial, Law.Com (Sept. 9, 2019, 3:13 PM), https://www.law.com/2019/09/09/purdue- other-opioid-companies-will-face-public-nuisance-claims-at-trial/. 26 Id.

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URBAN LEGENDS By: Sarah M. Booher OEB Law, PLLC

HANK WILLIAMS: THE MYSTERIOUS DEATH RIDE On New Year’s Eve 1952, Hank Williams was only five years into his recording career, yet his life was anything but great.1 He had undergone a botched spinal surgery the year before that was aimed at alleviating pain from his undiagnosed spina bifida and a 1951 hunting injury. About six months before, he’d been fired from the Grand Old Opry for habitual drunkenness. His wife had divorced him. And just several days before embarking on this fateful journey, the 29-year-old told his new wife, “I think I see God comin’ down the road.”

give him additional shots. Some say he was so groggy and sickly that the hotel porters had to carry him and set him in the car. Others say he was laughing and joking when he got himself into the Cadillac’s back seat. Still others say he was already dead when his body was placed in the car, making small coughing-like noises produced by an already expired body, and that Carr unwittingly drove him hundreds of miles down the road before realizing his star passenger was deceased. Either way, what is known is Carr was pulled over by a policeman in Blaine when he almost hit the policeman trying to pass another driver. The policeman insisted Carr follow him to the courthouse to be arraigned and pay a fine. Hank never moved from the back seat.

Although his last concert had only had about 130 people in attendance, he was determined to do a “comeback tour” of sorts. Which is why, despite the atrocious winter weather plaguing the southeastern United States at the time, he set out from Montgomery, Alabama, in a baby blue Cadillac convertible with his hired driver, 17-year old Charles Carr. The young driver was home from his first semester at Auburn University. His father was a friend of Hank’s who tried to look after him, so when Hank needed a ride to the evening’s show in Charleston, West Virginia, the elder Carr offered up his own son and a taxi from his fleet to get him there.

I

think I see God comin’ down the road.”

Before they even arrived in Knoxville, they had made such poor time that Hank decided he needed to fly from Knoxville to West Virginia. He was able to get a flight at 3 pm, but weather conditions were so poor that the plane had to turn around mid-flight, wasting several more hours. Carr called Hank’s manager, and the decision was made to cancel the West Virginia show. Instead, Carr would take Williams on to Canton, Ohio, the location of the New Year’s Day show. They stopped in for a brief respite at the Andrew Johnson Hotel, Knoxville’s most luxurious and popular hotel since it opened in 1929. Carr requested the hotel call a doctor to tend the ailing celebrity. He’d had a “mickey” before he left for Montgomery, a chloral hydrate concoction prescribed by his doctor to treat his alcoholism and help him get sober, and bonded whiskey that he bought in Fort Payne. [Unfortunately, in March 1953, government officials discovered his doctor had purchased his medical license by mail for $25, had already done time in Oklahoma for forgery, and was found to be nothing more than an over-prescribing quack who was thereafter promptly returned to jail, but not before he’d tried to squeeze money out of his grieving widow for “unpaid treatment.” Luckily, she refused.]

Believed to have sold over ten million records and written more than one hundred songs during his brief career, the last single released before his death was titled “I’ll Never Get Out of This World Alive.”

1

The hotel’s doctor, rumored to be Dr. P.H. Cardwell, allegedly noted that Hank was fit for travel, despite having hiccups severe enough to cause seizures, and gave him two B12/morphine shots. After staying at the hotel for a few hours and ordering steak dinners from room service, they got back on the road somewhere around midnight. Some accounts say Hank roamed the Market Square area and found another doctor to

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Carr, who died in 2013, was always a very reticent witness in the days and years following Williams’ death. He was long adamant that he stopped somewhere around Bristol, Virginia, for gas and something to eat, but Williams declined food. He said he just wanted to sleep. It wasn’t until Carr stopped in Oak Hill, West Virginia, to pull up the blanket that had fallen off Hank, that he noticed the quiet Hank was cold and rigor mortis had set in. A doctor at the local hospital declared him dead and the local coroner noted hemorrhages in the heart and neck and cited “insufficiency of the right ventricle of the heart” as his cause of death.

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Sources Consulted for this Article: • Jim Tharpe, Hank Williams’ last ride: driver recalls lonesome end (July 2, 2013), available at https://www.ajc.com/entertainment/hank-williams-lastride-driver-recalls-lonesome-end/z25PHuGGGamKmVxEJtM89I/. • H.B. Teeter, Hank Williams had Premonition of Death (originally published January 2, 1953; digital article published September 16, 2017), available at https://www.tennessean.com/story/entertainment/music/countrymile/2019/09/16/hank-williams-ken-burns-country-music-life-and-deathlonesome-singer/2291265001/. • Hardeep Phull, How did country music star Hank Williams really die (March 20, 2016), available at https://nypost.com/2016/03/20/how-did-country-musicstar-hank-williams-really-die/. • Jack McElroy, What happened at the Andrew Johnson Hotel that may have killed Hank Williams? (April 23, 2017), available at https://www.usatoday. com/story/life/nation-now/2017/04/23/did-andrew-johnson-hotel-kill-hankwilliams-sr/100825596/. • Johnny Damm, Editor’s Corner: Stalking History on the Hank Williams Death Ride, available at http://www.abadpennyreview.com/editors-corner-stalkinghistory-on-the-hank-williams-death-ride/.

March 2020


THE NOBLEST PROFESSION By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.

WHAT’S IN A NAME? Isaac T. Hopper was a family man. He and his first wife, Sarah, had twelve children, eight of which survived childhood.1 He and his second wife, Hannah had another four children, but only two survived their preschool years.2 It was a struggle to support such a large family on a tailor’s income, but somehow Isaac managed. In fact, one would think Isaac would have had his hands full keeping his large family fed and clothed in the bustling city of Philadelphia, but that is not quite true. Isaac had a not-so-secret pastime. He kept showing up at the courthouse for very specific cases. One such case involved a twenty-nine-year-old mother of two children. She was arrested after spending thirteen years as a fugitive from the law for a crime committed when she was sixteen years old. Three witnesses travelled a great distance to testify against her. There were no flaws in their testimony. In fact, she privately confided in Isaac that she was guilty of the crime of which she was accused. Her fate seemed certain. Her past had finally caught up with her.3 However, Isaac could tell that this woman was more than a criminal. You see, her crime was that she ran away. She was born on a Virginia plantation in 1779, right in the middle of the Revolutionary War. At the age of 16, her master sold her to a speculator who was heading South. She was quite beautiful, and she knew from the way that the new master treated her that he had the most degrading intentions for her.4 So, she ran. She ran all the way to Philadelphia, where she lived for the next thirteen years. She got married to a carpenter, and they had two children, a boy and a girl. They built a house and furnished it with simple, but neat furniture. “By united industry and frugality,” they managed to build a happy life for themselves and their little family.5 All of that was shattered when she was arrested by her master as a fugitive slave. Isaac Hopper heard of her plight, and he went to her aid. First, he tried to buy her freedom. In the early 1800’s tradesmen such as Isaac earned around $1.00 per day, and Isaac had 10 children to support on that income.6 That did not matter to Isaac. He offered $100. The man refused. He offered $400, “but he stopped all further discussion by declaring with violent oath, that he would not sell her on any terms.”7 And so, they waited for the trial. The trial opened with the Magistrate asking the accused if she was a slave. Isaac Hopper objected to her answering the question unless the magistrate was willing to accept her testimony on all other matters. The Magistrate refused. So, Isaac began his opening remarks: The most honest witnesses are often mistaken as to the identity of persons. It surprises me that the witnesses in this case should be so very positive, when the woman was but sixteen years old at the time they say she eloped, and such a long period has since elapsed. The question at stake is as important as life itself to this woman, to her honest husband, and to her poor, little innocent children. For my own part, I conscientiously believe she has a just claim to her freedom.8 The trial went into the afternoon, and when, everyone returned from lunch, Isaac noticed that the magistrate seemed tired. So, he moved to adjourn, and he and another man, Thomas Harrison, personally agreed “to be responsible the United States for this woman’s appearance March 2020

tomorrow.” The Magistrate agreed, provided that Isaac and Thomas signed a bond for $1,000. Isaac and Thomas agreed and signed the recognizance.9 The next morning at 9:00 a.m., everyone appeared at the courthouse. . . except the woman. After waiting an hour, the Magistrate declared that the Isaac and Thomas had forfeited their $1,000, to which Isaac replied, “A thousand dollars is a large sum to lose . . . but if it comes to the worst, I suppose we must make up our minds to pay the United States all the claim they have upon us.”10 That set everyone off. You see, the Magistrate had written the bond exactly as Isaac had stated – that he and Thomas would be “responsible to the United States . . .” not to the state, not to the plaintiff.11 They called in another lawyer. There were lots of arguments. But, in the end, no one in that courtroom had the authority to collect the $1,000 from Isaac and Thomas because the bond clearly said it was in favor of the United States.12 The slaver was furious, and he hunted for the woman for days. Eventually, he went back to Isaac and agree to sign a deed of manumission for $400. Isaac replied, “At one time, we would gladly have given that sum; but now the circumstances of the case are greatly changed, and we cannot consent to give half that amount.” However, after some wrangling, Isaac agreed to pay $150 for her freedom, and the angry man headed back to Virginia.13 That is just one story. For over 40 years, Isaac T. Hopper, father, tailor, and part-time lawyer, was credited with helping over 1,000 people find their way from slavery to freedom. Sometime, that meant opening the door of his home to a stranger’s knock in the middle of the night. Sometimes, that meant negotiating the price of freedom with an angry slave hunter. Sometimes, that meant heading to Court to be a zealous advocate. Isaac was willing to do whatever it took.14 Under Article I of the United States Constitution titles of nobility cannot be granted either by the United States or by any of the states. However, Isaac Hopper shows that titles really do not matter. Those who are noble will find a way to do noble things, whether their title is dad, tailor, or lawyer. 1 Celia Cost-Ellenbogen, Isaac T. Hopper, Quakers & Slavery, Swarthmore College, http://web.tricolib.brynmawr.edu/speccoll/quakersandslavery/commentary/people/ hopper.php (last visited Feb. 8, 2020). 2 Id. 3 L. Maria Child, “The United States Bond,” in Isaac T. Hopper, 149-57 (1854) available at https://www.encyclopediavirginia.org/_The_United_States_Bond_an_ excerpt_from_Isaac_T_Hopper_by_L_Maria_Child_1854. 4 Id. at 150. 5 Id. 6 See U.S. Dept. of Commerce, Historical Statistics of the United States, Colonial Times to 1970, p. 181, available at https://babel.hathitrust.org/cgi/pt?id=uiug. 30112104053548&view=1up&seq=1. 7 Child, supra n. 3 at 151. 8 Id. at 151-52. 9 Id. at 153. 10 Id. 11 Id. at 154. 12 Id. 13 Id. at 155. 14 Celia Cost-Ellenbogen, supra n. 1

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barrister bullets BARRISTERS MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of the month at the Bistro by the Bijou (807 South Gay Street). Social time begins at 5:00 p.m., and the meetings begin promptly at 5:15 p.m. The next meeting will be held on March 11, 2020. There are many opportunities to get involved, and you are encouraged to contact Barristers President Allison Jackson (ajackson@emlaw.com) or Vice President Amanda Tonkin (Amanda.Tonkin@ssa.gov) for more information. AXE THROWING TOURNAMENT Please join the KBA and the Barristers for the first ever “KICK AXE” Axe Throwing Tournament on April 16, 2020, from 5 p.m. – 9 p.m. at Craft Axe Throwing (119 W. 5th Avenue Suite 150, Knoxville, TN 37917). Registration is open to all KBA members, law students, family and friends. Pricing is $135 for a team of up to 4 players, or $10 for spectators watching the tournament but not participating in axe throwing. The registration fee includes heavy appetizers and nonalcoholic beverages, and a cash bar will be available. Register by clicking April 10 in the event calendar at www. knoxbar.org. LAW & LIBERTY AWARD NOMINATIONS - DEADLINE: APRIL 10, 2020 The Barristers Constitution and School Outreach Committee is seeking nominations for the Law & Liberty Award. The deadline to submit a nomination is April 10, 2020. The recipient should be visible to the legal profession and local bar association. The recipient should strive to foster and to maintain good relationships between the legal profession and the community, work to advance the understanding of the law and legal processes in the non-legal community, set an example of good citizenship, make time for volunteer work within the legal profession and otherwise, evidence high professional standards, express concern for the safeguard of personal, political, civil, and religious liberties, and be someone whose work is not normally recognized. Nominees do not have to be attorneys to qualify for the Law and Liberty Award. Consider those in your firm, local civic and religious organizations, or the community who have worked to improve our legal system and protect civil liberties. Please contact the committee’s co-chairs, Zack Walden (zwalden@eblaw.us) or Mikel Towe (mtowe@lewisthomason.com) with nominations or questions. LAW SCHOOL MENTOR The Law School Mentor Committee held the Mock Interview Program at UT College of Law and LMU Duncan School Law over the course of eight days in January 2020. We were able to conduct the mock interviews with the assistance of numerous volunteers, and the Law School Mentor Committee would like to thank all of the volunteers for lending your time and efforts to this program.

Please be on the lookout for additional information closer to the drive. Please contact the committee’s co-chairs, Meagan Collver (MDavisCollver@londonamburn.com) or Chuck Sharrett (CSharrett@londonamburn.com) with any questions. SOCIAL HOUR Please join the KBA for the Barristers March Madness Happy Hour on March 26, 2020, from 6 p.m. - 8 p.m. at Hops and Hollers (937 N Central St. Knoxville, TN 37917). This is a great opportunity to network, meet new faces, and get involved, so join us! Register online by clicking March 26 in the event calendar at www.knoxbar.org. TBA YLD The TBA YLD is seeking attorney volunteers for the Tennessee High School Mock Trial Tournament. The state competition will be held in Nashville on March 20-21, 2020. Attorney volunteers will score rounds, and law students and paralegals will serve as bailiffs. If interested in volunteering, please contact Kati Sanford Goodner (kgoodner@lewisthomason.com) or Zack Walden (zwalden@eblaw.us). VETERANS’ CLINIC The Veterans’ Legal Advice Clinic is a joint project of the KBA/ Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox County Public Defender’s Community Law Office, the 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. We serve approximately twenty to thirty veterans each month who have a variety of legal issues, including, but not limited to, family law, landlord/tenant, bankruptcy, criminal defense, consumer protection, contract, child support, and personal injury issues. We need attorney volunteers for the next two (2) clinics, which will be held on March 11 and April 8 from 12:00 to 2:00 p.m. at the Knox County Public Defender’s Community Law Office (1101 Liberty Street). Register to participate by clicking on March 11 or April 8 on the Event Calendar at www.knoxbar.org. VOLUNTEER BREAKFAST The Volunteer Breakfast occurs on the 4th Thursday of every month at 6:15 a.m. at the Volunteer Ministry Center (511 N. Broadway). The Barristers Volunteer Breakfast Committee always need volunteers to serve food or sponsor. The cost is $150 for sponsoring, and we need 4-5 volunteers. If you are unable to fund the breakfast, the Barristers will subsidize the cost of the breakfast. We meet at 6:15 a.m. and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30 a.m. It’s a great way to serve the community! Please contact Matt Knable (knablelaw@gmail. com) or Mitchell Panter (mpanter@lewisthomason.com) for more information.

MOCK TRIAL The Mock Trial Committee would like to send a big thank you to everyone who volunteered in the Mock Trial competition February 21st-23rd. Special thanks goes to Judge Deborah C. Stevens for presiding over the final round. We would also like to thank Judicial Clerk Esther Roberts for assisting with arranging and securing the Knoxville City County Building facilities and Director of Career Services, Allison Starnes-Anglea, of Lincoln Memorial Duncan School of Law for facilitating and hosting the final round. PROFESSIONAL CLOTHING DRIVE The KBA Barristers Hunger & Poverty Relief Committee’s Annual Professional Clothing Drive will be April 6-20, 2020.

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March 2020


LEGAL MYTH BREAKERS By: Brad Fraser Leitner Williams, Dooley Napolitan, PLLC

By: Jennifer Franklyn Leitner Williams, Dooley Napolitan, PLLC

CHANGE PARTNERS During Stephen Stills’ multi-decade career,1 his career skyrocketed when Crosby, Stills, Nash & Young played only their second gig together at Woodstock in 1969.2 Stephen Stills is also the only person to have been inducted twice in one night into The Rock and Roll Hall of Fame.3 His second solo album included the song, “Change Partners,”4 which always intrigued me. While the song echoes the ritual of country club dances, it feels like it is really about the changes in society: increased frequencies of divorce and other transitions that occurred more increasingly in the 1960s and 70s.5 Relationships won’t last - eventually, it will be time to change partners. After being a partner (more precisely, member) of a law firm for the past 13 years, I appreciate the song on another level. The fact is, most partnerships break up. Over time, due to attrition, disagreements, and just life, partners leave firms.6 The Rules are generally clear about the client-centered approach for a partner leaving a firm. Clients get to decide who their lawyer will be.7 But consider the case when a lawyer leaves the firm but does not take the file with him. Generally, the ethical rules are no longer an issue. But occasionally, a lawyer leaves the firm to go to a firm that has a currently pending suit against a client that was formerly represented by that lawyer – and that’s when things can get complicated. The issue of whether a member of the departing partner’s firm should be disqualified and required to withdraw as counsel is covered specifically in the Tennessee Rules of Professional Conduct Rule 1.10. Subsections (b) and (c) cover the steps to create an “ethical wall”8 to protect the client. RULE 1.10 Imputation of Conflicts of Interest: General Rule b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by RPCs 1.6 and 1.9(c)that is material to the matter. c) Except with respect to paragraph (d) below, if a lawyer is personally disqualified from representing a person with interests adverse to a client of a law firm with which the lawyer was formerly associated, other lawyers currently associated in a firm with the personally disqualified lawyer may represent the person, notwithstanding paragraph (a) above, if both the personally disqualified lawyer and the lawyers who will represent the person on behalf of the firm act reasonably to: (1) identify that the personally disqualified lawyer is prohibited from participating in the representation of the current client; and (2) determine that no lawyer representing the current client has acquired any information from the personally disqualified lawyer that is material to the current matter and is protected by RPC 1.9(c); (3) promptly implement screening procedures to effectively prevent the flow of information about the matter between the personally disqualified lawyer and the other lawyers in the firm; and (4) advise the former client in writing of the circumstances that warranted the implementation of the screening procedures required by this Rule and of the actions that have been taken to comply with this Rule.9

However, subsection (d) of the Rule sets forth a very important concept, for which an ethical wall will not suffice: (d) The procedures set forth in paragraph (c) may not be used to avoid imputed disqualification of the firm, if: (1) the disqualified lawyer was substantially involved in the representation of a former client; and (2) the lawyer’s representation of the former client was in connection with an adjudicative proceeding that is directly adverse to the interests of a current client of the firm; and (3) the proceeding between the firm’s current client and the lawyer’s former client is still pending at the time the lawyer changes firms.10 As set forth in bold type above, if the departing attorney was substantially involved in the representation of the party in the specific matter, representation of the party was in connection with the attorney’s new employer, and the underlying action or proceeding between the parties is still pending, this creates a conflict.11 Advisory comment 9 to Rule 1.10 provides further explanation and rationale for conflicts such as this one: The “appearance of impropriety” standard existing under the Code of Professional Responsibility has not been retained in these rules. Paragraph (d), however, restates the rule of law established by Clinard v. Blackwood, 46 S.W. 3d 177 (Tenn. 2001). In that case, the Tennessee Supreme Court held that screening mechanisms were generally not effective to avoid imputed disqualification of a law firm when a lawyer was perceived as “switching teams” in the course of pending litigation. Although the holding of Clinard was grounded in the prior standard from the Code of Professional Responsibility guarding against the “appearance of impropriety,” the Court also noted that its holding was necessary to further lawyerclient communication and to avoid the impression that the judiciary favors considerations of lawyer mobility over those of client confidentiality. Consequently, the Clinard rule continues under the present Rules. As was the case in Clinard, this narrow exception to paragraph (c) will vicariously disqualify the law firm only when the interests of a client of that firm are presently and directly adverse with those of a person who was formerly represented in substantial part by the disqualified lawyer.12 Although Clinard adopted the common law rule established prior to Tennessee’s adoption of the current Rule 1.10,13 the conclusion remains the same and is unmistakably clear. I miss many of my former partners who have moved on to new endeavors. But I can say this: No matter the situation, the interests of the client always came first.

All Music, https://www.allmusic.com/artist/stephen-stills-mn0000021744/biography, accessed Feb. 7, 2020. 2 Mark Bannerman, Drugs, betrayal, paranoia and the rise and demise of Woodstock icons Crosby, Stills, Nash and Young, https://www.abc.net.au/news/2019-08-14/ crosby-stills-nash-and-young-woodstock/11405986 (Aug. 13, 2019), accessed Feb. 7, 2020. 3 Newsday, Rock and Roll Hall of Fame musicians inducted more than once, https:// www.newsday.com/entertainment/music/rock-and-roll-hall-of-fame-musicians- inducted-more-than-once-1.7652962, accessed Feb. 7, 2020. 4 All Music, https://www.allmusic.com/artist/stephen-stills-mn0000021744/ discography, accessed Feb. 7, 2020. 5 The Washington Post, 144 years of marriage and divorce in the United States, https://www.washingtonpost.com/news/wonk/wp/2015/06/23/144-years-of marriage-and-divorce-in-the-united-states-in-one-chart/, accessed Feb. 7, 2020. 1

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March 2020

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WELCOME NEW MEMBERS

THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS: NEW ATTORNEYS Katrina Atchley Arbogast Great West Casualty Company F. Shayne Brasfield Sherley E. Cruz University of Tennessee Mary H. Dyer The Law Offices of James A.H. Bell, P.C. William H. Estes Estes & Kennedy Law Offices, PLLC Andrew C. Fels Lincoln Memorial University - Duncan School of Law Jackson M. Fenner Fenner Law Firm

Address Changes Ronald J. Attanasio BPR #: 011393 Sharp & Attanasio 625 Market St., 3rd Floor Knoxville, TN 37902-2212 Ph: (865) 971-4040 ron@sa-tnlaw.com

John G. Brock BPR #: 017901 Brock Shipe Klenk PLC 265 Brookview Centre Way, Suite 604 Knoxville, TN 37919-4066 Ph: (865) 338-9700 jbrock@bskplc.com Deborah L. Buchholz BPR #: 024088 Brock Shipe Klenk PLC 265 Brookview Centre Way, Suite 604 Knoxville, TN 37919-4066 Ph: (865) 338-9700 dbuchholz@bskplc.com Christopher T. Cain Lacy, Price & Wagner, PC 249 North Peters Road, Suite 101 Knoxville, TN 37923 (865) 246-0800 Chris@lpwpc.com

CHANGE PARTNERS

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J. Patrick Henry Law Office of J. Patrick Henry

Ryan P. McMillan Greg Coleman Law P.C.

Marika J. Hodge District Attorney General, 6th Judicial District

Andrew W. McRee Lincoln Memorial University - Duncan School of Law

April C. James Lincoln Memorial University - Duncan School of Law

David F. Peeples Torres Law Firm PLLC

Rachel S. Lambert District Attorney General, 6th Judicial District

Rebecca L. Walker Young, Williams & Ward, P.C.

Ralph M. Maylott Law Office of Ralph M. Maylott

NEW LAW STUDENT MEMBERS Kasey Ankrom Konner Brabson Robert L. Chesser Samantha N. Fugate Ira Lee Bridget Miracle Sanjay Raman Elizabeth E. Salyers Tyler Sanderlin

Heather N. McCoy McCoy and McCoy Law Office Rebecca C. McCoy McCoy and McCoy Law Office

Please note the following changes in your KBA Attorneys’ Directory and other office records: Megan D. Duthie BPR #: 035699 Broadway Electric Service Corporation 1800 N. Central St. Knoxville, TN 37917-5411 Ph: (865) 542-1851 megandduthie@gmail.com R. Cuyler Haskins BPR #: 035172 Brock Shipe Klenk PLC 265 Brookview Centre Way, Suite 604 Knoxville, TN 37919-4066 Ph: (865) 338-9700 chaskins@bskplc.com LuAnn A. Hileman BPR #: 032169 Melrose Title Company 151 Major Reynolds Place, Suite 102 Knoxville, TN 37919-4853 Ph: (865) 694-1400 luann@melrosetitleco.com John A. Lucas BPR #: 011198 Brock Shipe Klenk PLC 265 Brookview Centre Way, Suite 604 Knoxville, TN 37919-4066 Ph: (865) 338-9700 jlucas@bskplc.com

Katie B. Moore BPR #: 037959 Tennessee Valley Title Insurance Inc. 800 S. Gay Street, Suite 1700 Knoxville, TN 37929-9707 Ph: (865) 523-6254 Kmoore@tnvalleytitle.com James S. Sharp, Jr. BPR #: 015018 Sharp & Attanasio 625 Market St., 3rd Floor Knoxville, TN 37902-2212 Ph: (865) 971-4040 steve@sa-tnlaw.com Alexander J. Winston BPR #: 033632 InhabitIQ 11121 Kingston Pike, Suite E Knoxville, TN 37934-2864 Ph: (865) 804-0999 alex.winston@inhabitiq.com

(Continued from page 21)

Eli Wald, Lawyer Mobility and Legal Ethics: Resolving the Tension between Confidentiality Requirements and Contemporary Lawyers’ Career Paths, 31 J. Legal Prof. 199 (2007) (“Chief Justice Rehnquist observed that ‘[p]artners in law firms have become increasingly ‘mobile,’ feeling much freer than they formerly did and having much greater opportunity than they formerly did, to shift from one firm to another and take revenue-producing clients with them.’”). Clinard v. Blackwood, 46 S.W.3d 177, 183 (Tenn. 2001). “Ethical wall” is defined by Black’s Law Dictionary as: “A screening mechanism maintained by an organization, esp. a law firm, to protect client confidences from improper disclosure to lawyers or staff who are not involved in a particular representation. The screening mechanism is designed to prevent lawyer or law-firm disqualification from certain representations because of conflicts of interest, as when a newly hired lawyer previously worked for an opposing party. – Also termed screening mechanism; Chinese wall; firewall.” Black’s Law Dictionary (11th ed. 2019).

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Tenn. Rules of Prof’l Conduct R. 1.10(b), (c). Tenn. Rules of Prof’l Conduct R. 1.10(d) (emphasis added). Cavender v. U.S. Xpress Ent., 191 F.Supp.2d 962, 967-68 (E.D. Tenn. 2002) (quoting Penn. Mut. Life Ins. v. Cleveland Mall Assoc., 841 F. Supp. 815, 817 (E.D. Tenn. 1993) (“For all practical purposes, the lawyers have switched sides. Clients must feel free to share confidences with their lawyers. This will not occur if we permit lawyers to be today’s confidants and tomorrow’s adversaries”). Tenn. Rules of Prof’l Conduct R. 1.10, cmt. 9. Clinard, 46 S.W.3d 177, 186 n. 7 (“Our adherence to the appearance of impropriety standard arises from application of the current version of the Tennessee Code of Professional Responsibility”).

March 2020


OUTSIDE MY OFFICE WINDOW By: Robbie Pryor Pryor, Priest & Harber robertpryorjr.blogspot.com

THE RIGHT REASONS Since I’ve divulged almost every other aspect of my life in these pages, I might as well tell you my deepest, darkest secret. On the latest episode of The Bachelor, Peter was really up against it. He had two girls who were bad-mouthing each other, and he didn’t know who to believe. Tammy said Mykenna was not there for “the right reasons.” This is a phrase used to mean that the offender has a personal business agenda to be satisfied by the publicity of the show rather than a desire to find ever-lasting love within the short time the show is filmed. Peter sent them both home! It was totally awesome! For those of you who might be living under a rock, The Bachelor is an ABC franchise that garners millions of viewers. It is a silly show based on a ridiculous premise - a young man is introduced to a bunch of women who are all wanting to date and marry him. The show takes place over many weeks and several exotic locations. It is ridiculous, mind-numbing, and stands as direct evidence that the world is coming to an end. If you are wondering how it is that I know so much about it, including the lingo, it is simply because I love the show. There. I said it. Well, I wrote it. I’ll never discuss this in public. I’ve never missed an episode. Let me explain. Please. In January of 2002, I married a wonderful woman. On the heels of my first wife’s death, I was convinced that I would never be happy again. Like any couple, Cheryl and I had our shows and favorite movies. We had things we liked to do together. She and I had been high-school sweethearts, dated through college and married before I went to law school. The roots were deep. Cheryl and I watched ER, Seinfeld (Shelby’s birth actually interrupted a great episode), Friends, and loved to watch movies after getting our two young kids to bed. After her untimely passing in 2000, I couldn’t watch the old shows, and I was, at that time, consumed with video cassettes of Toy Story, Thomas the Tank Engine, and Barney. In fact, I still cannot bring myself to watch any Toy Story beyond the second installment. My heart may never be that strong. Andy, who was barely a toddler at the time of his mother’s death, watched Toy Story 1 and 2 over and over in those days, days in which I was trying to find my footing in the world. Life had abruptly changed. Then, in early 2002, life changed again. The first two months of blending a new family were exhausting. Nancy and I consulted family psychologists and others on how to manage our transition. We each brought two children to the marriage. At the time of our vows, we had four young children in our home on almost every week night. We immediately began falling into the routines of family life - eating dinner, getting kids to take baths, completing homework, and tucking them all in to bed. It was not an easy transition. By the time we got everyone in bed we were mentally and physically exhausted. One night, my new bride said, “I want to try this new show.” I was curious. “What new show?” I asked. “The Bachelor.” I’d heard of it and seen the commercials. It looked stupid. It still looks stupid. Naturally, I was against it. I told her that we would only get dumber each minute we watched and that our time would be better spent reading, watching something else or watching paint dry. “Come on,” she said, with a cute little smile that would soon be dispatched with regularity in order to coax me to anything I thought was a bad idea. Eighteen years later the smile still works, and I’m still watching this show. On a cold night in March of 2002, Nancy and I watched our first episode of The Bachelor. What followed has been 18 years of Monday night magic. She pours a glass of wine, cuddles next to me, and we watch The Bachelor. We laugh with each March 2020

other at the ridiculous behavior of the contestants, make fun of everyone involved (they signed up for it), and talk about parallels to our life. Yes, parallels. Realize that when we started watching, we were the age of the contestants. We are now the age of their parents. Our comments have transformed to “She’s hot,” to “Oh my goodness, I hope her mother isn’t watching.” I know the next question and the answer is yes. We watch The Bachelor, The Bachelorette, Bachelor in Paradise, and any other ridiculous show with “Bachelor” involved in the title. Finding your happiness, rather alone or with someone you love, is very important in this world. The long days and sleepless nights that our profession brings can keep us from extended moments of peace and mindless fun, and everybody needs some mindless fun. I can always find time to read, hike, play golf or write on the other 6 days of the week, especially since those little kids have now flown the coop. The introduction of live streaming, Netflix, Amazon Prime, and an endless bombardment of new series give us a choice of how to spend our time when the sun goes down and the morning with tomorrow’s depositions loom. However, on Mondays of the latest season of The Bachelor, you can find me with my girl, a big golden retriever at my feet, laughing and watching to see if everyone is there for “the right reasons.” Oh, and by the way, on most of those Mondays, I can look to my left and find the biggest fan Woody and Buzz Lightyear ever had. He is twenty years old, and brings his girlfriend home to watch The Bachelor with his old man. The things we do for love.

THE KNOXVILLE BAR ASSOCIATION presents OVER 50 LUNCH FOR SENIOR ATTORNEYS & THEIR GUESTS

Fixing Law Schools: From Collapse to the Trump Bump Featuring

Professor Benjamin Barton

University of Tennessee College of Law, Author

Wednesday, March 11, 2020

11:30 a.m. - 1:00 p.m. Calhoun’s on the River - 400 Neyland Drive

NEW in 2020: Buffet Lunch Price includes a buffet lunch that will serve Grilled Chicken Teriyaki, Charbroiled Shrimp, Sautéed Zucchini & Squash, Neva’s Potatoes & a beverage. If you have dietary restrictions, please provide us with at least 48 hours’ notice of your limitations. PRICE: $35.00 (Includes tax & gratuity) Mail/deliver check to: The Knoxville Bar Association 505 Main Street, Suite 50, P.O. Box 2027, Knoxville, TN 37901-2027 (865) 522-6522 Prepay online at www.knoxbar.org. Please note that the buffet lunch will be served by 11:30 a.m.

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B I L L & P H I L’ S G A D G E T O F T H E M O N T H By: Bill Ramsey Neal & Harwell

By: Phil Hampton Founder and CEO, LogicForce Consulting

OBSERVATIONS FROM 2020 CONSUMER ELECTRONICS SHOW We recently returned from the 2020 edition of the Consumer Electronics Show in Las Vegas. Every year this tech pageant parades a cavalcade of cutting-edge technology that we will likely be using in our everyday lives months and years in the future. While we were mesmerized by this year’s latest innovations, we also paused to reflect on the past decade of advancements and marveled at how yesterday’s “cutting-edge” tech is now mainstream. We are only 10 years removed from the debut of Steve Jobs’ iPad tablet computer. At the time, we remember Jobs predicting that someday soon instead of picking up a newspaper or a book to read, we would just consume this content from this odd, touch-screen device that was neither a laptop nor a smart phone. At the time, Jobs’ vision seemed like science fiction; but, of course, we now know he was eerily prescient. Walking over the vast exhibition halls at the 2020 CES, we saw how far the consumer tech industry has advanced in the past decade. Incredibly thin and vivid TVs, wireless speakers and earphones, voice activated AI assistants, touchscreens on everything, drones for every task imaginable, augmented and virtual reality experiences, and smart home products from the kitchen to the bathroom: what used to wow us is really just ho-hum (and especially for younger consumers). Our yawning indicates that the industry has been very successful over the past decade in quickly bringing big tech advancements to the masses. But even after all the innovations of the past that have become commonplace, there are still new products that capture our imagination for the future. CES 2020 provided plenty of stimulation for that forwardthinking imagination. After passing by several thousand exhibits at this year’s show, we were impressed with the following trends that we observed in new tech products: • • • • •

A PC/laptop revival with some new and exciting form factors An explosion of wireless earphones and ear buds Artificial Intelligence playing much larger role in everyday tasks and work Big growth in health and wellness technology Tech to help overcome human physical limitations

The rumors of the death of the PC (and laptop) have been widely exaggerated many times. But these tried and true computing platforms just won’t go away. This year we saw more innovation than usual for new model laptops. Dual screen laptops are the biggest hit and largest innovation category; and many computer manufacturers are quickly getting dualscreen models in production. Microsoft had already announced a new dualscreen device called Surface Neo before CES. Others are now following suit. Dell has the Dell Duet, and Lenovo introduced the ThinkPad X1 Fold (technically just 1 screen that folds in half ). 5G, the new ultra-fast digital cellular network currently being rolled out nationwide, was an undercurrent for just about everything at CES this year. We are now seeing 5G-compliant laptops coming to market, including Dell’s impressive Latitude 9510, which is a great business-level laptop that is both 5G and Wi Fi 6 compliant and boasts an incredible 30-hour battery life. HP and Lenovo also had new 5G capable models, the HP Elite Dragonfly and Lenovo Yoga 5G, respectively. As we walked the exhibit floor, we’re not sure if we saw more wireless ear buds protruding out of the ears of the some 175,000 CES

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attendees versus the number of booths hawking the “best sounding” wireless ear buds on the market. Like a swarm of locusts, wireless ear buds were everywhere. Apple surely started this trend with its really impressive AirPods. We saw everything from AirPod knockoffs from various littleknown foreign companies to really top-of-the-line competitors like Samsung’s Galaxy Buds and Jaybird’s Elite Active 75t. Consumers really like pumping their music from their smartphones directly to their ears, and now they have joyously freed themselves from any wires. Artificial Intelligence (AI) has been around for a long time and has meant different things to different sectors of the economy. Many think of technology like Amazon’s ever-popular Alexa assistant as AI, but we are beginning to see real applications of AI at work and play that goes well beyond a virtual assistant giving us the weather and traffic conditions. For example, we spoke with a representative from the John Deere company standing in front of the massive John Deere farm equipment exhibit at CES. He talked about how AI integrates with the state-of-the-art farming equipment to assist in preparing the soil, planting, fertilizing, and harvesting crops in a way that maximizes efficiency and time. Bill noted that the farming principles that the rep talked about were the principles that Bill’s father implemented decades ago as a farmer. Today those principles are being implemented on a massive scale by machine and artificial intelligence. This year, continuing a trend from the past couple of years, we saw a huge growth in health and wellness technology. The baby boomers are retiring at a rate of 10,000 per day, and many of them are looking to technology to make their golden years more healthy and enjoyable. Tech manufacturers are looking to turn the boomers’ golden years into gold. Withings ScanWatch has a built-in electrocardiogram for detecting arrhythmia. MedWand is a gadget that allows doctors to examine patients remotely with 10 different medical diagnostic functions. Mateo is a weight tracking smart bath mat that also measures body composition and posture. Neo HiFi was just one of many advancements in hearing aid technology that sits in the ear virtually undetected. We may be getting old, but we’re fighting father time with all the tech we can get our hands on. While aging may be an easy obstacle to overcome using technology, we were reminded that there are much more formidable physical challenges that many people face. Technology is making great strides in standing up to some of these challenges and making a huge difference. For people who suffer from dyslexia, Abeye introduced Lexilens, smart eyewear that filters out the symptoms of this disorder. OrCam showcased MyEye 2.0, an advanced artificial vision device for people who are visually impaired. Of course, CES would not be CES without a healthy dose of the bizarre. Samsung introduced its Star Wars-like personal robot ball called “Ballie”. We saw a toilet tissue robot that will retrieve a new roll for you if you are caught without a square to spare. There was the Manta5 water bike that lets you pedal a bike across a body of water (for real). You just really have to go to CES to fully appreciate the breadth and diversity of today’s consumer technology. There is nothing like it in the entire world. We hope to still be going in 2030 when we will be laughing at all the tech we thought was science fiction at the beginning of the 20’s.

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March 2020


WELL READ By: Sarah M. Booher OEB Law, PLLC

BORN A CRIME: TREVOR NOAH To be honest, I didn’t get all excited about Trevor Noah’s Born a Crime when it was released in November 2016. I had already read so many books on South Africa over the years, from Archbishop Desmond Tutu to self-published disgraced, controversial activists, looking to give their side of the story after the fall of apartheid. Could Noah really make any brilliant, biting, and acerbic observations that would make it worth my time to read his book? After all, he’d contributed to the brain drain, heading to Hollywood in search of greener, more lucrative and politically-stable, but sometimes equally ludicrous, pastures. Turns out, the answer is yes. I was a stuck-up jerk. I was very wrong. Suffice it to say, there’s more than 28,000 reviews on Goodreads. com, for an average rating of 4.45 stars, telling me just how wrong I was not getting all excited about it. It is touching. It is maddening. It is hysterical. It is, “Oh, my gosh, how is he going to get out of this mess?!” I was hooked from the very first page, when he sucks me into a multi-layered story about the family car breaking down one Sunday morning as they prepared to go to one of the three different churches his mother made him and his brother attend. A woman of great conviction, they attended a ‘jubilant, mixed’ church, an ‘analytical, white’ church, and a ‘passionate, cathartic, black’ church, sometimes multiple services each Sunday (as well as those throughout the week). But their car never worked, because they were poor, and because Noah’s abusive, alcoholic, mechanic stepfather wasn’t interested in fixing it. And Noah had his own internal conflicts about faith and whether it was Jesus or the Devil that made their car not work that day and if it was really worth snarkily expressing those feelings to his stubborn mother who would inevitably break out in a sprint, chasing him down the street and beating him once she caught up to him. That particular morning, he decided not to challenge her.

you love Jesus, but maybe next week you could ask him to meet us at our house. Because this really wasn’t a fun night.” This story encapsulated the entire first chapter, and it perfectly set the tone for the rest of the book and his life story. His mother was (and likely continues to be) a driving force in his life. When she decided to have a child, she asked her Swiss/German friend to break the law with her, even though “natives” having sex with “Europeans” was a crime punishable by up to 5 years in prison for a man and 4 years in prison for a woman. When they were out in public, his father would have to walk on the sidewalk across the street, so as not to appear to be with them. And if a policeman approached, his mother would drop Noah’s hand and pretend she didn’t know him, lest she be arrested and her child taken from her. Eventually apartheid made it so difficult for his father to be with them that they quit being together, leaving a gaping hole of wonder and insecurity in the adolescent Noah. [One of the most touching moments of the story was when he went to visit his father as an adult, after years of wondering if his dad loved him, and his dad bringing out a huge scrapbook to show him. In it were all the newspaper clippings, advertisements, etc. spanning Noah’s career and evidencing his ultimate success as a national and international stand-up comedian. It was a cathartic moment for them both.] Unfortunately, that was what apartheid did. It took fathers away from their families, either to the mines, jails, graves, or to exile. It kept people running, always staying one step ahead of the police or any great variety of trouble. It made them evidence of a crime at their very conception, and that crime stayed with them as they struggled to make ends meet by doing things like selling bootleg records and DJing illegal parties. “The hood made me realize that crime succeeds because crime does the one thing the government doesn’t do: crime cares. Crime is grassroots... Crime gets involved in the community. Crime doesn’t discriminate… It is comfortable. And comfort can be dangerous. Comfort can provide a floor but also a ceiling.”

They caught a minibus home after church, part of an informal and illegal system for transporting blacks in Johannesburg. Their driver was Zulu, and when he heard Noah’s mother speaking Xhosa to her children, he started harassing her for getting into a strange man’s car, calling her a slut and telling her he was going to teach her a lesson. He started driving faster. And he wouldn’t let them out of the vehicle. His mother resorted to the only other option she had available. She threw open the sliding door, pushing a sleeping Noah out of the vehicle, and tumbled out behind him curled in a ball around her younger son. They ran. As they sat, covered in blood and dirt, gathering the energy to walk the rest of the way back home, Noah said, “Look, Mom. I know March 2020

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YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris Lincoln Memorial University Duncan School of Law

OF FINGERNAILS AND NIPPLES Fingernails and nipples have much in common. Both are body parts, and both, it turns out, are very constitutional. I have the privilege of teaching the occasional seminar at LMU. Seminars are great. Students get to learn and write about a subject in depth; and I get to learn from, and about, my students. Jen Bolt is a “nontraditional” law student. That is, she spent some time between college and law school doing a variety of interesting things. She brings her experience to the classroom, to the benefit of all. Jen took my seminar, Lincoln’s Constitution, last fall. She took seriously my suggestion to look beyond the standard paper topics of emancipation, war powers, and habeas corpus, and to investigate other issues related to Lincoln’s legacy. Jen wrote a paper entitled, “Gold Rush to Gold Nails: Lincoln, Asians, and Modern-Day Human Trafficking.” Jen pointed out that, even as Lincoln was abolishing African-American slavery, Asian-American slavery continued unabated. It wasn’t called slavery, of course. It was a system of indentured servitude. But the effect was the same. Poor Asians, primarily from China, were recruited by their own countrymen to come to the United States with promises of opportunity and wealth. When they arrived, disoriented and mostly unable to speak English, the truth was revealed: They were slaves, and if they displeased their masters, they would be sent back to the poverty they had fled, or, worse, their families back in China would suffer. Such practices accelerated as California gold mines and transcontinental railroads demanded more laborers. They continued well into the twentieth century, until World War II, when our alliance with China against Japan made them politically untenable. Unfortunately, another Asian war had the opposite effect. Vietnam brought many refugees to the United States. The actress Tippi Hedren (she of “The Birds”) visited a refugee camp. The Vietnamese women there were impressed by her elaborate fingernails. Out of the goodness of her heart, Hedren sent her own manicurist to teach them a trade, which they eagerly embraced. Unfortunately, the refugees were soon exploited by more powerful Vietnamese immigrants, who, once again, turned them into virtual slaves. This practice spread as, occasionally, a slave would earn her freedom and her own nail shop. Then typically, she would turn around and do unto others precisely what had been done unto her. More Vietnamese women would be lured into slavery, confined in deplorable conditions, and the cycle would continue to the present day. But it gets worse: nail salon workers by day are often sex slaves by night. The root cause of this is greed. Slave labor enables unscrupulous salon owners to undercut legitimate competitors. And American consumers are complicit. Jen says, “If you pay less than twenty dollars for a manicure, you are likely benefitting from human trafficking.” Another student, D.T. Christmas, is a young man from an impoverished rural background. He wrote a paper in my First

Amendment seminar about a different body part. I recall vividly when it came time for him to announce his topic—his thesis was that women should have the same right as men to go topless in public. The whole class laughed, and several of D.T.’s female classmates rolled their eyes and accused him of simply wanting to do some nontraditional legal research. D.T. laughed, too. But he was serious. And as the summer term went by, he gradually convinced his classmates both of his seriousness and the persuasiveness of his arguments. D.T. began his paper with a biblical quotation: “And they were both naked, the man and his wife, and were not ashamed.”1 Of course, Adam and Eve’s opinions changed when they were kicked out of Eden. D.T. notes that attitudes about nudity, specifically above-the-waist nudity, have changed many times over the millennia. Frequently, female breasts were openly represented in marble or paint, something a visit to any art museum will confirm. Sometimes, however, society was more conservative, and women were forced to cover up. The pendulum could swing very quickly. Take a look at Gilbert Stuart’s 1804 portrait of Dolley Madison. Then contrast her revealing dress with the fashions that prevailed only a few years later, in what we call the Victorian Era. But pendulum swings were not confined to the female body. D.T. points out that, in the early 1930’s, the male mammary was socially and legally taboo – which explains all of those old photos of men at the beach in what look like infants’ onesies. These days, many women are advocating for changes in the law. Some champion the right to nurse in public – in a clean restaurant booth, say, as opposed to a filthy bathroom stall. But others go further. One group, called “Free the Nipple,” advocates public defiance of laws prohibiting display of the areola or nipple. They will go to a public place, remove their shirts, and wait to be cited or arrested. Most such defendants make arguments pursuant to the Equal Protection Clause, arguments which have largely failed. To prevail on an Equal Protection claim, a party must demonstrate both the intent and effect of discrimination. Intent is notoriously difficult to prove. So D.T. takes a different tack, asserting that women have a First Amendment right of free expression that (un)covers their breasts.2 First Amendment claims always get some degree of heightened scrutiny, but D.T. has an uphill battle. While a choice of clothing may constitute expressive conduct, courts typically require an explicit message which is understood by the observer. What does a naked breast express? A woman in Utah is currently being prosecuted for “lewdness” for removing her top while renovating her garage, not in public, but in front of her stepchildren. She may become a registered sex offender. So the stakes are high. That’s why D.T.’s classmates stopped rolling their eyes, and why most of them now agree with him.

1 2

Genesis 2:25, King James Version. Sorry, bad pun. Couldn’t resist.

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. 26

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March 2020


LONG WINDED By: Jason H. Long London Amburn

THE WONDER OF KNOWLEDGE I have been on a lawyer movie kick lately, so let’s keep the train rolling. One of my all-time favorite movies is Inherit the Wind, an adaptation of the stage play by the same name, presenting a fictionalized account of the Scopes Monkey Trial. The film appeals to me as a lawyer, a Tennesseean, and a fan of good acting. Starring Spencer Tracy, Frederick March, Gene Kelly, and the original Darrin from Bewitched, the film takes place almost exclusively inside the courtroom of a small Tennessee town (the courtroom used in the movie is much less impressive than the actual Dayton courthouse) and depicts the epic battle between religion and science. The film is great for a number of reasons, but chief among them is the performance of Spencer Tracy as Henry Drummond, a fictionalized version of Clarence Darrow, the celebrated attorney who defended the Tennessee school teacher charged with a crime for teaching that man descended from a lower order of animals. Spencer storms about the courtroom throughout the movie, indignant at the ignorance on display, pleading in defense of rational thought and on behalf of his client’s freedom. Alternating between witty, angry and compassionate, it is a tour de force. One of my favorite scenes comes as opposing counsel (March) objects to a line of questioning and Tracy begins lecturing the jury (rules of procedure are pretty much thrown out the window) on the importance of accepting the advancements of science, but the cost such acceptance has upon our lives.

The answers are too easy and therefore have no value to us. Is it any surprise that so many in the last election cycle decried the intellectualism of Barak Obama and Hillary Clinton in favor of a candidate who boasted that he just “went with his gut”? This is not a criticism of policies or personalities for any of these candidates, merely an observation that much of our culture denigrates study and intellectualism, which is not a surprise since we all share essentially the same access to knowledge, whether we engage in study or not.

Gentlemen, progress has never been a bargain. You’ve got to pay for it. Sometimes I think there’s a man behind a counter who says. “All right, you can have a telephone; but you’ll have to give up privacy, the charm of distance. Madam, you may vote; but at a price; you lose the right to retreat behind a powder-puff or petticoat. Mister, you may conquer the air; but the birds will lose their wonder, and the clouds will smell of gasoline. Darwin moved us forward to a hilltop, where we can look back and see the way from which we came. But for this view, this insight, this knowledge, we must abandon our faith in the pleasant poetry of Genesis. I think back on the quote when I think about where we are in society today and what our modern technologies, innovations, and learning have brought us. I particularly like the phrase “you may conquer the air, but the birds will lose their wonder . . .” That’s what the internet has wrought in my opinion. We have “conquered” the delivery of information around the globe, but the value of knowledge and learning has lost its wonder. What is the value of rigorous study when most of the accumulated knowledge of mankind is available to you in an instant, at your fingertips, using a device slightly larger than your wallet? I recognize this article is getting a little deep for me, so let me lighten it up a little. Have you ever wondered where the singer Meat March 2020

Loaf was born? Thirty years ago, if you woke up one morning and thought to yourself “hey, you know, I don’t know where Meat Loaf was born,” you were most likely out of luck. You simply didn’t know and it was unlikely, absent extraordinary effort, that you were going to find out. To learn where Meat Loaf was born, you would have to go to a library in the hopes that someone had written a biography on Meat Loaf. In the absence of that, perhaps you could start attending Meat Loaf concerts on the off chance that devotees in the crowd would know or that the man himself would drop hints from the stage between sets. You could participate in Meat Loaf fan clubs or inquire of all your friends to discern who was a true Meat Loaf fan, branding yourself as a socially awkward person who really enjoyed Paradise By The Dashboard Lights. Perhaps one day, as you desperately searched for an answer, you would run into a person in a record store who saw you browsing through Meat Loaf ’s catalog and that person would say something like “Hey Meat Loaf, you know I grew up with him in Dallas, Texas. And at that moment, you would get a flood of endorphins and feel a real satisfaction at accomplishing your task. Nowadays, a ten-second Wikipedia search would give you your answer and also let you know that Meat Loaf was born Marvin Lee Aday.

I remember my first day working as an attorney for what was then Sheppeard & Swanson, P.L.L.C. I walked into the office bright and early, ready to start my new career, and, as I walked around, I eventually found the library. Bill Mynatt was in there with stacks of red books open on the table and a yellow legal pad covered with cryptic citations. He had been there for hours already. He had been shepardizing a brief he was planning to file in the Court of Appeals that day. The scene looked like a Norman Rockwell painting of what the practice of law should be. Concentrated study, effort, diligence on display. Today, Bill could have slept an extra few hours and simply run a search online in a matter of minutes. I guess that is progress. I suppose it provides greater value to our clients and may, in fact, be more accurate (I am not sure on that point as I would put Mynatt up against a machine any day). However, I am not sure it is good for us, as lawyers and as people, to stand on the shoulders of others and coopt that work and knowledge, without more personal investment. It feels like we have lost the wonder of study and knowledge. Perhaps, once again, I am starting to turn into a curmudgeon.

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BARRISTER BITES By: Angelia M. Nystrom University of Tennessee Institute of Agriculture

“THE FANCY MEAL” It is amazing what happens when (1) you are on a Delta flight at dinnertime with nothing but a Diet Coke, a package of Biscoff cookies and a 100 calorie pack of Cheese-Its, and (2) and the latest edition of Southern Living magazine was in the mailbox as you headed for the airport. This was the beginning of what we now call “the fancy meal” at our house. Back in November, we traveled to New York for Thanksgiving. Our flight was at 6:30 pm on a Tuesday night, which meant that I made a mad dash from work, to home, and then to the airport. We had a direct flight, which meant that we would arrive at the hotel at around 9:30. Knowing that there was a great restaurant close by that served dinner until midnight, we made the decision that we would not eat dinner until we arrived in New York. I did not plan on working through lunch however, which meant that I may or may not have licked the crumbs from the inside of the Cheese-It bag. They say that you should never grocery shop while hungry. I will add that you probably should not read a magazine full of recipes while hungry either. During the flight, I read various recipes to Hugh, usually telling him, “We should make that when we get home.” I say that a lot but normally end up preparing the same meals week after week. I’ve got a few “go-to’s” that are easy and usually pretty good. I’m a creature of habit and usually don’t venture too far out of my norm. I was intrigued, though, by a recipe for a whole roasted chicken. I had made a lot of turkeys but had never made a chicken unless you count the Fresh Market’s rotisserie chicken from the deli section. (We have done that so many times that, when I ask what he wants for dinner, I usually get a quick “not rotisserie chicken” from Trace.) One night when Trace was out (so as to avoid the inevitable ‘that looks like rotisserie chicken so I don’t want it’ conversation), I decided to try the Southern Living roasted chicken. It took a little longer than the advertised “only 30 minutes to prepare,” but it smelled divine while it was cooking. When it was finished, Hugh was so impressed with it that he made a photo and pronounced it “guest-worthy.” “The fancy meal” really is good, and I thought I would share. To make the chicken, preheat oven to 400°. Core and halve 6 sweet apples (I like Honey Crisp), and place them in the bottom of a roasting pan. Trim and peel 10 shallots and place them in pan with the apples. Drizzle 2 tbs olive oil over the apples and shallots and sprinkle with ½ tsp each of kosher salt and black pepper. Push apples and shallots to the edge of the roasting pan. Place a whole chicken (giblets removed, 5-6 lbs) in the roasting pan. Sprinkle ½ tsp each of kosher salt and black pepper into the cavity of the chicken. Place 2 shallots and 3 large springs each of thyme, rosemary and sage into the cavity. Tuck wings under and brush chicken with 2 tbs olive oil. Sprinkle with 1 ½ tsp each of salt and pepper. Tie legs together with kitchen twine. Roast chicken in preheated oven until a thermometer inserted in thickest portion of meat registers at least 160°F (about 90 minutes). Remove from oven and let rest for 15 minutes. Transfer chicken to serving platter. Pour drippings over the chicken and sprinkle with 1 tsp each of chopped rosemary, thyme and sage. A lot of times, the chicken with apples and shallots is the only

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thing that we have. Other times, though, I will make a green dish, either green beans or a salad of some sort. My favorite, though, is Brussels sprout slaw with pecans and pomegranate seeds. To prepare, whisk together ½ cup olive oil, ¼ cup champagne vinegar, 2 tsp Dijon mustard, 2 tsp kosher salt, and ½ tsp black pepper. Place 1 ½ lbs of shaved Brussels sprouts in a large bowl. Add ½ cup of the dressing and toss to combine. Let stand at room temperature until softened (30 minutes to one hour). Add 1 cup toasted chopped pecans, 1 thinly sliced Anjou pear, and ¼ cup pomegranate arils to Brussels sprouts and toss to combine. Drizzle with remaining dressing just before serving. (For what its worth and to make this easy, I buy pre-shaved Brussels sprouts, chopped and roasted pecans (and do not use salt in the recipe if they are pre-salted), and the already prepared pomegranate arils. It makes this a quick and easy dish. Bonus: if you are healthconscious, this meal really fits the bill. It has quickly become a family favorite… and it makes me look like a better cook than I really am! Bon appetit!

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

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. 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. PARALEGAL ASSOCIATION MEETING The Smoky Mountain Paralegal Association (“SMPA”) will hold its monthly meeting on Thursday, March 12, at 12:00 p.m. at the Blount Mansion Visitors Center, Knoxville, Tennessee. Clark Eckert, DC will be presenting Issues in Soft Tissue Injury Cases. A lunch buffet is available at the cost of $12/person with reservations. Please contact Karen Yearwood, ACP, at president@smparalegal.org or (865) 2153676 for additional information and/or lunch reservations. If you would be interested in speaking at a future SMPA meeting, please contact Kati Wheatley, ACP, First Vice-President, at firstvice@ smparalegal.org.

KALA SALARY SURVEY AVAILABLE The Knoxville Chapter of the Association of Legal Administrators (KALA) conducts a survey each year that includes general salary information and fringe benefits. If you would like to purchase a copy of the survey, please contact Charlotte Welch at cwelch@opw.com. The cost of the survey is $150.00 OFFICE SPACE AVAILABLE: •

Downtown Office Space - Downtown attorney has office space available for rent at The First Horizon Building, 800 S. Gay St., 22nd floor. The rent includes phone and internet. Westlaw available. Email jfanduzz@gmail.com for inquiries

West Knoxville-Bearden Office Space - West Knoxville lawyer has office space for rent at 4008 Sutherland Avenue. The rent includes internet, ample parking and common area maintenance. Inquiries: leslieahull@gmail.com.

Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 900 sq ft. Present floor plan accommodates four offices plus a conference room and a reception area. One Level. Offices on either side occupied by long-term law firms. Very Affordable Rate with a two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.

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

March 2020

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

PRO BONO SPOTLIGHT By: Kathryn Ellis Pro Bono Director Legal Aid of East Tennessee

DO YOU HAVE A CLINIC IDEA? If you read this page each month, you know that we hold a lot of advice clinics in Knoxville, as well as an occasional one in Maryville and Sevierville. These clinics have become a great way to provide advice about legal issues to many in our community. I have also discovered that a LOT of you want to help, but don’t know how you can translate your practice areas into assisting a Pro Bono client. At the clinics, many of the clients have boil down to procedural issues. Many others simply need someone who can explain the meaning of a letter they have received, a contract, or some other legal document.

Want to Volunteer? Fill out our new Pro Bono Volunteer Survey: https://www.surveymonkey.com/r/DCTWYFSt

Mark Your Calendars:

Right now, we are holding a monthly general advice clinic for Veterans, a quarterly Debt Relief Clinic, and several general advice clinics as part of the Faith & Justice Alliance.

* March 7 (9:00-12:00) – Knoxville Saturday Bar at LAET’s Knoxville Office

One thing I often hear is that some attorneys still want to volunteer but can’t make it on a Saturday or would like to volunteer at a clinic that focuses on their specialty area.

* March 11 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s Community Law Office

So, here’s your chance to let me know your ideas for a clinic! It can be something that happens just one time (or once a year) or something that happens several times a year. It can be something geared towards a certain population of clients (similar to the Veterans Clinics). It can something focused on a certain area of law (estate planning, child support, etc.).

* March 21 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County Office

A primary focus of Legal Aid of East Tennessee’s and the Pro Bono Project’s work is to increase access to justice for all members in our community. This means working to assist low income citizens to ensure that they receive equal treatment regardless of disability, race, age, sexual orientation, veteran status, or gender. As we exit Black History Month and enter Women’s History Month, it is worth looking at how far we have come and how far we must go for equal access to justice for all. As Barack Obama said, “[w]e have to acknowledge the progress we made, but understand that we still have a long way to go. That things are better, but still not good enough.”

* April 4 (9:00-12:00) – Knoxville Saturday Bar at LAET’s Knoxville Office * April 8 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s Community Law Office * April 18 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County Office

Thank you to everyone who has already committed to sponsoring this year’s Forging Justice Pro Bono Celebration! Kramer Rayson Drozdowski & Rabin Luedeka Neely Group Kizer & Black Ritchie, Dillard, Davies & Johnson

Paine, Tarwater & Bickers UT Federal Credit Union Watson, Roach, Batson & Lauderback East Tennessee Lawyers Association for Women Bible Harris Smith

The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902

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phone (865) 637-0484

e-mail:kellis@laet.org

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fax (865) 525-1162 March 2020


THE LAST WORD By: Jack H. (Nick) McCall

Q: A:

Mark, what are your own “last words” and thoughts in retrospect on your service as the Knox County Public Defender?

MARK E. STEPHENS,

THE LAW FIRM OF MARK E. STEPHENS October 31, 2019 was my last day at the Knox County Public Defender’s Community Law Office. I’d been there a little over 29 years. My transition back to the private practice of law has been difficult … more difficult than I had anticipated. About twenty years ago, when the CLO was transitioning to a holistic (interdisciplinary) representation model, Dr. Roger Nooe, who holds a Ph.D. in social work, emphasized the professional parallels between social workers and public defenders. Dr. Nooe would tell me that both social workers and public defenders tend to be viewed at the bottom of their respective professions. He always challenged me not to practice consistent with the public defender stereotype. Dr. Nooe was right. There is a negative public defender stereotype.

There are lawyer jokes, but worse there are public defender jokes ... a million of them. Some as benign as, “are you a public pretender?”, while others are as cutting as the T-shirt that on the front displayed, “don’t tell my mom I’m a public defender,” and on the back said, “she thinks I’m a piano player in a whore house.” But I really don’t get the joke. Without question, the greatest lawyers, the finest people, I have come to know - in my life - have been, and many remain, public defenders. The men and women at the CLO make up an absolutely relentless fighting machine ... an irrepressible force for justice. A group that suffers great sacrifice to themselves and their families, nevertheless they come to work every day … and I mean every day … to fight for the sons and daughters, moms and dads, the forgotten and cast-offs, who are their clients. And as a way of saying thanks, we grossly underpay them, overwork them, disregard them, and even make fun of them. They deserve better. Society today is quick to label someone - or some group - as “heroes.” Firefighters, police officers, EMT personnel, school teachers … all heroes. I’ve always pushed back at those characterizations, not because of any failure to appreciate what people in those professions do for others, but because of my anger that public defenders are never cast in that light. If you are going to recognize heroes, you should recognize the men and women at the CLO. My transition to private practice has been difficult because I miss those folks. They grounded me. The fight for justice they take on everyday had been my fight … my identity. And that’s gone now. I respect those men and women, I admire them, I love them. And now I’m trying to discover a purpose as great as theirs.

“The Last Word” column is coordinated by KBA Member Nick McCall. If you have an idea for a future column, please contact Nick at nick.mccall@gmail.com March 2020

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