Dicta.March 2018

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Management Counsel: Law Practice 101 Telecommuting: Recruiting Tool, Reasonable Accommodation, or Risk? . . . Page 13 Schooled in Ethics: The Suicidal Client: What are your Ethical Duties? . . . Page 21

A Monthly Publication of the Knoxville Bar Association | March 2018


Photo Ops

Trivia Night – Monday, January 22nd More than eighty members and their guests enjoyed a Trivia Night at Abridged Beer Company. The winners were: 1st Place - Three Men and a Lawyer – Abigail Patterson, Taylor Patterson, Carl Goins, Patrick Goins 2nd Place - Qui Tarn Relators – Chase Kibler, Bart Williams, James Parker, Rachel Crowley 3rd Place - BallLuhns – Laurie Ball, Josh Ball, Melody Luhn, David Luhn



March 2018

In This Issue

Officers of the Knoxville Bar Association

Cover Story 16

March 2018

A Promise to Keep

Critical Focus President Keith H. Burroughs

President Elect Wynne du Mariau Caffey-Knight

Treasurer Hanson R. Tipton

Immediate Past President Amanda M. Busby

Secretary Cheryl G. Rice

KBA Board of Governors Charme P. Allen Maha Ayesh Jamie Ballinger-Holden E. Michael Brezina III Kathryn St. Clair Ellis

Stephen Ross Johnson Elizabeth K.B. Meadows Mary D. Miller Carrie S. O’Rear T. Mitchell Panter

M. Samantha Parris Robert E. Pryor Jr. Mikel A. Towe

The Knoxville Bar Association Staff


President’s Message

Pro Bono Service: It is a Win-Win Situation

9 10

Practice Tips

Collaborative Family Practice

Around the Community

Introducing the Children’s Health Law Partnership

Tennessee Considers Adoption of the Uniform Bar Exam

11 13

Legal Update

Management Counsel: Law Practice 101

Telecommuting: Recruiting Tool, Reasonable Accommodation, or Risk?


Marsha S. Watson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Jonathan Guess Database Administrator

Lacey Dillon Programs Administrator

Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org

Tracy Chain LRIS Administrator

Adelyn Bryson LRIS & Membership Assistant

Volume 45, Issue 3


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 Elizabeth B. Ford Joseph G. Jarret F. Regina Koho David E. Long

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

Managing Editor Marsha Watson KBA Executive Director

DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. March 2018



8 14 18 20

Schooled in Ethics

The Suicidal Client: What are your Ethical Duties?

Conventional Wisdom Legal Myth Breakers

Tenn. Code Ann. Sec. 20-1-119: Federal and State Procedure

Outside My Office Window

The Fight

Hello My Name Is

Christine Ball-Blakely

Time Out

Less Stuff, Less Stress

Lawyer Hobbies

Special Children, Special Dreams- The Dream Connection

History and Culture

Book Review: The Blood of Emmett Till

23 Of Thermometers and Thermostats The Code 24 Hidden Knoxville The McClung Museum of Natural 25 26 27 28

4 6 19 29 30 31

Well Read

Your Monthly Constitutional

Shredding the Constitution

Long Winded

Movie Law 101

Bill & Phil’s Gadget of the Month

What We Saw at the 2018 Consumer Electronics Show

Common Ground

Section Notices/Event Calendar Bar Hopping Barrister Bullets Bench & Bar In the News Pro Bono Project Last Word




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. Alternative Dispute Resolution Section The ADR Section will be planning regular CLE throughout the year. If you have program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Bob Stivers (386-1630). Bankruptcy Law Section The Bankruptcy Section will meet quarterly. To have your name added to the section list, please contact the KBA office at 522-6522. If you have program topic or speaker suggestions, please contact the Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000). Corporate Counsel The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. If you would like to get involved, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Headrick (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. Join members of the KBA Environmental Law Section for a section meeting from 5:30 – 6:30 p.m. on Thursday, March 22, 2018 at the law office of Baker Donelson (265 Brookview Way). Refreshments will be provided. Section members will get to know one another, discuss possible CLE topics and consider starting a listserv. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs LeAnn Mynatt (549-7000) or Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Section The Government & Public Service Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you would like further information on the section, please contact Leah McClanahan (545-4260) or Ron Mills (215-2050). Juvenile Court & Child Justice Section Members of the KBA are invited to join the KBA’s Juvenile Court & Child Justice Section, formerly the Unmet Legal Needs of Children Committee. For information about the Section, 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 2016 will automatically be opted-in to the section. The goal of the section is to provide programming for new lawyers, including educational opportunities, social/ networking events, listserv, and e-community with a comprehensive file-sharing system. The section will allow attorneys to connect with other attorneys who may or may not be in the same practice area, but who are new to the legal field and facing similar experiences. Events are tentatively planned for the last Monday of each month. For information about the Section, please contact Section Chairs Liz Anne Bowden (637-1980) or Sam Louderback (546-0500). Senior Section The KBA Senior Section will meet next on Wednesday, March 28, 2018 at Calhoun’s on the River. The program title is “Barbecue and the Meaning of Life: A Guide to the Great Barbecue Joints of America” and will feature Vince Staten, Metro Columnist for the Kingsport TimesNews. The luncheon will be held from 11:30 a.m. to 1:00 p.m. The price includes an entree, vegetable, salad and beverage. Please indicate your choice of grilled shrimp or chicken teriyaki. Register online by clicking March 28 in the Event Calendar at www.knoxbar.org. If you have suggestions for speakers, please contact Chair Wayne Kline at 292-2307. Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. To have your name added to the section list, please contact Section Chairs Tripp White (712-0963) and Patrick Slaughter (637-6258).




March n 1 n 2

KBA & Barristers Happy Hour Bankruptcy Extended CLE

n 3 HS Mock Trial Competition n 5 ADR Section CLE n 6 Law Office Tech Committee Meeting n 8 Lunch & Learn n 8 Judicial Committee Meeting n 13 Professionalism Committee Meeting n 14 Veterans Legal Advice Clinic n 14 Barristers Meeting n 19 Diversity in the Profession Committee Meeting n 20 KBF Board Meeting n 21 Board of Governors Meeting n 22 Volunteer Breakfast n 26 New Lawyers Section Event n 27 CLE Committee Meeting n 27 LRIS Committee Meeting n 28 Senior Section Luncheon

April n 2 n 3 n 7

ADR Section CLE Law Office Tech Committee Meeting Faith & Justice Legal Advice Clinic

n 10 Professionalism Committee Meeting

n 11 Veterans Legal Advice Clinic n 11 Barristers Meeting n 12 Expo 2018 n 13 Expo 2018 n 16 Diversity in the Profession Committee Meeting n 18 Board of Governors Meeting n 19 Lunch & Learn n 19 Barristers Bowling Event n 26 Volunteer Breakfast n 30 New Lawyers Section Event

Mark Your Calendar Law Day Luncheon May 3, 2018 March 2018

PRESIDENT’S MESSAGE By: Keith H. Burroughs Egerton, McAfee, Armistead & Davis. P.C.


March 2018

I now realize that it is not a precursor to mandatory pro bono legal services, but rather is an encouragement to all lawyers to perform pro bono legal services and a means to change the public image of lawyers. In 2016, 49.54% of Tennessee’s attorneys reported that they provided pro bono legal services by checking the box on their annual report. Those lawyers donated on average 72.77 hours for a total of 591,064 hours of pro bono legal services with a value, estimated at an average hourly rate of $200.00, of $118,212,800.00. These are the lawyers that voluntarily reported pro bono service activity during the preceding calendar year. That amounts to 8,122 attorneys of the 16,395 total reporting who performed pro bono legal services. What is striking about the report is the percentage of attorneys voluntarily reporting they performed pro bono legal services hovers just under 50% in each year since those statistics were first published in 2012. Observing all of the lawyers that I know who perform pro bono legal services in the KBA leads me believe there are many practitioners who do not report but actually perform more than 50 hours of pro bono services per year. In preparing to write this article, I was talking with a fellow lawyer about the topic and the importance of self-reporting as a way to change the public image of lawyers and to acknowledge the effectiveness of the Access to Justice Initiative. She indicated that she does not check the box even though I know she performs well more than 50 hours of pro bono service per year. She said she felt like it was bragging. I contend that it is not bragging but rather a way to encourage pro bono service and allow the public to see lawyers from a different perspective. I encourage us all to provide pro bono legal services, and when it comes time to file your BPR Annual Registration Statement, check the box to share the good news. It is a win for our profession and those we serve.




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.




For no apparent reason, lawyers do not enjoy a positive public image. Lawyers are routinely the butt of “jokes” that we generally don’t find funny. There are probably more jokes about lawyers than any other profession that imply lawyers are sneaky, greedy or lack care and compassion for those with whom we come in contact. These characterizations of lawyers are nothing new. In the New Testament passage in Matthew 22:28-34, Jesus was approached by a group of Pharisees, and one of them, a lawyer, is reported to have tried to trick Jesus by asking which of the 613 commandments (i.e. laws) was the greatest. I will leave it to you to read the answer. But the negative public image of lawyers has been around for more than 2000 years. However, lawyers are compassionate and caring people. Most of us decided to pursue the profession and attend law school with the desire to help others. We do a great deal of good work for our clients, including those less fortunate who cannot afford our services. In addition to the long-standing Pro Bono Project of Legal Aid of East Tennessee whereby lawyers volunteer their time to help individuals who cannot afford a lawyer, our association is actively involved in many pro bono activities. On February 3, 2018, the Bankruptcy Section of the KBA conducted its first debt relief clinic of 2018. U. S. Bankruptcy Court Judge Suzanne H. Bauknight made opening remarks to orient those pre-screened attendees with an overview about debt issues and the process of the bankruptcy system. Twelve candidates were paired with twelve volunteer lawyers to assist with and evaluate possible debt relief alternatives for those candidates. This was the first of four debt relief clinics scheduled for 2018. The Knoxville Barristers, in conjunction with Legal Aid of East Tennessee, Knox County Public Defenders Community Law Office, The University of Tennessee College of Law and the local VA office have planned a free legal advice clinic for veterans from noon to 2:00 p.m. on February 14, at the Knox County Public Defenders Community Law Office. Clinics are also on the calendar for all remaining ten months of 2018. The KBA Access to Justice Committee also has plans for numerous Interfaith Legal Clinics throughout the year. The next one is scheduled for April 7 at Second United Methodist Church at 1524 Western Avenue from 9:00 to noon. The committee continues to recruit new faith communities from all backgrounds and neighborhoods to participate. These are just a few examples of KBA lawyers donating their time and talents to aid those who cannot otherwise afford a lawyer. In 2008, the Tennessee Supreme Court declared Access to Justice its number one strategic priority, thereby launching its Access to Justice Initiative. The Court appointed an Access to Justice Commission and made the Commission responsible for developing the strategic plan for educating the public about the legal needs crisis, identifying parties who are improving access to justice, and recommending projects and programs to enhance access to justice. Beginning in 2011, the Commission decided to compile statistics of pro bono work that aids low income Tennesseans on an annual basis. Tennessee lawyers have responded to the civil legal needs gap by donating time, talent and treasure to pro bono services, programs, and projects. To capture these statistics, pursuant to Supreme Court Rule 9, Section 10, every attorney required to file an Annual Registration Statement with the BPR is requested to voluntarily file a statement reporting the attorney’s pro bono service and activity during the preceding year. Beginning with the 2010 BPR Registration Statement, a box was added to allow self-reporting of pro bono service and hours. When this initiative first began, I was skeptical that the request for volunteer reporting of pro bono services was a precursor to mandatory pro bono service. I have always felt that it is my professional opportunity and obligation to give back through pro bono service to the community that has served me so well and has given me great opportunities as a lawyer. Having observed the work of the Access to Justice Commission,


BAR HOPPING By: Brady Cody Lewis Thomason

New for 2018, Bar Hopping will highlight one of the many beautiful courthouses around the State. The trick? It is up to you to figure out where. We had 5 total winners in our second contest. Congratulations to Sarah Sheppeard, Steven Hurdle, Maurice Guinn, David Eldridge, and Mikel “Me-kel’ Towe for correctly identifying Unicoi County.

Think you can name this courthouse? Email me at bcody@ lewisthomason.com with your answer. Correct answers will receive a shout-out in the next issue of Dicta. Check back next month for the reveal and a list of the big winners. Have a photo that you would like to submit? Send me an email and have it featured in an upcoming issue.



March 2018

LEGAL MYTHBREAKERS By: David E. Long Member, McAngus, Goudelock & Courie

TENN. CODE ANN. SEC. 20-1-119: FEDERAL AND STATE PROCEDURE In the interplay between federal and state litigation practice, issues of substantive and procedural law are not always apparent. The Erie R. Co. v. Tompkins1 “doctrine,” however, is important to remember in terms of procedural law dealing with statutes of limitations, which are almost always procedural and not substantive law. A good example of the difference is T.C.A. sec. 20-1-119. Succinctly, sec. 20-1-119 is a savings statute that allows ( in civil cases, where modified comparative fault is at issue), a plaintiff to bring a new defendant into a lawsuit even if the statute of limitations would have run on that defendant. Even if the statute has run, if an “original” defendant, sued within the controlling statute of limitations, “points the finger” at a new person or entity claimed to be at fault, the plaintiff has 90 days to bring in the new potential defendant either by (1) filing a separate lawsuit or (2) amending the initial complaint. If (2) is chosen, sec. 20-1-119 (a)(1) allows amendment “pursuant to Tenn. R. Civ. P. 15,” along with “caus[ing] process to be issued for that person.” Sec. 20-1-119 (b) makes it clear statute of repose defenses are not affected by sec. 20-1-119. Subsection (d) also does not cover cases commenced in conjunction with T.C.A. sec. 28-1-105 (the savings statute), unless the action is commenced in General Sessions Court and recommenced in either Circuit or Chancery Court. Prior to 2007, the process was controlled by Jones v. Professional Motorcycle Escort Service, LLC, et al.2 In order to comply with sec. 201-119, four things had to happen: (1) the filing; (2) and granting of a motion to amend; (3) the filing of the amended complaint; and, (4) the issuance of process. Thus, prior to July 1, 2007, the court had to grant the motion to amend under TRCP 15, assuming it was not agreed to by the other party and the time to amend by right had run. The General Assembly amended sec. 20-1-119, which took effect on July 1, 2007. In doing so, TRCP 15.01 was amended to state “[f ]or amendments adding defendants pursuant to…20-1-119, however, written consent of the adverse party or leave of court is not required.” The amendment was provided to help eradicate the harsh result of requiring the plaintiff to make sure the trial court actually “granted” the motion to amend within 90 days. Prior to the amendment TRCP 15 and FRCP 15 were practically identical. Enter the Erie doctrine into the mix. We all know that the doctrine (in 42 U.S.C. sec. 1332 cases) mandates federal courts to apply state substantive law and federal procedural law. Statutes of limitation are procedural. Electric Power Bd. of Chattanooga v. Monsanto Co.3 sec. 201-119(c) states it does not shorten or lengthen any statute of limitations “other than as provided in subsection (a).” The point is: FRCP 15 was not amended (nor could it be practically) to take into account the 2007 amendment to sec. 20-1-119 or TRCP 15.01. In order to follow the Erie doctrine in a federal civil case involving a sec. 20-1-119 issue, FRCP 15(a)(2) still requires “the opposing party’s written consent or the court’s leave.” In federal court, the Jones case is alive and well. All four things stated above still have to occur in federal court for the 90 day window of sec. 20-1-119 to be utilized effectively. There are federal cases dealing with the procedural difference in the Middle District and the Eastern District. The Eastern and Middle federal districts follow a strict Erie procedural reading. Anderson v. Bovis Lend Lease, et al.4, and Sanders v. Young5, hold, in federal court, the Jones case is still the standard, and as such, all four things still have to happen, including permission by the opposing party or leave of court by granting the motion to amend. In relation to the Erie doctrine and the federal court system, those cases set forth the correct procedural map. So long as statutes of limitation are considered procedural in this State, unless FRCP 15 is amended, (which will not happen, since FRCP 15 deals with a national procedural standard), Anderson and Sanders remain the correct, March 2018

although admittedly harsh, result in federal cases dealing with T.C.A. sec. sec. 20-1-119 and FRCP 15. There exists a federal magistrate’s opinion with a different result. In Williams v. Corrections Corp. of America6, the Magistrate held the reading of what is discussed above as being too harsh. Essentially, the Williams court did not realize a motion to amend was pending. The Court pointed out that leave should have been granted, but held it was not “productive” to deny the amendment. The court discussed the fact the defendant was not prejudiced and held that the outcome in federal court should be “substantially” the same as in state court, and it granted the amendment as timely. The Williams court did not analyze the Erie doctrine. It is suggested that the Williams case, while seeking to avoid a harsh result, was decided incorrectly, and is not good precedent for a 6th Circuit appeal. Although the saying “what’s sauce for the goose is sauce for the gander,” is a colloquial statement that might be applied to substantive law in 42 U.S.C. sec. 1332 cases outside the Erie procedural standard, it is not good common wisdom when dealing with the differences in federal and state procedural law. Practitioners should note the difference and be ready to take into account the procedural differences in dealing with sec. 20-1-119 in both state and federal cases. 304 U.S. 64 (1938). 193 S.W.3d 564, 570 (Tenn. 2006). 879 F.2d 1368, 1375 (6th Cir.1989). 4 2008 WL 336741 (E.D., Tenn. 2008) 5 2015 U.S. Dist. Lexis 162410 (M.D. Tenn. 2015). 6 2011 WL 795012 (M.D. Tenn., 2011). 1 2 3

Photo Op

The KBA Bankruptcy Section has partnered with Hon. Suzanne Bauknight of the U.S. Bankruptcy Court and Legal Aid of East Tennessee to sponsor a Debt Relief Clinic. Ten clients were assisted during the clinic on Saturday, February 3rd. Hon. Suzanne Bauknight, U.S. Bankruptcy Judge, had an opportunity to work with LMU students who participated as part of their bankruptcy law class. From left to right are A.J. Parker, Bridget Campbell, Hon. Suzanne Bauknight, Lyndsey Phillips, Matt Coleman, and Jessica Conine.



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


THE FIGHT This is a helluva way to make a living. In most cases I take to the courtroom, the stakes are high. My client is either catastrophically injured or their loved one is dead. Believing in the system of justice our constitution and statutes have given us, I am always taking on talented advocates who, like me, are dedicated to representing their clients. Many times I’m pitted against people I like. The adversary nature of what we do breeds suspicion and causes us great anxiety, because we know from day one The Fight is on. On January 29th I made my way to Division III of Knox County Circuit Court, the home of the Honorable Deborah Stevens. The case involved the death of Lola Mae Harbin, a 63 year old woman who was loved by her adult children, her husband and an extended family that insisted on lining the pews of the courtroom every day of the trial. The case was against a physician, who is married with a son. He is a nice man, who by all accounts has helped a great many people. Again, the stakes are always high. The doctor was represented by Debby Thompson. Debby and I have often been on opposite sides, but we have always been professional. In fact, I dare say, we have become friends over the years. Our mother-in-laws have both been overwhelmed by the same awful disease - Alzheimers. We’ve held the devastated children of wonderful women, as our spouses learn to deal with a terrible diagnosis and the subsequent decline of their beloved mothers. Both women reside at Arbor Terrace Assisted Living. Debby and I have shared holiday meals of ham and gelatinized fruit in the company of other families with afflicted loved ones, all of us uncomfortably thrown together to pretend like everything is normal and happy. We have shared photos of our own children. Her daughter, Joanna, and my daughters are the same age. Her daughter is a running phenom, having graduated from Catholic High and attaining all-American status at NC State. Debby is not nearly the bragger that I am, but once you get her started, she can run with the best of us. Joanna currently runs professionally with Reebok (“not Nike” Debby has admonished). Debby is a proud mother, and rightfully so. I am a proud father. Pride in our children is a good base on which to grow a friendship, but Debby and I have our mother-in-laws and we have The Fight on which to base a mutual respect and an affinity for each other. Perhaps I assume too much. During the course of pretrial motions and our stressful trial, the bonds of friendship are strained. She had a client who believed he had provided good care and who was convinced a verdict would be a slight on his career. I had a client who was convinced her mother died as the result of his inattention. This wasn’t your low-speed rear-end car wreck. In the zealous representation of our clients I’m quite sure we hurt each other’s feelings and strained the bonds of a friendship I’ve always appreciated. On one occasion it took the judge to remind us to take a deep breath and a step back. Judge Stevens has fought The Fight. She understands. Debby and Grant Lewallen, a capable young lawyer who will be a star in this profession, are zealous advocates, and both adapted well to the surprises a trial invariably brings. Lawyers are a competitive lot. Our egos are large and fragile. We start with that. We add clients who grab our hearts and to whom we become completely dedicated. Then there is the belief we are right. I knew my theory was not only sound, but that I was correct. It all fell together for me when I took the case. I was committed. She knew and believed her client had done all he could have done and that Lola’s death was not caused by anything her client did or didn’t do. One of us had to be wrong. It was a Fight and it became personal at times. The proof


lasted for three days - a short trial for a medical malpractice case. The jury was out for four hours. During that time Debby and I began the healing process, discussing our families and sharing our thoughts on how hard the profession was on each of us and our families. Both of us were exhausted. Both of us wondered out loud how long we could do this and keep our sanity. We talked about spouses who’d been ignored for days and other clients that had been neglected. My father always told me that a trial like that would take five years off of my life. I think he was being conservative. I knew when the jury filed in that I’d lost. Sometimes you just know. In our system there is a winner and a loser. I’ve been both. The pain of a loss when the stakes are so high cannot be described. Heartbreaking. But as the cases come and go, and my life is shortened in increments of 5 years at a time, I hope that Debby knows I value her friendship, that I respect her professionalism and skill, and that it is not The Fight but the friendships we make in this life that matter in the end. I cherish the insane bond we share and which I share with others in this Bar. I’ll see Debby soon enough in other cases and at Arbor Terrace. I have no doubt that she will enjoy a devious little smile to herself the next time she and I share a jello dessert, knowing that she bested me this go around. It will be well-deserved. Now, on to the next one.


March 2018


COLLABORATIVE FAMILY PRACTICE On June 13, 2017, the Tennessee Bar Association filed a petition in the Supreme Court of Tennessee seeking to amend the Rules of the Tennessee Supreme Court to add a new rule which would address the practice of “Collaborative Family Law.” The Court solicited written comments and closed the response period on November 21, 2017. There is no set timeline for a ruling from the Court now that the deadline for comments has expired, but based on the support that the rule has received from the Tennessee Bar Association, the Knoxville Bar Association, the Nashville Bar Association, the American Bar Association’s section of Dispute Resolution, and endorsement by the Tennessee Board of Professional Responsibility (with some minor revisions), it appears that there are many lawyers and other collaborative professionals who are hopeful that the Court will act expeditiously. The TBA petitioned the Court to adopt a new rule concerning the practice of Collaborative Family Law in order to “offer guidance to lawyers and consumers with respect to a growing method of dispute resolution in domestic relations practice.” In their petition, the TBA states that “a rule is needed to provide better definition to Collaborative Family Law Practice and offer greater guidance for lawyers and consumers regarding family law services offered. The uniform definitions of the dispute resolution process of collaborative family law are derived from the Uniform Collaborative Law Rule/Act (“UCLR/A”) developed by the National Conference of Commission of Uniform State Laws.” The goal of the proposed TBA rule appears to provide a structured and sanctioned process for Tennessee families who want a less adversarial, more supportive approach to navigating the difficult experience of divorce. Initially, the TBA subcommittee on Collaborative Law had recommended adoption of a proposed amendment to Tennessee Supreme Court Rule 31 to govern the practice of Collaborative Family Law. After numerous meetings of TBA leadership, and feedback from TBA members, it was determined that rather than an amendment to Rule 31, the proposal should be a stand-alone rule based on the UCLR/A. The rationale being that although collaborative practice is a form of alternate dispute resolution, collaborative matters are submitted to the process voluntarily where Rule 31 applies to court annexed ADR. If passed, this collaborative Family Practice Rule would be Tenn. Sup. Ct. R. 53. Under the rule, attorneys, mental health professionals and financial professionals will compose the collaborative practice family law team. The collaborative practice groups that have formed across the state of Tennessee typically require these professionals to have completed a two day, 14 hour collaborative training based on standards set by the International Academy of Collaborative Professionals (IACP). The IACP is the largest professional association of the collaborative world with over 5,000 members. To be a member of most collaborative practice groups, practitioners are also expected to complete interest-based negotiation training such as Rule 31 mediation training. Interest-based negotiation focuses on developing mutually beneficial agreements based on the interests of the disputants. Interests include the needs, desires, concerns, and fears important to each side. Interest-based negotiation is important to the collaborative process in that it assists in producing more satisfactory outcomes for the parties involved than does positional bargaining. Collaborative Family Law is recognized as a legitimate and effective way for people to reorganize their families, without the damage and cost of litigation. It is a voluntary process in which divorce and other family law related issues are approached more as a transaction than a conflict. Collaborative practice can also apply to disputes involving civil unions or unmarried couples, employment law, probate law, elder law, estate planning, construction law, real property law, and other civil law where March 2018

By: Heidi Plehn Wegryn Law Office of Heidi Plehn Wegryn

continuing relationships exist after the conflict has been resolved. In the family law context, we are well aware that divorce consistently ranks as one of the top stressors that a person will face in their lifetime. Coping with a divorce is usually accompanied by a multitude of effects on the emotional, financial, interpersonal, physical and spiritual wellbeing of the person going through the process. The collaborative divorce is a client-centered approach to divorce and other family law matters that relies on the guiding principal of respect and mutual problem-solving to reach an agreement that will be beneficial to the entire family. Building on the success of mediation and unbundled legal services, collaborative attorneys are hired pursuant to a limited scope representation agreement whereby they represent clients for the purpose of assisting them in reaching a marital dissolution agreement, a parenting plan where necessary, and filing necessary documents to determine an uncontested resolution of the dispute. Attorneys and clients sign an agreement, called a participation agreement, which governs the terms of the process. The parties agree to work toward settlement without going to court; they retain neutral experts; they agree to full disclosure and candid exchange of information that would normally be obtained through formal written or oral discovery; the confidentiality requirements for the process are set out; and if no settlement is reached then both attorneys withdraw. The parties will meet with each other and their attorneys in a series of meetings with the clients and the team of lawyers, the divorce coach, and/or financial professionals, where they discuss their individual needs and goals for the divorce and their post-divorce lives. With their counsel, the parties have the opportunity to develop and evaluate various options for maximizing their respective interests. The divorce coach is a mental health professional (MHP) who has experience and training in managing difficult discussions. The MHPs are not hired to provide therapy, but are valuable in tending to strong emotions that can come with the examination of divorce related issues. Efficiency is promoted when parties jointly engage the financial neutral who assists the parties in gathering a complete profile of their assets and liabilities and preparing anticipated future budgets. The financial neutral works with both parties to develop and assess financial options. It is less expensive for one financial neutral to gather all relevant financial information from the parties than for each attorney to mine the same financial data from their respective clients. As with Rule 31 mediators, all neutrals are hired with the understanding that they will not work for either party after the case has settled. One of the most important factors in a successful collaborative family law process is the nature of the skills that the lawyers for both parties and the neutral professionals have acquired through their formal training and experience. The collaborative family law process has a greater likelihood of success when the team of professionals has completed the training that teaches the necessary skills involved in representing and engaging with clients in collaborative conflict resolution. The collaborative process empowers clients to be more engaged in how their marriage ends, and what their future holds. The presence of a set of rules governing collaborative practice will give the process the legitimacy and formal structure needed to advance the practice of Collaborative Family Law. As a Collaborative Family Law practitioner, I have experienced first-hand the extremely positive outcomes that collaborative divorce has provided to my clients. I am hopeful that the Supreme Court of Tennessee will adopt the proposed new Rule 53, support this creative, voluntary, confidential form of limited scope representation, and officially recognize the collaborative family law process as a viable option for divorcing families in Tennessee.



AROUND THE COMMUNITY By: Alex Brinson Legal Aid of East Tennessee

INTRODUCING THE CHILDREN’S HEALTH LAW PARTNERSHIP Every day, children in our community arrive at the emergency room to be treated for any number of ailments. They receive medical care and are discharged to return home. But what if the home is the cause of their illness? Consider a child who arrives at the ER suffering from an acute asthma attack; medical professionals will stabilize the child and the child will go home. However, if their home is infested with black mold that the landlord refuses to clean up, that child will be back at the ER in short order. A legal solution can provide a long-term fix so that the child’s health outcome improves, unscheduled ER visits are reduced, and the family ends up in a safer overall environment. Providing legal solutions to patients and families is the goal of the new Children’s Health Law Partnership (“CHLP”) between East Tennessee Children’s Hospital (“Children’s”) and Legal Aid of East Tennessee (“Legal Aid”). Our program is funded through a one-year grant from the Trinity Health Foundation. I have the privilege of serving as the CHLP attorney, working on site to provide free legal services to patients and families at Children’s to address legal problems that affect their child’s health. People who otherwise cannot afford an attorney, or who may not realize they are entitled to relief through the courts, will now be able to utilize the CHLP as part of the overall services they will have available at the hospital. The CHLP officially launched on January 1st, 2018, and the need was readily apparent. Grandparents who are caring for their grandchildren, who need authority to consent to medical treatment of very ill children, did not know where to turn or how they could afford representation. Parents whose TennCare was wrongfully terminated, their insulin supplies for their diabetic children running low, are now able to obtain assistance free of charge. Families who are facing eviction in the dead of winter are able to access not only myself as the on-site attorney, but all of the knowledge and skill of the attorneys at Legal Aid to receive advice, representation, and advocacy quickly. The concept of integrating legal services into the medical setting to improve health outcomes for patients is not new. It was originally developed in 1993 at what is now Boston Medical Center, in conjunction with Greater Boston Legal Services. Doctors there noticed that, despite their successful treatment of pediatric patients, external factors continued to negatively affect their patients’ health. Issues like food stability, safe housing, family safety, and educational barriers continued to negatively impact the children in that community. With a lawyer on-site to provide free legal services to those patients, those families were now able to address their previously unmet legal needs and assert their rights in a meaningful way.1 Programs like the CHLP allow for interdisciplinary outreach and communication between medical professionals and attorneys, improving the services delivered by both professional communities. And with a partnership such as the CHLP, those most in need of help in our community have direct and easy access to free legal representation as part of the broader health services offered at the hospital. This program is not the first in Tennessee. Le Bonheur Children’s Hospital in Memphis began their CHiLD program in September of 2015 as a partnership between Le Bonheur, Memphis Area Legal Services, and the University of Memphis Cecil C. Humphrey’s School of Law. And Erlanger Health System in Chattanooga has a similar program, also in partnership with Legal Aid. These programs have been very successful in helping kids in their communities. Now those in


Knoxville and the surrounding areas are benefiting from these services as well. “At Children’s we practice ‘patient and family-centered care,’ which means that we involve the whole family in the patient’s care team” says Cathy Shuck, Vice President for Legal Services and General Counsel for East Tennessee Children’s Hospital. “When we are able to take care of any type of family need, including a legal need, it benefits our patients by helping their family care team stay focused on the child. We also think that helping families with legal needs like safe and secure housing will help our patients, especially children with chronic conditions, have better health outcomes.” Cathy explains, “as General Counsel for the hospital, it has always been frustrating to me when I learn that a patient’s family has a legal need. We have many, many families who need help with issues like guardianships, securing public benefits, and domestic issues, but as the hospital’s lawyer I cannot offer direct help to families. I am thrilled about our partnership with Legal Aid and about having Alex here to provide that direct, essential legal assistance to our patients and families.” Jane Morris, Managing Attorney for the Knoxville Legal Aid office, is also very excited about the program. “We are always looking for ways to more effectively reach East Tennesseans in need. We are excited about this partnership because it gives us the chance to identify children and families with legal issues that would otherwise remain unresolved.” Deb House, Director of Development and Compliance at Legal Aid, says “Children’s Hospital is an amazing institution. I think their mission and our mission dovetail perfectly. We both want to effect positive changes in the lives of children and families. We see this program as a way to really make a lasting difference in the lives of sick children. What could be better than that?” While the program is off to a great start, additional funding is necessary for these services to continue to be offered. “Unfortunately, we only have stable funding for the first year of this amazing program. We are working with the development staff at Children’s and are hopeful that the community will step forward and help us continue beyond next year” says House. With additional funding, our goal is to continue helping our most valuable, and vulnerable, members of our community have happier, healthier lives for many years to come. 1



March 2018



Vonda M. Laughlin

Associate Professor of Law, Director of Bar Studies, LMU Duncan School of Law

On October 18, 2017, the Tennessee Board of Law Examiners (TBLE), petitioned the Tennessee Supreme Court to amend Rule 7 of the Supreme Court Rules to permit adoption of the Uniform Bar Examination (“UBE”) in place of the current Tennessee Bar Examination.1 The TBLE initially proposed that administration of the UBE begin with the July 2018 examination but later amended its petition to request that administration of the UBE not begin until the February 2019 examination.2 In support of its petition seeking adoption of the UBE, the TBLE points out that the UBE is prepared by the National Conference of Bar Examiners to test knowledge and skills that every lawyer should be able to demonstrate and that questions are developed by drafting committees composed of law school professors, lawyers, and judges from throughout the United States who are experts in their fields.3 According to the petition, while the TBLE and exam assistants work diligently to prepare high quality tests, additional resources are available for preparation of the UBE.4 The petition also recognizes the mobility of today’s lawyers and that multi-jurisdictional practice is more common today, particularly in Tennessee which borders more states than any other state in the country.5 These factors support another facet of the TBLE petition, that an acceptable transferred UBE score from another jurisdiction be allowed to satisfy examination requirements provided that other standards for admission to the bar are satisfied.6 What exactly would adoption of the UBE mean for examinees? The current Tennessee examination includes a 200- question multiple choice test called the Multistate Bar Examination, nine Tennessee-specific essay questions, and one task-based Multistate Performance Test which counts as the equivalent of three essay questions. The multiple-choice section of the exam is weighted at 50% of the score; and the written portion of the exam, consisting of the Tennessee-specific essay questions and the Multistate Performance Test account for the remaining 50% of the score.7 The UBE, on the other hand, consists of two, rather than one, taskbased Multistate Performance Tests; the current 200-question multiple choice Multistate Bar Examination; and a six-question Multistate Essay Examination.8 The multiple-choice Multistate Bar Examination is weighted at 50% of the score, the Multistate Essay Examination at 30%, and the taskbased Multistate Performance Tests at 20%.9 The current 200 question multiple-choice Multistate Bar Examination and the one task-based Multistate Performance Test are already prepared by the National Conference of Bar Examiners.10 If the UBE is adopted, the primary changes would involve the administration of an additional task-based Multistate Performance Test and the administration of the six-question Multistate Essay Examination prepared by the National Conference of Bar Examiners as opposed to the current essay exam consisting of nine Tennessee-specific questions prepared by the TBLE and exam assistants. Areas of law that may be covered on the UBE Multistate Essay Exam include business associations (agency and partnership, corporations and limited liability companies), civil procedure, conflicts, constitutional law, contracts (including Article 2 of the Uniform Commercial Code), criminal law and procedure, evidence, family law, real property, torts, trusts and estates, and secured transactions.11 Supreme Court Rule 7, section 4.04, sets forth areas of law for which knowledge is considered essential for the current examination.12 Many of the subjects are the same as those covered by the UBE although there are a few differences. For example, the area of professional responsibility, which may be addressed as an essay subject in the current Tennessee examination, is not covered as a subject area in the UBE Multistate Essay Exam.13 Testing on professional responsibility would not be ignored, however, as a passing score on the separately administered multiple-choice Multistate Professional Responsibility Exam would continue to be required for bar licensure.14 Additionally, of course, examinees testing in UBE jurisdictions must answer questions according to generally accepted fundamental legal principles and federal rules as opposed to jurisdiction-specific rules.15 For example, the Multistate Essay Exam would cover the Federal Rules of Civil Procedure but not the Tennessee Rules of Civil Procedure. In the area of torts, another example of the law applied by the UBE is that examinees taking the Multistate Essay Exam are told to assume that “joint and several liability, with pure comparative negligence, is the relevant rule unless otherwise indicated.”16 That, of course, is different from how comparative fault is applied under Tennessee state law.17 Twenty-eight states plus the District of Columbia and the Virgin Islands have adopted the UBE,18 and a resolution passed by the American Bar Association’s House of Delegates recommends its adoption.19 Specifically, Resolution 109, sponsored by the ABA Law Student division and passed in 2016, states as follows: “RESOLVED, That the American Bar March 2018

Association urges the bar admission authorities in each state and territory to adopt expeditiously the Uniform Bar Examination.”20 Adoption of the UBE does not transfer all control of the bar admission procedure to the National Conference of Bar Examiners. Instead, as recognized by the TBLE petition, local attorneys would continue to grade essays and the task-based Multistate Performance Test.21 Additionally, the National Conference of Bar Examiners notes that local jurisdictions continue to decide who may sit for the bar exam, determine underlying educational requirements, make character and fitness decisions, set policies regarding the number of times an unsuccessful examinee may retake the bar examination, set passing scores, determine policies regarding acceptance of scores earned in another jurisdiction, and make decisions regarding accommodations under the Americans with Disabilities Act.22 The National Conference of Bar Examiners further recognizes that each jurisdiction makes its own determination regarding assessment of candidate knowledge of jurisdiction-specific content.23 Toward that end, the TBLE petition recommends that the Supreme Court require a postadmission local law component with the make-up and requirements of the course to be determined by the Court and its commissions.24 Most comments that have been filed with the Court support adoption of the UBE although there is not a consensus on related issues such as the date of implementation and addition of a local law component.25 On January 5, 2018, the Supreme Court extended the comment period for all interested commenters from the original deadline of January 5, 2018, to March 2, 2018.26 Petition to Amend Tennessee Supreme Court Rule 7 Governing Licensing of Attorneys, TENNESSEE BOARD OF LAW EXAMINERS, http://www.tnble.org/sites/default/files/ube_ petition_-_exhibit_a.pdf. 2 Amendment to Petition to Amend Tennessee Supreme Court Rule 7 Governing Licensing of Attorneys, TENNESSEE BOARD OF LAW EXAMINERS, http://www.tnble.org/sites/default/files/ amendment_to_petition_to_amend_rule_7_12-5-2017.pdf. 3 Petition to Amend Tennessee Supreme Court Rule 7 Governing Licensing of Attorneys, supra note 1, para. 4. 4 Petition to Amend Tennessee Supreme Court Rule 7 Governing Licensing of Attorneys, supra note 1, para. 6. 5 Petition to Amend Tennessee Supreme Court Rule 7 Governing Licensing of Attorneys, supra note 1, para. 5. 6 Petition to Amend Tennessee Supreme Court Rule 7 Governing Licensing of Attorneys, supra note 1, para. 8(h). 7 Statement of Policies and Procedures, TENNESSEE BOARD OF LAW EXAMINERS, para. 4.07. 8 Jurisdictions that Have Adopted the UBE, NATIONAL CONFERENCE OF BAR EXAMINERS, http:// www.ncbex.org/exams/ube/ (follow “Multistate Essay Examination,” “Multistate Performance Test (MPT),” and “Multistate Bar Examination (MBE)” hyperlinks for specific information as to each test) (last visited January 19, 2018). 9 UBE Scores, NATIONAL CONFERENCE OF BAR EXAMINERS, http://www.ncbex.org/exams/ube/ scores/. 10 See Jurisdictions that Have Adopted the UBE, supra, note 8. 11 Preparing for the MEE, NATIONAL CONFERENCE OF BAR EXAMINERS, http://www.ncbex.org/ exams/mee/preparing/. 12 Tenn. R. Civ. P. 7 § 4.04. 13 Compare Tenn. R. Civ. P. 7 § 4.04 (referencing professional responsibility as a subject of essay testing) with Preparing for the MEE, NATIONAL CONFERENCE OF BAR EXAMINERS, http://www. ncbex.org/exams/mee/preparing/ (not referencing professional responsibility as a subject of essay testing). 14 Statement of Policies and Procedures, supra note 7, para. 4.07(d). 15 Instructions for Taking the MEE, NATIONAL CONFERENCE OF BAR EXAMINERS, http://www. ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F25. 16 2018 MEE Subject Matter Outline, NATIONAL CONFERENCE OF BAR EXAMINERS, http://www. ncbex.org/pdfviewer/?file=%2Fdmsdocument%2F183, p. 11 (last visited January 19, 2018). 17 See Ali v. Fisher, 145 S.W.3d 557 (Tenn. 2004). 18 Jurisdictions that Have Adopted the UBE, supra, note 8 (click on the “List View” tab for a listing of jurisdictions). 19 See Lorelei Laird, Would Uniform Bar Exam Help Law Grads’ Mobility? ABA House Asks States to Adopt It ‘Expeditiously.’ ABA JOURNAL BLOG (Feb. 9, 2016, 7:50 PM), http://www.abajournal. com/news/article/could_uniform_bar_exam_help_law_grads_mobility_aba_house_asks_ states_to_ado. 20 Resolution 109, AMERICAN BAR ASSOCIATION, https://www.americanbar.org/content/dam/ aba/images/abanews/2016mymres/109.pdf (typeface in original). 21 Petition to Amend Tennessee Supreme Court Rule 7 Governing Licensing of Attorneys, supra note 1, para. 6. 22 The Uniform Bar Examination, supra note 8. 23 The Uniform Bar Examination, supra note 8. 24 Petition to Amend Tennessee Supreme Court Rule 7 Governing Licensing of Attorneys, supra note 1, para. 7. 25 Proposed Rules and Amendments, TENNESSEE STATE COURTS, http://www.tncourts.gov/ sites/default/files/_combined_comments_-_admin2017-02083_1.pdf (listing all comments). 26 Proposed Rules and Amendments, TENNESSEE STATE COURTS, http://www.tncourts.gov/ sites/default/files/kba_order_granting_ext_comment_time_to_3-2-2018.pdf. 1





March 2018


Betsy J. Beck

Kramer Rayson LLP

TELECOMMUTING: RECRUITING TOOL, REASONABLE ACCOMMODATION, OR RISK? Does telecommuting sound like a win-win for employers and employees? In some cases, it certainly can be. But where there is growth of an idea, there are growing pains – both for employers and employees. For employees, the ability to work from home or other remote location can result in little or no commute time, flexibility of working hours, a casual dress code, ability to handle personal matters at home, and other benefits. An employer arguably has a reduced need for office space when it allows employees to work from home full-time. Employers may also find better qualified candidates in a broader geographic region than its traditional recruiting pool. But perhaps more importantly for the employer, employees are increasingly drawn to companies that permit flexible working arrangements. Work flexibility, and specifically telecommuting, is a valuable recruiting tool for modern employers and can allow companies with lower pay scales to score more attractive talent. But does the work actually get done? The reviews are mixed. Some large companies who have offered telecommuting as a perk have terminated the program due to lower productivity and lower revenue. Many companies who have offered the option of telecommuting to employees would answer that it depends on the employee and the nature of the job itself. The answer may also depend upon the ability of the employee’s supervisor to monitor and manage performance by telecommuters. ADA Considerations There may also be circumstances where an employer is required to consider telecommuting for a particular employee as an individual arrangement rather than as a wide-scale program. The Sixth Circuit Court of Appeals considered the issue in an important decision under the Americans With Disabilities Act (“ADA”).1 In the Ford case, Jane Harris’s position required her to serve as a liaison between Ford’s suppliers and parts manufacturers, ensuring that the parts supply ran smoothly and resolving disputes. Ms. Harris’s job was interactive, requiring teamwork and regular in-person contact. Because of severe Irritable Bowel Syndrome, which made it difficult to leave her desk or drive to and from work and client facilities without soiling herself, Ms. Harris asked Ford to approve her request to work from home four days a week as a reasonable accommodation. Ford denied her request, arguing that her job required significant face-to-face interaction and therefore her request for accommodation was not reasonable. Ford offered alternate reasonable accommodation options, which Ms. Harris declined. The EEOC filed a lawsuit on behalf of Ms. Harris, alleging a failure to accommodate and retaliation under the ADA. The Sixth Circuit initially reversed the district court’s grant of summary judgment to Ford Motor, holding that Ford could not prove that physical attendance was an essential function of Ms. Harris’s job. While regular attendance has long been considered an essential function of most jobs, the court stated that because of developing technology, the options for employee engagement at work from a remote location have greatly expanded. The Sixth Circuit granted an en banc review of the panel’s decision and held that the proposed accommodation (telecommuting four days a week) was unreasonable based on the interactive nature of Ms. Harris’s position. The decision, while favorable for Ford, was limited to the

specific facts of Ms. Harris’s case, and it left open the possibility that telecommuting may be a reasonable accommodation for employees who do not have the heightened level of interaction required by Ms. Harris’s position. The takeaway for employers is that times are changing when it comes to evaluation of requests for reasonable accommodations. Employers who deny requests for an accommodation of telecommuting must articulate specifically why physical attendance is an essential job function – and the reasons must be job-specific rather than based on outdated principles of what constitutes a workplace. When considering whether to allow telecommuting (most particularly when the request is not for reasonable accommodation of a disability), employers must be mindful of a primary employment law concept – treating like situations alike. An employer should always be able to articulate a legitimate, non-discriminatory reason for its decision to approve or deny telecommuting. If a male employee and a female employee perform the same job and both ask for a telecommuting arrangement, the employer should either grant or deny both requests or be able to provide a legitimate, non-discriminatory reason for the different decisions. Wage and Hour Considerations A critically important caution to employers who allow remote work for employees classified as non-exempt from overtime pay is remaining compliant with the Fair Labor Standards Act (“FLSA”). Employers are required to keep specific records of all hours worked by non-exempt employees and pay the employees accordingly, including overtime at a premium rate for all hours worked over forty in a workweek.2 Employers must have a plan to ensure that non-exempt employees record, and are properly paid for, every hour worked. That plan can include a “lock” on the employee’s ability to log into the employer’s system outside of the employee’s working hours, provided that denial of access to the employer’s system effectively prevents the employee from performing work. If that is not possible, the employer should regularly audit the employee’s log-in and access times against the employee’s timesheet to determine if the employee is working unrecorded time. At the least, a prudent employer will have a strict policy against working “off the clock,” train employees on recording all hours worked, and have employees sign a statement of accuracy every time they submit timesheets for payment. These FLSA issues are important, because damages for a violation, which include liquidated damages and attorney’s fees, are significant.3 Conclusion Telecommuting will likely be more common in the workplace (or perhaps, literally outside of it), whether by choice or as required as a reasonable accommodation. A prudent employer will evaluate whether and how telecommuting can adequately contribute to its overall objectives, while staying mindful of the trickier parts of managing a remote employee. EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015). 29 U.S.C. § 207(a)(1). 3 29 U.S.C. § 216(b). 1 2

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 2018




. . .


By: Katheryn M. Ogle McDonald, Levy & Taylor, PLLC

Newly admitted Knoxville attorney Christine Ball-Blakely truly has a servant’s heart. That servant’s heart has seemed to guide her well in life, and her legal career has been no exception. Christine graduated from The University of Tennessee at Knoxville with degrees in Political Science and Philosophy and joined the Americorps program. Through this, she and her husband, Michael, moved to Seattle, Washington where she obtained employment at a local food pantry. Here, she assisted with fundraising for the agency and coordinated direct services for some of the city’s neediest residents while managing the day-to-day check-ins for the organization. She also worked in the development department for “Treehouse” an entity that focused on positively affecting the graduation rates for children in foster care. When she wasn’t working with these worthy organizations, Christine worked with a small group on various weekly service projects to benefit the community. She recounts the experience as an Americorps member as one her favorite life experiences.

truly see how an attorney’s actions can affect individual lives. She was very active in Lamda Law Society during her time in law school, and was the Acquisitions Editor for the Tennessee Law Review. Since graduation, Christine has been working as an attorney at the Tennessee Valley Authority. Here, she’s had the opportunity to work with different practice groups at the organization and has found the experience to be nothing short of amazing. When she isn’t at work, both Christine and her husband really enjoy live music, and are looking forward to the Big Ears and Rhythm and Blooms festivals this spring. These always occurred near finals when Christine was in law school, so this year she is anxious to take advantage of the springtime events Knoxville has to offer. Christine is also the proud mother of three dachshunds: “Pretzel,” “Sugar,” and “Dunkel.” Like children, each of the three have their own distinct personalities, one who maintains the “scholarly gentleman” role; a high energy adventurer; and a younger pup who is learning his place in the pack, respectively. In her spare time, Christine and her family enjoy hiking at Ijams, and camping, although admittedly, they haven’t been in the tent as much now that there are three dogs to accompany them. In addition to these activities, she can be found cross-stitching or trying new vegan recipes in the kitchen. It was a pleasure to interview this inspiring new member of the Knoxville Bar Association, who will undoubtedly make an impression in the Knoxville legal community. *Author’s note: Any opinions expressed in this interview are that of the subject, Christine Ball-Blakely and in no way are attributed to the Tennessee Valley Authority.

Christine and her husband Michael after she was sworn in as a member of the Tennessee Bar. Christine always wanted to become an attorney, so for her it was more of a question of “when,” rather than “if.” “I always knew that as an attorney, it would empower me to better assist those who needed my help. I always wanted to be involved in public service on some level, but wasn’t exactly sure how the two would connect,” she recalls. The year Christine decided she would attend law school, she and her husband made the trek back to Knoxville after she was accepted at The University of Tennessee College of Law. During law school, she became very involved in the advocacy aspects of litigation. She was selected as an intern for the Student Animal Legal Defense Fund and worked with the program for three semesters during law school addressing the prosecutorial side of animal cruelty cases. Christine was also active in the Appellate Litigation Clinic which handled a case that was in the appeal process in the Sixth Circuit. She notes that as a law student, it’s very impactful to be involved in cases like these because you



An avid supporter of “The Gentle Barn,” Christine is pictured here with one of its residents, Henry.

March 2018

March 2018



A PROMISE TO KEEP The list is long and growing. Since October 2017, dozens of high-profile men and women in entertainment, sports, news, business, politics, and even the judiciary have been accused of sexual misconduct.1 Some of the news stories describe a single incident, a single comment, a single complaint. Others describe multiple incidents involving multiple complaints by multiple people, some of which span decades. Given the stories in the news, it is easy to assume sexual harassment is something that happens to other people in a parallel world where the rich and powerful people on television take advantage of the naïve and inexperienced. That perspective is convenient, but misguided. Consider the following stories, posted by workers who were asked to share their experiences. “As a young man in my twenties I was approached by two older women (I was a newly married young man). One cornered me and the other grabbed. I was shocked at the time. Both of these women turned against me after I rebuffed their advances.” *** “During the holidays I’d wear a Santa hat to work and a male coworker once asked if I would give him my hat and sit on his lap.” *** “I was used to how the guys acted... but being cornered in the small produce cooler by a rather large co-worker, was not something I was looking forward to. [He] would not let me pass and believe me there was no way around him, he began putting his hands on me and pulling me towards him as if to kiss, then showed me his penis. I had to show him I was carrying a pocketknife so that he would leave me be. To be female in food service, you have to have a thick skin...you have to endure the sexism and the insulting jokes. You have to work twice as hard as any man does just to show that you are not being a female.”


If you think this behavior is limited to

blue collar jobs, think again. Law firms are not immune. My first job as a legal secretary was in 2002. I worked for a senior partner at one of the oldest, most respected law firms in town. He was very old fashioned, calling me in his office to get him coffee, or to ask me to pull a client’s file for him. After working there for several months he began to make offensive comments, such as the time I was kneeling to file paperwork in the bottom drawer in the filing room. He came around the corner, stopped, and exclaimed ‘ You look good on your knees. That’s a good position for you.’ I left the firm because of him and promised myself I would never work in those conditions again.” *** “I was sitting in a meeting with several male partners and a male associate. I didn’t know any of them; I was new to the case team. In the middle of the meeting, one of the partners got up from his chair, walked over to where I was sitting, pressed against the back of my chair so I couldn’t push back from the table, and started rubbing my shoulders. I was so utterly shocked I didn’t know what to do. I tried to shrug him off and push him away, to no avail. I didn’t want to make a scene since I was new to the team. No one else said a word. Eventually he went back to his seat. After the meeting, the male associate commented that I must be really close to that partner. I said I didn’t know him.” *** “I was cleaning up my office after a big case and a partner came in and said, ‘I would love to clean your drawers… do you need assistance?’ The same partner then told me I should wear stilettos every day, and he later put his hand on my knee at a charity event.” *** “In my first job as a lawyer I had a boss who would burst into my office every day, shut the door, stare at me menacingly and say, ‘I need to have a word with you.’ Then he would ask bizarre


personal questions, about how much I slept or if I’d done my hair differently. One day he came in unannounced, shut the door, and asked, ‘Did your heart just skip a beat when I did that?’ Another time he told me that my knee-length suit skirts were distracting, because “ You have very long legs, so there is just a lot of leg between the floor and the skirt.” He once reported that the judges in a hearing were bothered by me because I was ‘too poised, too confident.’”2 Twenty-two years after Title VII of the Civil Rights Act of 1964 outlawed workplace discrimination based on a person’s sex – whether that person is a woman or a man,3 the Supreme Court’s landmark case, Meritor Sav. Bank FSB v. Vinson, held that sexual harassment was also unlawful sex discrimination.4 A few years later, in Oncale v. Sundowner Offshore Services, Inc., the Court clarified that Title VII prohibits all sexual harassment whether the harasser and the harassed are of different sexes or the same sex.5 In Meritor, the Court recognized two kinds of sexual harassment, both of which violate Title VII: (1) quid pro quo harassment where workplace benefits are conditioned upon acquiescence to sexual favors and (2) hostile work environment harassment.6 That second category was the one before the Court, and in subsequent cases, the Court has been clear that it did not establish a “general civility code” for the workplace.7 Instead, that second category comprises sexually suggestive comments and jokes, comments about a person’s sexual preferences or sex life, unwelcome touching, repeated requests for a relationship, and other sex-related conduct that is so objectively offensive that it alters the terms of the employee’s workplace. Perhaps that “objectively offensive” standard left too much wiggle room. Here is the conduct at issue in Meritor. A male vice president of a bank asked a female bank to dinner after work. During dinner, he suggested that they go to a hotel and have sex. She declined, but he kept asking over the next March 2018

COVER STORY By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.

weeks and months. Eventually, she agreed to have sex with him because she was afraid she would lose her job. After that, he repeatedly touched her breasts and butt while at work, and followed her to the bathroom and exposed himself to her. As it turns out, she wasn’t the only female employee subjected to this behavior. Eventually, he raped her.8 Ironically, Meritor was decided twentytwo years after Title VII was enacted, and here we are, exactly thirty-two years after Meritor, having a national conversation about how to address the exact same kind of conduct. According to the EEOC’s 2016 study, at least 25% of women and 19% of men have experienced sexual harassment in the workplace.9 For women, the EEOC estimates that the number is higher—closer to 50% and perhaps as high as 85%.10 Perhaps, despite Meritor and its progeny, the issue is that we have not yet reached an agreement on what behavior is “objectively offensive.” Now the daughters and sons of the workers who thought Meritor would protect them must face the same conduct in their workplaces. The common theme to the stories from Hollywood, law firms, and other workplaces is silence – a pervasive silence, sometimes for decades – by the people who experienced the harassment, saw the harassment, or were supposed to stop the harassment. Today, everyone is talking about workplace

harassment. In twenty-two years, will the workers of 2040 be able to say that the conversations of 2018 resulted in a meaningful change, or will they too be hoping to see the promise of Meritor fulfilled? 1 Melanie Mason, Sexual Misconduct Accusations Against California Assemblywoman Twist Gender Dynamics of #MeToo Movement, LA Times (Feb. 9, 2018), available at http://www.latimes.com/politics/la-pol-ca-cristinagarcia-sexual-harassment-investigation-20180209-story. html; Nashville Mayor Megan Barry Admits Affair with Ex-Security Chief, Tennessean (Feb. 1, 2018), available at https://www.nbcnews.com/politics/politics-news/ nashville-mayor-megan-barry-admits-affair-ex-securitydetail-chief-n843606; NBC News, Since Weinstein, here’s a growing list of men accused of sexual misconduct (Jan. 10, 2018), https://www.nbcnews.com/storyline/sexualmisconduct/weinstein-here-s-growing-list-men-accusedsexual-misconduct-n816546, last visited Feb. 3, 2018; NBC News, Here’s a List of Political Figures Accused of Sexual Misconduct (Dec. 16, 2017), https://www. nbcnews.com/storyline/sexual-misconduct/here-s-listpolitical-figures-accused-sexual-misconduct-n827821, last visited Feb. 3, 2018; Jacey Fortin, Accused of Sexual Misconduct, Andrea Ramsey Ends Kansas Congressional Run, New York Times (Dec. 15, 2017), available at https:// www.nytimes.com/2017/12/15/us/andrea-ramseyharassment.html; Matt Zapotosky, Prominent Appeals Court Judge Alex Kozinski Accused of Sexual Misconduct Washington Post (Dec. 8, 2017), available at https://www. washingtonpost.com/world/national-security/prominentappeals-court-judge-alex-kozinski-accused-of-sexualmisconduct/2017/12/08/1763e2b8-d913-11e7-a8412066faf731ef_story.html?utm_term=.4de46b197d13; Gil Kaufman, Melanie Martinez of the Voice Accused of Rape by Former Friend, Billboard (Dec. 5, 2017), https:// www.billboard.com/articles/columns/pop/8061580/ the-voice-melanie-martinez-denies-rape-allegationstimothy-heller, last visited Feb. 10, 2018; Tom Sykes,

Mariah Carey Accused of Sexual Harassment, Daily Beast (Nov. 8, 2017), https://www.thedailybeast.com/mariahcarey-accused-of-sexual-harassment, last visited Feb. 10, 2018. 2 For the preceding stories and more, see Nadia Agrawal, 21 Harrowing Stories of Sexual Harassment on the Job, Huffington Post (Dec. 17, 2015), available at https://www.huffingtonpost.com/entry/21harrowing-stories-of-sexual-harassment-on-thejob_us_566f39b1e4b0fccee16f84d8, and Essence Gant, 25 Stories of Sexual Harassment Horror Stories that Happened to Girls & Women at Work, BuzzFeed (Nov. 25, 2017), https://www.buzzfeed.com/essencegant/sexualharassment-horror-stories-from-girls-and-women?utm_ term=.ikx2Njvar#.ctQ8Rg3vz, last visited Feb. 10, 2018; Megan Molteni & Maria Streshinski, Women & Men Share Their Harrowing Stories of Workplace Harassment, WIRED, Culture (Nov. 6, 2016), https://www.wired. com/2016/11/workplace-sexual-harassment-in-america, last visited Feb. 10, 2018; Staci Zaretsky, The Pink Ghetto: Biglaw Sexual Harassment Stories Emerge, Above the Law (Oct. 11, 2017), https://abovethelaw.com/2017/10/ the-pink-ghetto-biglaw-sexual-harassment-storiesemerge-in-the-days-following-the-harvey-weinsteinscandal, last visited Feb. 10, 2018. 3 See 42 U.S.C. § 2000e-2(a)(1). 4 See 42 U.S.C. § 2000e-2(a)(1); Newport News Shipbuilding & Drydock Co. v. EEOC, 462 U.S. 669 (1983); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986). 5 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.75 (1998). 6 See id at 72-73. 7 Oncale, 523 U.S. at 79. 8 See Vinson v. Taylor, Civil Action No.78-1793, 1980 WL 100 (Dist. D.C. Feb. 26, 1980); Meritor Sav. Bank, FSB, 477 U.S. at 60. 9 Chai R. Feldblum & Victoria A. Lipnic, Select Task Force on Harassment in the Workplace (June 2016), available at https://www.eeoc.gov/eeoc/task_force/harassment/ report.cfm. 10 See id.

Photo Ops

On January 29th, members of the KBA New Lawyers Section gathered at Elkmont Exchange for a chance to get to know one another and learn about rain making from KBA Member Jason Long. Brown Professional Insurers was the sponsor for the Section’s inaugural event.

March 2018



TIME OUT By: Ann C. Short The Bosch Law Firm

Less Stuff, Less Stress This month’s column, I realize, may not appeal to many readers. I’ll commit the unpardonable sin of profiling and guess that the youngest members of the Bar will find it snooze worthy. Even so, I choose to recommend decluttering as a way to alleviate stress. There are approximately 300,000 items in the average American home.1 One out of every 10 Americans rents offsite storage – the fastest growing segment of the commercial real estate industry over the past four decades.2 Twenty-five percent of people with two-car garages don’t have room to park cars inside them, and our homes have more television sets than people.3 Americans spend $1.2 trillion annually on nonessential goods – items they do not need.4 The conclusion is inescapable that most of us own too much stuff. We feel the burden of our clutter. All that cleaning, and managing, and organizing. We have too much stuff, and the argument goes that it is robbing us of life. I offer a few personal experiences. I have been preparing to put my house on the market. I have shared with you my “decorating by disaster” stories, but another large part of getting a residence presentable to show is hiding or getting rid of a lot of personal “stuff ” and removing unnecessary furniture to make rooms look larger. The kitchen, of course, must look -- and smell -- like no one ever uses it. And the beds must be freshly made every morning. My first round of decluttering proceeded pursuant to the quirky book by Marie Kondo, “The Life Changing Magic of Tidying Up: The Japanese Art of Decluttering and Organizing.” I am not a particular fan of self-help books. The self-help industry reinforces perceptions of inferiority and creates unrealistic expectations.5 In a weak moment late at night, however, I pressed the purchase tab on Amazon, bought Kondo’s book, and tried the KonMari method. The KonMari method runs counter to the usual approach of gradually going room by room to purge clutter. Instead, you tackle clutter by category. Kondo advises beginning with clothing, since it’s the least emotionally loaded. I went from room to room and gathered all my clothing. Then, I threw everything in a pile in the floor and sat down next to the pile. Now for the corny part: the method teaches that we hang onto only what “sparks joy.” I know – whatever. But, perusing the pile did prompt certain decisions. I will never again fit into those size 4 jeans; no joy sparking there. That dress has been out of style for years. Who needs 12 scarves, when I only regularly wear five of them? On and on. Admittedly, shoes and purses were the most challenging. I proceeded next to books, papers, and miscellaneous (kitchen, garage, attic). The most sentimental category is reserved for last: memorabilia, which includes old photographs, cards, and letters. For books, I gave many away to friends; kept about two dozen special ones; and traded the rest to McKay Used Books. “Papers” turned out to be easier than I expected. I kept original tax returns, property deeds, insurance policies, and my Last Will and Testament. For everything else, I bought a scanner, two external hard drives, and a fireproof safe. Voila, digital storage. Kitchen, garage, attic – by the time I reached these categories, tossing extraneous, corroded, out of date, “As Seen on TV,” and used-only-once items was not difficult. I choked when it came to memorabilia. I just boxed up everything and vowed to sort through it later. My second round of decluttering involved renting a storage unit into which I stuffed all manner of furniture and personal nick-nacks. Having now lived eight months in a decluttered home, I rather enjoy


the minimalist environment. My home is easier to clean and absolutely less stressful. As for attorney-parents who want to throttle me right now for promoting fantasies, I say you too can declutter. Children outgrow clothing almost monthly; sell or give them (the clothes, not the children) away. When Katie was 12-years old, I asked her to gather together her considerable collection of stuffed animals. I told her that some of the children who went to see Judge Tim6 might like a stuffed animal to love and take home. She eagerly sorted through her collection, and we took five bags of stuffed animals to Juvenile Court. I’m not sure about Legos, but you might want to call Juvenile Court and ask. Swedish death cleaning is my current project. First, understand that china, silver, table linens, and crystal stemware were the currency of my and my mother’s generation. Over 40-some years, I have collected and inherited many beautiful pieces. In an effort to downsize, I consulted antique stores about placing items on consignment. I was discouraged to learn that the market for such items was quickly disappearing. The younger generation, I’m told, prefers easily available, disposable, and replaceable items. Think “Target.” Enter Swedish death cleaning. In Swedish, the word is “döstädning”: a combination of the word “dö” (which means death) and “standing” (which means cleaning). It refers to minimizing the amount of stuff that you leave behind for others to deal with after you die. Perhaps only those of us who have had to clean out the home of a loved one can appreciate what a burden it is to dispose of decades of someone else’s “stuff.” Ask yourself one simple question: “Will anyone be happier if I save this?” One obvious approach is to ask loved ones what they would be keen on keeping. If feasible, go ahead and gift them while you are alive. Otherwise, donate the stuff that no one wants or consider a pre-death estate sale. Use the money to take a trip while you are still mobile. Yes, death cleaning can be all about you! On that happy note, remember less stuff, less stress. http://articles.latimes.com/2014/mar/21/health/la-he-keeping-stuff-20140322. http://www.nytimes.com/2009/09/06/magazine/06self-storage-t.html?em&_r=0. 3 http://usatoday30.usatoday.com/life/television/news/2006-09-21-homes-tv_x.htm. 4 https://blogs.wsj.com/economics/2011/04/23/number-of-the-week-americans-buymore-stuff-they-dont-need/. 5 See https://markmanson.net/self-help. 6 For a time, I practiced law with now-Juvenile Court Judge Tim Irwin. Katie recalls that he was nice and “really big.” 1 2


March 2018

barrister bullets MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of every month at the Bistro by the Bijou (807 South Gay Street). Social time begins at 5:00 p.m., and the meeting begins promptly at 5:15 p.m. The next meeting will be held on March 14, 2018. There are many opportunities to get involved, so please contact Barristers President Mitchell Panter (tmp@painebickers.com) or Vice President Mikel Towe (mtowe@lewisthomason.com) for more information. ACCESS TO JUSTICE The next Veterans Legal Clinic is scheduled for noon on March 14, 2018, at the Knox County Public Defenders’ Community Law Office from 12:00 p.m. to 2:00 p.m. If you are interested in signing up for the Veterans Clinic, you can do so on the KBA’s website: https://www.knoxbar.org/index. cfm?pg=Upcoming-Legal-Clinics. The next Tennessee Faith & Justice Alliance Legal Advice Clinic will be on April 7, 2018 at Second United Methodist, 1524 Western Ave, Knoxville, TN 37921. In the Knoxville area, the program is coordinated by the Knoxville Bar Association’s Access to Justice Committee, Legal Aid of East Tennessee, the University of Tennessee College of Law, and the generous lawyers, law students, and others volunteering their time and talent. If you are interested in signing up for the Legal Advice Clinic, please register on the KBA’s website: https://www.knoxbar.org/index.cfm?pg=UpcomingLegal-Clinics. ATHLETICS Join the Knoxville Barristers for the 1st Annual Barristers “Bowlable Hours” (Bowling Night) on April 19, 2018 from 6:00 - 8:00 p.m. at Main Event, located at 9081 Kingston Pike. Registration is open to all KBA Members, Law Students, Spouses and Friends. Pricing is $25 per person and it includes 2 hours of bowling, bowling shoe rentals and food/beverage by Main Event. Cash Bar will be available. Prizes for highest score, most strikes in a row, and more! If you are interested, you can register through the KBA website. Registration is required by April 11th. HUNGER & POVERTY Spring Cleaning? Make room in your closet and help others at the same time! Barristers Hunger & Poverty Relief Committee is collecting Professional clothes through April 9-23. Items needed are slacks & skirts, suits, blouses & shirts, dresses, ties, dress shoes. Multiple donation locations will be available including Gay Street, Main Street, law schools, and West Knoxville. Please do not donate clothes with holes, stains or rips. Women’s clothing will be donated to the YWCA and Connect Ministries Career Closet. Men’s Clothing will be donated to Knox Area Rescue Ministries. For more information please contact Courtney Houpt (crhoupt@gmail.com) or Meagan Collver (mdaviscollver@londonamburn.com). LAW WEEK The Law Week and School Outreach Committee is also seeking nominations for the Law & Liberty Award. All nominations must be received by April 13, 2018. 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 nonlegal community, set an example of good citizenship, give time for volunteer work, both within the legal profession and otherwise, evidence high professional standards in his or her occupation, express concern for the safeguard of personal, political, civil, and religious liberties and should 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 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. Finally, please pass this request to others in your firm and ask that they also submit their suggested nominees to Luke Ihnen (lihnen@ londonamburn.com). MEMBERSHIP Please join us for the Barristers and KBA Happy Hour on March 1, 2018 from 5:00-7:00 p.m. at Elkmont Exchange, located at 745 N. Broadway. Elkmont Exchange is a new local brewery with great beer and food. Come out and have a drink with your friends and colleagues! VOLUNTEER BREAKFAST The Volunteer Breakfast Committee would like to thank Tarpy, Cox, Fleishman & Leveille, PLLC, for sponsoring the March 2017 breakfast at Volunteer Ministry Center. The Committee also appreciates Mitchell Panter, Courtney Houpt, and Mikel Towe for preparing and serving the breakfast to individuals in need with the members of the Committee. The Volunteer Breakfast is a Barristers’ project. On the fourth Thursday each month at 6:15 a.m., the Barristers’ and their volunteers serve breakfast to individuals participating in the services of the Volunteer Ministry Center. If you are interested in sponsoring a breakfast or volunteering to prepare and serve breakfast, please contact Paul E. Wehmeier at pwehmeier@ adhknox.com, Matthew Knable at knablelaw@gmail.com, or sign up on the Knoxville Bar Association’s website at https://www.knoxbar.org/ index.cfm?pg=volunteer-breakfast-sign-up.

March 2018



LAWYER HOBBIES By: Katheryn M. Ogle McDonald, Levy & Taylor

SPECIAL CHILDREN, SPECIAL DREAMS THE DREAM CONNECTION In previous columns, I’ve discussed the importance of giving back to the community, and the distinct opportunities that we as attorneys have to contribute our talents and skills to the greater good. After reflecting on the numerous charitable events and organizations devoted to improving the lives of others, I also noticed that on the Board of Directors for any given non-profit entity, there were many of our own Knoxville Bar Association members. One charity in particular has gained my interest and utmost respect with each of their charitable acts. The Dream Connection is a non-profit organization that exists differently than many charities of its kind. For starters, there isn’t an Executive Director, or any paid employees at all. The Dream Connection thrives solely on the work of volunteers. There are no traditional expenses, such as those of an office, or other general expenses normally associated with such an organization. The Dream Connection donates time, money, and in-kind gifts towards making children’s dreams a reality. First Tennessee Bank in Knoxville provides a grant to fund The Dream Connection’s telephone “Dream Line.” In addition, other expenses such as post office box rental, printing supplies and postage are funded through direct grants associated with volunteer board members or the local business firms they represent. Operated solely by a volunteer board of directors, an advisory board, and other concerned citizens, The Dream Connection volunteers donate their time and efforts to raising funds that make dreams come true for the special children impacted by the organization. Even the organization’s meetings are held in a location that is donated, and the lunch provided to volunteers during the meeting is also donated by a different local caterer for each meeting. The Dream Connection began in 1985 when local attorney and KBA member Farrell Levy was asked to draft incorporation documents for the entity. B.J. Price explained to the attorney that the purpose of the organization would be dedicated to fulfilling the dreams of children who had been diagnosed with life threatening or chronically debilitating illnesses. The group would serve children who were residents or receiving treatment here in East Tennessee. After hearing about this mission, Farrell Levy not only donating his time in drafting the necessary

documents, but he also paid the filing fee and joined The Dream Connection. More than thirty years later, he is still involved with the organization, and recently completed another term as President of the Board. He not only remains actively involved, but has also recruited his daughter, attorney Carolyn Levy Gilliam to volunteer on the Board of Directors. On average, The Dream Connection fulfills dreams for thirty-five children each year. One dream in particular that was recently fulfilled is one that Carolyn Levy Gilliam distinctly remembers. “A little girl named Lilly shared with us that her dream was to meet the band Pentatonix. Not only was The Dream Connection able to make that dream come true, but Lilly and her family stayed at a local hotel and rode in a limousine to the show. My involvement with this organization has allowed me to meet many special children and families.” Through The Dream Connection, other local children have had the opportunity to visit Disneyworld, meet professional wrestlers, experience NASCAR races, and even have personalized tours via helicopter. This organization is truly unique, and fellow KBA members have a special role in supporting its mission. If you’re interested in becoming involved with the organization or would like to refer a child visit www. dreamconnection.org.

Lilly, a Dream Connection child, meets the group “Pentatonix.”



March 2018


THE SUICIDAL CLIENT: WHAT ARE YOUR ETHICAL DUTIES? According to the American Foundation for Suicide Prevention, suicide is the 10th leading cause of death in the United States. Almost 45,000 people die by suicide in the United States each year. The national suicide rate is about 13.5 for every 100,000 individuals, but Tennessee’s suicide rate is even higher: about 16.3 suicides for every 100,000 residents.1 What are your ethical duties if your client threatens to commit suicide? Two of Tennessee’s Rules of Professional Conduct are relevant: Rule 1.6(c) and Rule 1.14(a). If a lawyer learns of a client’s intention to commit suicide in the course of representing the client, that information is likely to constitute “information relating to the representation” under Rule 1.6(a), which prohibits disclosure except under certain circumstances. Rule 1.6(b) outlines a number of situations in which a lawyer is permitted to disclosure such information, but subsection (c)(1) of Rule 1.6 requires disclosure “to the extent the lawyer reasonably believes disclosure is necessary . . . to prevent reasonably certain death or substantial bodily harm.” Although this provision can apply to a Tarasoff-type situation, in which a client threatens harm to another, it can also apply to situations in which a client threaten self-harm.2 Tennessee is in the minority of states that require disclosure to prevent death or substantial bodily harm. Most states make disclosure discretionary, not mandatory. But to whom must the lawyer make the required disclosure? Rule 1.6 does not provide much guidance on this issue, although Comment [17a] mentions disclosure to “the authorities.” For more guidance on the reporting requirement, it is helpful to look to the second relevant Rule of Professional Conduct.


By Judy M. Cornett

UT College of Law

“Rule 1.14 allows the lawyer to take steps to preserve the status quo if she has a reasonable belief that the suicide threat is the result of a mental disorder or disability that makes the client incapable of making a rational decision about the important matter of deciding to continue living.”4 If the lawyer reasonably believes the client has diminished capacity and “cannot adequately act in [his or her] best interests,” the lawyer is permitted to “take reasonably necessary protective action.” In the case of the suicidal client, the protective action under Rule 1.14 is obviously aimed at preventing the suicide, just as the disclosure required by Rule 1.6 (c) is aimed at preventing death or substantial bodily harm. Massachusetts Bar Ethics Opinion 01-2 suggests that protective action in the case of the suicidal client could include “notifying family members, adult protective agencies, the police, or the client’s doctors in order to prevent the threatened suicide . . . .”5 Disclosure to any of these entities would probably satisfy the lawyer’s mandatory duty of disclosure under Rule 1.6( c) as well. In determining which individual or entity should receive the disclosure the lawyer must use discretion and good judgment. Comment [5] to Rule 1.14 counsels: In taking any protective action, the lawyer should be guided by such factors as the wishes and values of the client to the extent known, the client’s best interests and the goals of intruding into the client’s decisionmaking autonomy to the least extent feasible, maximizing client capacities and respecting the client’s family and social connections. Although the Comment counsels that one of the lawyer’s goals should be intruding as little as possible into the client’s decisionmaking autonomy, the mandatory nature of disclsoure under Rule 1.6(c) with the ultimate goal of preventing the suicide makes it likely that, to be effective, any protective action under rule 1.14 would need to be intrusive enough to disrupt the cleint’s intention to commit suicide. Nevertheless, both Rule 1.6 and Rule 1.14 authorize the disclosure of confidential client information only “to the extent reasonably necessary” to prevent the suicide. In summary, the Tennessee Rules of Professional Conduct recognize “the overriding value of life.”6 When a client threatens to commit suicide, the Rules require the lawyer to disclose information to the extent reasonably necessary to prevent the self-harm. In determining who should receive the disclosure, the lawyer should consider family members, doctors, and social service agencies. The phone number for the National Suicide Prevention Lifeline is 1-800-273-8255.

Rule 1.14(b) and (c) provide as follows: (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by RPC 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under RPC 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests. Because suicide is obviously poses a “risk of substantial physical harm,” the primary determination under Rule 1.14 is whether the lawyer “reasonably believes that the client has diminished capacity.” Arguably, the fact that the client is suicidal could, by itself, indicate that the client has diminished capacity, but there are also situations in which suicide could seem like a rational choice. For example, a terminally ill client suffering from a progressively debilitating disease could see suicide as a way of preserving assets and avoiding pain.3 Fortunately, in making this assessment, the lawyer is not required to make a precise medical evaluation. According to a Massachusetts Bar Ethics Opinion 01-2,

1 American Foundation for Suicide Prevention, Suicide Statistics, available at https://afsp. org/about suicide/suicide statistics/ 2 See Philadelphia Bar Association, Professional Guidance Committee, Opinion No. 2014-9 (Dec. 2014) (opining that client’s threat of suicide does fall within exception to disclosure for prevention of “death or substantial bodily harm”). 3 Massachusetts Bar Association, Ethics Op. 01 2 (Feb. 2001). 4 Id. See also Tenn. R. Prof. Conduct 1.14, comment [6] (“In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long term commitments and values of the client.”) 5 Massachusetts Bar Association, Ethics Op. 01-2 (Feb. 2001). 6 Tenn. R. Prof. Conduct 1.6, comment [1.17a].

If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. March 2018





March 2018

O F T H E R M O M E T E R S A N D T H E R M O S TAT S By: Melissa B. Carrasco Shareholder, Egerton, McAfee, Armistead & Davis, P.C.

THE CODE In October 1991, twenty-one-year-old Joseph started working 1998, within months of each other. as a roustabout on an oil rig. It was an all-male work-crew, living and Joseph’s case went all the way to the U.S. Supreme Court resulting working together in very close quarters on a floating platform in the in the landmark decision, Oncale v. Sundowner Offshore Services, middle of the Gulf of Mexico.1 Inc., which held that same-sex sexual harassment was actionable sex After a while, Joseph’s supervisor and two co-workers began to discrimination under Title VII of the Civil Rights Act of 1964.7 Rena’s case, on the other hand made the legal community sit up and take notice, tease him. The comments were sexual in nature, and Joseph ignored at least for a time. them. Then, the men began threatening to rape him. They held him When Oncale was decided, one of the concerns was that Title VII down while one exposed himself near Joseph’s face. They assaulted him would be transformed “into a general civility code for the workplace.”8 in the shower, shoving a bar of soap in his butt. Joseph went to the rig’s After all, we don’t want to confuse “ordinary socializing in the workplace administration for help, including the rig’s Safety Compliance Clerk. – such as male-on-male horseplay or intersexual flirtation” with The Clerk was dismissive. After all, the Clerk said, said those guys picked discrimination.9 The Supreme Court agreed, and rather than a “civility on him all the time as well. Joseph quit.2 Then, he filed suit. A few months earlier, in July, 1991, Rena began work as a legal code” for the workplace, they gave us two questions. secretary at a large, international law firm. About three weeks into her First, are you treating people of different sexes the same? In other employment, Rena, the male partner she supported, and a few other words, do the comments, gestures, or conduct seem to be directed people went to lunch together. After the lunch, the partner gave Rena at people of one sex but not the other?10 Second, are the comments and conduct objectively offensive from the recipient’s point of view, some M&M candies, which Rena put in the breast pocket of her blouse. considering the context in which the comments and conduct occur?11 The partner then, reached into her pocket, dropped in a few more The Supreme Court seemed confident that we could “distinguish candies, and then asked, “Let’s see which breast is bigger.” The next day, between simple teasing or roughhousing” and “conduct which a he asked her, “What’s the wildest thing you have done?” A week after reasonable person in the plaintiff ’s position would find severely hostile that, he grabbed her butt while she was trying to move some files.3 In August, Rena reported the or abusive” using “common sense, and he sheer number of recent stories about attorney’s behavior to the office an appropriate sensitivity to social manager of the Palo Alto office where context.”12 workplace harassment may call into The sheer number of recent she worked. Rena was transferred question the Supreme Court’s wisdom in stories about workplace harassment to work for a paralegal and another declining to adopt a “civility code” twenty years may call into question the Supreme attorney. Although she saw the male ago. Court’s wisdom in declining to adopt attorney less frequently, he would a “civility code” twenty years ago. But, walk up to her desk and stare at her. it seems that, at the very least, the professionals who practice within the In September, as part of her three-month review, the office manager Knox County Bar could adopt their own, internal “civility code” with told Rena “she had not worked out since the beginning and was still common sense and a little sensitivity to the people who work with you not working up to the firm’s expectations.” Rena quit before the end of and around you. We already have a civility code of sorts, the KBA’s September.4 Rena sued. As it turns out, Rena’s complaint was not the first one Guidelines for Professional Courtesy & Conduct adopted in 2002. But, these made against this attorney. In fact, it wasn’t even the second or third. guidelines only apply to interactions between attorneys. With a little Rena was the tenth female employee – including a female associate – common sense, we could apply that kind of internal civility code to the who had complained to the Firm’s administration about this attorney people in our firms who work with us every day – whether attorneys or making unwelcome sexual comments and sexual advances and touching support staff. That is how thermostats set the temperature at their own them inappropriately. The attorney was not asked to resign until 1993 – firms. two years later – and only after a paralegal testified that the attorney was back-dating documents.5 1 See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998); Oncale v. A jury awarded Rena $50,000 in compensatory damages, $250,000 Sundowner Offshore Servs., Inc., 83 F.3d 118 (5th Cir. 1996); see also Lee Cowan, in punitive damages from the male attorney, and $6.9 million in punitive Offshore Oil Rig: Island Living, but no Paradise, CBS News (May 20, 2012), https://www. cbsnews.com/news/offshore-oil-rig-island-living-but-no-paradise, last visited Feb. 10, damages from the law firm. The trial court reduced the punitive 2018. 2 damages award to $3.5 million, and then it awarded Rena $1.8 million Oncale, 523 U.S. at 77; Oncale 83 F.3d at 118-119. 3 Weeks v. Baker & McKenzie, et al., Case No. A068499 (Cal. Ct. App. 1998), available at in attorneys’ fees and expenses. The Court of Appeals affirmed on http://caselaw.findlaw.com/ca-court-of-appeal/1064697.html. all grounds except for the attorneys’ fees award. The trial court had 4 Id. 5 Id. enhanced the lodestar amount by a 1.7 multiplier, and the Court of 6 Id. Appeals thought the multiplier was a little much.6 7 Oncale, 523 U.S. at 82. 8 The similarities between Joseph’s case and Rena’s case are Id. at 80. 9 See id. at 81. fascinating. Both experienced workplace harassment in 1991. Both 10 Id. at 80. 11 reported it. Neither had employers willing to address the situation. Both Id. at 81. 12 Id. at 82. had their cases appealed, and the appellate decisions were entered in


March 2018



HIDDEN KNOXVILLE By: Angelia Nystrom University of Tennessee Institute of Agriculture

THE MCCLUNG MUSEUM OF NATURAL HISTORY AND CULTURE If you know me well, you know that I am a bit of a germaphobe. I’m a huge proponent of handwashing, and I am even more particular when it comes to restrooms. When traveling, I have been known to make multiple stops in order to find a restroom that I deemed “clean enough.” And I would almost rather die than use a porta-potty. It is that aversion to germs and porta-potties that led me to the hidden treasure that is the McClung Museum of Natural History and Culture. A number of years ago, while tailgating at a UT football game, I was in need of the “facilities.” Knowing my aversion to the outdoor toilet, one of my friends suggested that I go the McClung Museum because “It’s open, and it has a bathroom.” While I was glad to visit the restroom, I was even more delighted to discover the McClung Museum – and even stayed, visiting the exhibits, until it closed. If you are unfamiliar, the McClung Museum is an amenity like no other in the region. A Smithsonian affiliate, the McClung Museum is a local treasure because of its vast and varied collections. Although a museum of anthropology was first proposed in the 1930’s when the University of Tennessee took a lead role in the excavation of Native American sites affected by the building of the TVA dams, the museum was not funded until years later. Funds for a permanent museum became available in 1955, through a bequest from prosperous attorney and world traveler John Webb Green and his wife, Ellen McClung Green. They named the museum project as a memorial for Mrs. Green’s father, Frank H. McClung, a wealthy 19th century Knoxville merchant. Using the directions contained in the bequest, the museum is designed to “… tell a simple connected story of the natural earth, and of the people on earth, particularly that part of the earth and its people that is the state of Tennessee.” In addition to its campus purposes, the museum is intended to reach out to the people of the state and the nation. Located on Circle Park in a Barber-McMurry designed modernist building, the McClung Museum is open to the public seven days a week (excluding holidays). Admission and parking are free, and visitors are greeted by “Monty,” a bronze cast of an Edmontosaurus, which was a duckbilled dinosaur who once roamed North America. Monty’s actual fossilized bones are owned by the museum and are sometimes on display. Once inside, visitors can view The Vine, a large bronze statue of a dancer by the American sculptress Harriet Whitney Frishmuth, which is set in a fountain. They can also see the stained glass from the home of Henry Hudson, which was located on the site where the museum now sits. The museum boasts a number of permanent exhibitions, including exhibits about geology, paleontology, evolution, ancient Egypt, and Native American culture. In recent years, the museum has also developed an emphasis on local history. A compact permanent exhibition now highlights Knoxville’s role in the Civil War, with an unparalleled display of artifacts from the 1863 Battle of Fort Sanders. Trace’s favorite exhibition is “Ancient Egypt: The Eternal Voice.” The exhibit includes original objects that shed light on the daily life, religion, and writings of the ancient Egyptians. It also features objects associated with mummification and burial. Visitors can view a coffin that once belonged to a priestess of the god Amun, as well as animal mummies (including a mummified cat!).


My personal favorite exhibition is “The Decorative Experience,” which features 175 decorative and household items from the museum’s collection that embody an aesthetic component. These items come from cultures and societies throughout the world and range in age from 2400 BC to the 21st century. Every type of medium is represented, including ceramics, textiles, stone, metal, glass, wood, paint, bone, shell and a combination of these. In addition to objects from Africa and Asia, the exhibition also includes artwork from the indigenous people of the Americas. My personal favorite, however, is the area that includes decorative items from Europe and the United States, including articles by familiar crafters like Limoges, Tiffany, Wedgewood and Lalique. Each piece in the collection is unique, and they are all truly beautiful. Other permanent exhibitions include Tennessee Freshwater Mussels, Human Origins, Geology and Fossil History of Tennessee, Archaelology and the Native Peoples of Tennessee, and The Battle of Fort Sanders. In addition to the permanent exhibitions, the McClung Museum also features special exhibitions. Beginning March 23 and running until August 19, the museum will feature “Pick Your Poison: Intoxicating Pleasures and Medical Prescriptions.” This exhibition will explore why some drugs remain socially acceptable while others are outlawed because of their toxic, and intoxicating, characteristics. It will feature over forty medicines, advertisements, historic and popular culture documents and books, video footage and paraphernalia. Through these items, visitors will see some of the factors that have shaped the changing definition of some of our most potent drugs – alcohol, tobacco, opium, cocaine and marijuana – from medical miracle to social menace. The museum also features a wonderful gift shop. The museum store carries a wide selection of unique items, including local art, jewelry, books, one-of-a-kind gift items, stationery, and educational toys, including items that pertain to current exhibits. Proceeds from all purchases support the museum’s educational programs. The McClung Museum is one of our local treasures that is “hidden in plain sight.” If you have never visited (or if it has been a while since you last visited), please take time to check out the exhibitions at the museum. Admission is free, and parking is free (and is located within steps of the museum’s door). You won’t be disappointed in this hidden gem.


March 2018

WELL READ By: Luke P. Ihnen London & Amburn, P.C.

BOOK REVIEW: THE BLOOD OF EMMETT TILL On Wednesday evening August 24, 1955, a precocious fourteen-year-old Emmett Till entered Bryant’s Grocery and Meat Market in Money, Mississippi. Emmett was visiting his uncle Reverend Moses Wright for the summer and went to the store for some candy and a drink after spending the day picking cotton with his cousins. Carolyn Bryant, the twentyone-year-old wife of Roy Bryant, was working the store while her husband was out. Although Emmett was from Chicago he was undoubtedly aware of what being black in the South meant. Black boys in the South were supposed to act a certain way around white folks. And they were not supposed to talk to white girls. The truth of what happened in the store may never be known. Whatever happened, it ultimately led to the kidnapping, torture, and lynching of Emmett Till. In The Blood of Emmett Till, Timothy B. Tyson goes to painstaking detail to tell the story of the events surrounding the lynching. Part crime-thriller, part historical text, the book forces us to relive our painful history with race. And it serves as a reminder that we are not far removed. Like every good story it has heroes: Mamie Till, Emmett’s mother, whose insistence on an open casket funeral helped shock the conscience of the nation; Reverend Wright and the other state’s witnesses who fearlessly identified the men who kidnapped and lynched Emmett, knowing it could lead to their own death; and Judge Curtis Swango, the surprisingly “fair-minded and even-handed” presiding judge. It also has villains: Sheriff H. Clarence (H.C.) Strider, the sheriff of Tallahatchie County and every bit the caricature of a 1950s southern sheriff; and Roy Bryant and J.W. Milam, the men responsible for the lynching. Emmett Till was lynched for flirting with Carolyn Bryant – an offense most fourteen-year-old boys would be guilty of. Only Emmett flirted with a young white woman in 1950s Mississippi. It was a mortal sin. And it was enough for an all-white jury to acquit his murderers. Carolyn Bryant admits to fabricating parts of her story, including that Emmett grabbed her around the waist and told her that he had been with white women before. But as Tyson discovers, she is unsure of what the truth really is. When you tell a story for long enough it starts to seem true, even if it is not. What is true, according to Bryant, is that “nothing that boy did could ever justify what happened to him.”1 Few events have altered our nation’s history like the lynching of Emmett Till. The images of his swollen and maimed body in newspapers and magazines across the country galvanized a generation of civil rights activists to stand up to the evils of Jim Crow and de facto segregation. The book is an important read for lawyers. Emmett was not afforded equal justice under the law. Quoting from Tyson, “Faith in our courts and our laws, in the statement chiseled above the columns of the U.S. Supreme Court building – ‘Equal Justice Under Law’ – can obscure the obvious, particularly with the passage of time.”2 We have taken an oath to support the Constitution of the United States and the Constitution of the State of Tennessee. That means equal justice under the law, for everyone. The book also serves an important moral lesson. The other villain in the story is, in the words of Dr. King, “the white moderate”3 - the Mississippians and millions of Americans who chose to remain silent in the face of injustice. More than systematic racism and the public officials who fought to preserve it, the white moderate was responsible. Emmett Till would be 77 years-old in July. We are not so far removed that we can afford to turn a blind eye to the injustices of today. March 2018

In the words of Dr. King, “We will have to repent in this generation not merely for the vitriolic words and actions of the bad people but for the appalling silence of the good people.”4 When asked to comment on the outcome of the trial, William Faulkner, the Nobel Prize winning novelist and Mississippi’s favored son responded, “If we in America have reached the point in our desperate culture where we must murder children, no matter for what reason or what color, we don’t deserve to survive and probably won’t.”5 Timothy B. Tyson, THE BLOOD OF EMMETT TILL 7 (2017). Id. at 165. 3 See Martin Luther King, Jr., Letter from Birmingham Jail (Aug. 1963). 4 Id. 5 Tyson, supra note 1, at 209. 1




Sarah C. Atkinson Scripps Networks Interactive, Inc. Lisa K. Bailey McKinney & Tillman, P.C. Justin S. Bell The Bell Law Firm Zachary J. Burkhalter The Burkhalter Law Firm, P.C.


Barbara K. Doolittle Paine | Bickers LLP Darrell L. Douglas Law Offices of Peter Angelos

Ragan E. Holloway Griffin & Davis, PLLC

William J. Sivyer Ogle, Elrod & Baril, PLLC

R. Arthur Jenkins

Eleni Vatsis Stratigeas Scripps Networks Interactive, Inc.

Kelly Prince Mann Holifield Janich & Rachal, PLLC Timon Marshall Scripps Networks Interactive, Inc. Andrew W. McRee Lincoln Memorial University - Duncan School of Law Jordan H. Murray District Attorney General, 6th Judicial District

Jacob D. Ens Paul A. Forsyth Pitts & Lake, P.C. Kendell M. Garrett Paine | Bickers LLP Daniel R. Goodge Cantrell, Goodge & Associates Bryce M. Hardin Chelsea Harris The Law Offices of James A.H. Bell, P.C.

Jesse D. Overbay DoctorsManagement, LLC Carter J. Pack Knox County Public Defender’s Community Law Office Robert Joseph Parkey, Jr. FTN Visa Mital D. Patel General Knox Law, P.C.

Elizabeth Adair Townsend Jackson Sjoberg & Townsend, LLP Natalie Sue Walker Special Investigation Services, Inc. Stephen C. Walling Law Offices of McGehee & Cole, P.C.

NEW LAW STUDENT MEMBERS Jessica M. Conine Diann M. DeJulia Brittany N. Eads Daniel Hererra Robert Leaird Hillary L. Magacs Mary J. Newton

Abigail Ellis Ruiz The Adams Law Firm


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

SHREDDING THE CONSTITUTION Some time ago, I interviewed a high school senior who was applying to my alma mater. I’ve conducted such interviews for decades, and I usually enjoy them. The young people I meet are so idealistic, so accomplished, so interesting. This interview was different. The young woman sitting across from me was interested in politics. That’s great. I’m interested in politics, too. Soon, however, she began thoughtlessly reciting a list of what are commonly called “talking points.” One of them made my ears prick up. The “other side,” she said, was “shredding the Constitution.” I was honestly curious. What parts of the Constitution was the “other side” shredding? She hesitated. She hemmed and hawed. “Well, I . . . I’m just learning about this stuff.” I gently probed. Eventually, I asked, “Have you ever read the Constitution?” Her face got red. “Well . . . I’ve read . . . like . . . parts of it.” I reached onto my bookshelf, where I keep a stack of pocket Constitutions published by James Madison’s historic home, Montpelier. I hand them out like candy. I slid one across my desk. “Every American,” I told her, “should read through the entire Constitution at least once in her life.” I truly believe that. But I also know that reading through the Constitution (which one can do in about an hour, with at least basic understanding) is only the beginning. Indeed, the text of the Constitution is the first day’s assignment in my introductory Constitutional Law class. Then we begin our studies. But how many Americans have actually read our most basic law, the document that literally created our national government, that protects our most cherished rights? Have you? I know many people who have. They are young – students in high school and middle school, some no more than eleven years old. These young people participate in what is, to my mind, the best civics program in the United States. It’s called “We the People.” Established in 1987, the Constitution’s Bicentennial, We the People is many things: it’s a civics curriculum, it’s the framework for extracurricular clubs, and it’s an interscholastic competition in which students from all over the country compete with each other in simulated congressional hearings, making brief presentations and answering difficult questions from panels of volunteer judges. Over most of the past decade, I’ve had the honor of judging We the People competitions at the regional, state, and national levels. Nationals are particularly cool – not only is the level of competition at its highest, but the surroundings are remarkable: The final round is held in the House of Representatives in Washington, in the very rooms where real congressional hearings take place. I’ve posed difficult and detailed questions about everything from Montesquieu to Roy Moore. These kids have knocked my socks off. Well, mostly. Sometimes, of course, they get things wrong, like the high school team that insisted, on one notable occasion, that the Constitution does not protect “offensive” speech. That got my attention. So, I posed a hypothetical based upon Cohen v. California,1 in which a


young man named Paul Cohen was arrested for writing some (ahem) offensive words on the back of his leather jacket. The students, and their parents, were stunned to learn that the Supreme Court of the United States has declared that the First Amendment protects your right to drop the f-bomb. But even that blooper was a teachable moment. I was gratified when the errant team sought me out after the competition was over, wanting to discuss the Speech and Press Clauses in greater depth. Or perhaps they were just trying to get me to say some other dirty words. Most of my judging experience has been in Virginia, where I taught before coming to LMU. Virginia is a perennial powerhouse, winning the national title several times, and almost always finishing in the Top Ten. Lately, I have also begun volunteering here in Tennessee, which, I’m sorry to say, has not done as well. At least not yet. The dedicated staff of the Tennessee Center for Civic Learning and Engagement is trying to change that, and I’m trying to help. Over the next few months and years, I will be asking for your help, too. As Tennessee’s We the People program grows and develops, we’ll need knowledgeable and dedicated volunteers to serve as judges, timers and coordinators. It won’t take up much of your time – volunteering at a regional competition might take up one Saturday a year. But I guarantee that it will be worth it. You’ll learn more about the Constitution than you ever thought you’d know. And you’ll pass on that knowledge to the next generation. The stakes are high. Indeed, as Paul Cohen might say, if we fail to understand our own Constitution, if we fail to teach our children about it, then our country will be completely . . . . Well, you get the idea. 1

403 U.S. 15 (1971).

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


March 2018


Jason H. Long London Amburn

MOVIE LAW 101 Does your law degree frustrate your ability to enjoy legal dramas? While I enjoy a courtroom thriller as much as anyone, I have to admit that sometimes I find myself over-critiquing these films. Warning, there are spoilers in this article. Take, for example, a movie Carol Anne and I were watching last week: The Verdict. Written by David Mamet and starring Paul Newman, The Verdict is easily one of my favorite all-time legal dramas. When you mix in the fact that it centers around a medical malpractice (excuse me, I should say “health care liability”) claim, it is no wonder that I watch it whenever I can. A quick set up is necessary. Paul Newman plays Frank Galvin, a once-brilliant, now burned-out, trial lawyer who solicits clients at funeral homes. Things are not going well for Frank. He does have one good case against an anesthesiologist and surgeon, who performed a routine c-section on his client, and left her in a vegetative state. The lawsuit was brought against the physicians and the Catholic Diocese of Boston, which owned and operated the hospital. These are deep pockets and, initially, Frank is hoping for a quick settlement. Frank ultimately decides that justice requires he try the case and he rejects any settlement offers (with no input from his clients). His case subsequently falls apart. His star expert backs out, the judge is biased against him, and he is facing off against Ed Concannon, a lion of the bar, played brilliantly by James Mason. I have two pet peeves regarding this otherwise classic movie (three if you count the fact that a young Bruce Willis randomly shows up in the audience during closing arguments, looking particularly bored and Bruce Willisy). My first critique concerns support Concannon uses to try the case. The first time we meet him, he is in a conference room preparing the case for trial. Who is with him? Fourteen other lawyers (I counted). That’s right, Ed Concannon, the brilliant defense lawyer, needs fourteen associates to prepare one case for trial. Medical malpractice cases can be complex, but no insurer in their right mind would pay for four, let alone fourteen attorneys to try a case. What’s more, this case does not seem that complex. A single presentation, minimal experts, and everyone seems to agree that the only question is in the administration of anesthesia during the surgery. There can’t possibly be a need for all of these lawyers. I gave Concannon the benefit of the doubt and assumed that perhaps this was a general firm meeting involving many matters. However, thirty minutes into the movie, we see a prep session with one of the doctors and all fourteen lawyers are again present, diligently taking notes. Imagine the legal fees. My second critique comes at the climax of the case when Newman calls the admitting nurse to the witness stand. Concannon, who has never spoken with this witness (apparently none of the fourteen lawyers had time to interview her either), proceeds to ask a series of open ended questions on cross to determine why she documented on the patient’s March 2018

chart differently than her testimony in court. He ends with the classic cross examination question “[w]hy would you do that?” What follows is a diatribe by this nurse about how she was forced out of the profession by the defendant doctors who told her that they would make sure she never worked again if she told the truth. Well played, Mr. Concannon. Worth every penny. I have to give credit to my wife for the next one. She and I watch A Few Good Men religiously when we see it on the tv listings. The story is interesting, it is well-acted and an all around fun movie to watch, but then she ruined it for me. We were watching the film, probably for the hundredth time, when the scene came up where lead counsel Lieutenant Kaffee (Tom Cruise) decides that, for once in his life, he is not going to take the easy way out and enter a plea for his clients. He is going to try the case and establish their innocence. The tension in the air is palpable when Kaffee makes the decision and is cut only when he starts barking orders to his co-counsel about preparing for trial. In rapid succession, he tells them they will be working out of his apartment every night, they should bring their own food, he needs two desk lamps, and he asks Lieutenant Weinberg (Kevin Pollak) to pick up half a dozen boxes of red pens and half a dozen boxes of black pens. I was caught up in the thrill of this defining moment in the movie when my wife interrupted and said “isn’t that a lot of pens?” Well . . . yeah . . . it kind of is. Minutes earlier, the judge informed us that trial would start in three weeks. I googled Amazon and found that, depending on what kind you are getting, pens can come anywhere from 12 to 60 per box. That means that in three weeks, Kaffee believes his small team will need anywhere from 144 to 720 pens. Think about that next time you see Tom Cruise cross Jack Nicholson. I will leave you with one last one and I hesitate to bring it up because it involves the holy grail of legal dramas, To Kill A Mockingbird. Perhaps the closest man has ever come to a perfect movie, it nonetheless has flaws. As we all know, part of Atticus’ (Gregory Peck) defense strategy is to establish that Mayella Ewell was beaten by a righthanded man. In a dramatic moment in trial, Atticus is cross examining Mayella about the beating and rape she suffered. He asks Tom to stand at the defense table and catch a glass with his right hand. Tom says he can’t because his arm was injured when he was a boy. It’s very dramatic and persuasive, but how is it evidence? Tom hasn’t even been sworn in at this point. Atticus is cross examining another witness. How does opposing counsel, or the judge for that matter, let this happen? As Bob Ewell famously said earlier in the movie, “[y]ou got to watch out for tricky lawyers like Mr. Finch.” These examples only scratch the surface of fatal errors in legal dramas. I know we are required to suspend disbelief to enjoy a good movie, but a little technical accuracy would be nice. I mean, really, twelve boxes of pens?



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

Phil Hampton

Founder and CEO, LogicForce Consulting

WHAT WE SAW AT THE 2018 CONSUMER ELECTRONICS SHOW It wasn’t quite Planes, Trains & Automobiles but the 2018 Consumer Electronics Show (CES) had plenty of Drones, Robots & Autonomous Vehicles. An annual must-do event on any techie’s calendar, CES is an exhausting and exhilarating walk through the future of consumer technology. We have been regular attendees for about a decade now; and each year the show gets bigger, more audacious; and more impossible to take in completely. 2018 was not a disappointment except for the occasional onset of claustrophobia resulting from the crush of a record attendance and, of course, the infamous CES power failure which threw over half of the Las Vegas Convention Center into total darkness for two hours. Other than that, we had a blast. So what was hot at CES this year? In a word (actually two), Artificial Intelligence. Of course, Artificial Intelligence (AI) gets tagged to a lot of tech gadgets nowadays whether or not the underlying technology is classic AI or not. Nonetheless, AI figures prominently in the consumer tech world today and even more so tomorrow. For example, Amazon’s incredibly popular Echo “Alexa” voice-activated speaker is called an artificially intelligent voice assistant. And “Alexa” was indeed all over the place in Vegas. It seems that Amazon has raced to the top. Its Alexa system is integrated into numerous consumer products such as refrigerators, lamps, cars, bicycle helmets, lawn equipment, and even toilets. No doubt rival Google has taken note of the explosive growth of the Echo eco-system. Google was promoting its alternative voice AI “Google Assistant” (found on Android phones and Google’s Home smart speaker) with prominent signage at CES on everything from billboards, monorail wraps, and huge banners in the convention center and nearby hotels. It seems that Google wants to be the premiere embedded voice assistant solution for everyday consumer products. We say let Google and Amazon fight it out for voice assistant supremacy. The competition can only mean better products for the consumer. In our opinion, the biggest losers in the voice assistant wars are Apple’s Siri and Microsoft’s Cortana. In addition to more AI, we saw a big growth in the presence of robotics at CES. Don’t worry we didn’t see any as good-looking as us (now that is a low bar), nor any that we felt was a threat to take our jobs. But make no mistake about it, robots are in our/your future. We saw robots as butlers, cleaners, elder care givers, baby sitters, pets, ping-pong players, factory workers, builders, and even laundry folders. Advances in robotic technology coupled with the aforementioned AI make robots increasingly viable to do routine jobs such as serve food, take orders, provide basic customer service, deliver goods, and provide companionship and some level of oversight for children and the elderly. What does that mean for jobs and the economy? A thought provoking book that explores the impact of automation on society is Rise of the Robots by Martin Ford. Ford’s outlook is somewhat more pessimistic than ours regarding joblessness in the future, but we recommend this book as a catalyst for looking at how technology is quickly changing our society. Perhaps the biggest technology societal disruption that is just around the corner is the continued advancement of autonomous vehicle technology. As in previous years, CES 2018 continued to showcase


autonomous vehicles from the big automobile manufacturers that are used primarily for riding/meeting/socializing, not driving. Imagine the inside of a car tricked out like a small conference room, complete with side windows that double as interactive touchscreen monitors. You simply ride down the road oblivious to the route the car is taking since it is being guided by the embedded autonomous driving system. That is the view of the future of cars. Now if you still get your kicks by actually navigating the device you are riding, there were plenty of “rideables” at CES: electric skateboards and scooters, new form factor Segways, and smart bicycles. Who knows? When our cities get clogged with selfdriving cars all over the roads, an electric scooter ride may be the smartest transport mode in town. Maybe it already is. We could go on and on talking about the thousands of gadgets, accessories, software apps, and just purely weird stuff that we saw at CES. However, probably the most encouraging gadgets we saw at CES were products promoting health and wellness as well as providing new opportunities to overcome disabilities. In the health and fitness hall, we saw a lot of tech that will not only make us smarter but healthier as well, including a tiny UV sensor made by L’Oreal that can be worn on your fingernail, a high-tech sleep mask, smart toothbrushes, and a robotic pillow. There were also numerous accessibility gadgets, including smart hearing aids, smartphones for the blind, apps to assist caregivers for the elderly, smart shoes with GPS sensors, and even a device that can translate sign language to spoken English. It’s not lost on the electronics industry that hordes of Baby Boomers are retiring every year and are looking to technology to help them stay healthy and active for many years to come. If we can look forward to having AI robots take care of us, selfdriving cars take us places, and drones deliver food, medicine and other necessities to our retirement home on the beach, well our future senior years don’t look so bad. Bring on the tech.


March 2018

BENCH AND BAR IN THE NEWS How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to Marsha Watson at mwatson@knoxbar.org HOLBROOK PETERSON SMITH PLLC ENDS PRACTICE Holbrook Peterson Smith PLLC ended practice on February 28, 2018. Dan Holbrook, Marshall Peterson, and Andrea (Andi) Anderson continue in practice with other firms: Dan with Egerton, McAfee, Amistead & Davis, P.C..; Marshall with Kennerly, Montgomery & Finley, P.C.; and Andi with Lewis, Thomason, King, Krieg & Waldrop, P.C. Eddy Smith is no longer practicing law and has joined The McLaughlin Group of Merrill Lynch’s Private Banking and Investment Group. We are proud of our 21-year legacy, and our contribution to excellence in law practice. We look forward to continuing as a part of the community in new locations. NEW SHAREHOLDERS Lewis Thomason announces that it has elected 7 new shareholders across the Firm. The new shareholders are: Susan West Carey, Mark Castleberry, Ryan N. Clark, William A. Mynatt, Jr., Casey Shannon, Brad Telfeyan and Peter B. Winterburn. “It is my honor to welcome our new shareholders. Each has shown tremendous leadership and we look forward to their continued contributions to our clients and to our firm,” said Lisa Ramsay Cole, Lewis Thomason president. 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.

MATTHEW’S LEGACY: JUDY SHEPARD’S FIGHT FOR NEW FEDERAL HATE CRIME LAWS On March 7, from 12pm-1pm, the College of Law will be hosting Judy Shepard of the Matthew Shepard Foundation, along with Cynthia Deitle, to discuss the work the organization has done seeking legislation that combats bias and hate crimes. After her son’s death, Judy Shepard was determined to prevent others from losing their children to bias-motivated violence. By sharing her son’s story and her experience, Judy helps create more accepting communities. Programming through UT Law Diversity Week. The program will be held in Room 132 at the UT College of Law. PARALEGAL ASSOCIATION The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, March 8, at 12:00 p.m. at the Blount Mansion Visitors Center, Knoxville, Tennessee. Troy Jones, Esq., of the Law Office of Troy Jones, will be presenting Practicing Law Without a License (Solo/General Practitioner). A lunch buffet is available at the cost of $12/person with reservations. Please contact Caroline Sudlow, ACP, at president@ smparalegal.org or 865-215-3676 for additional information and/or lunch reservations. ONLINE LEGAL HISTORY VIDEOS In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources. OFFICE SPACE AVAILABLE:

• “MOTHER’S ROOM” NOTICE – PLEASE SHARE There is a “Mother’s Room” located on the 3rd floor of the City-County Building (down the hallway marked 311) that is available for anyone who needs to express milk in private while at the City County Building. The space is open to employees of the building and the general public, • so if you, or anyone who works with you or one of your clients, needs to pump breast milk in private while at the City-County Building, the space may be used on a first come, first serve basis. The space has a freezer, microwave sterilizer, large comfortable chairs and lockers have general breastfeeding supplies (tissues, nipple pads, freezer bags for milk, etc.). Mothers are welcome to leave their coolers or bags while they are in court or have business in the building.

March 2018

3,000-plus s.f. of office space near downtown. Easy access. Downtown views. Ample parking. Two suites of five offices, plus five separate offices. Spacious, attractive lobby. Common kitchen. Highly responsive, nonprofit, landlord on premises. Call 865-525-6806 for information. Contact Frank Graffeo at 525-6806. Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 2,000 sq ft. Present floor plan accommodates four offices plus a conference room and a reception area. Would consider dividing space. One Level. Offices on either side occupied by long-term law firms. Two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.


GOING ALL-IN ON DIVERSITY AND INCLUSION: THE LAW FIRM LEADERS PLAYBOOK KBA Members will receive a 30% discount on the price of the book Going ‘All-In’ on Diversity and Inclusion: The Law Firm Leader’s Playbook. Kathleen Nalty is a former practicing attorney who has devoted her professional career to her passion for diversity, civil rights, and inclusion. Over the years, she has advised law firms of all sizes, corporate law departments and government legal offices about ways to make their workplaces more inclusive. Email Kathleen@ kathleennaltyconsulting.com and mention the 30% discounted rate offered to KBA members. The Grandparents As Parents (GAP) program received a generous grant from the Trinity Foundation to produce a guidebook designed especially for grandparents who are raising their grandchildren. If you or someone you know would like to have a copy of the guidebook, or if you would like more information about the program, call Tracy Van de Vate at 865-524-2786. This free book provides information and resources a grandparent needs to know, and addresses the subjects of child care, education, health, custody and legal issues, technology, and other important information. GAP also offers monthly informational and supportive meetings made up of people who understand what it is like to parent a second time.

Address Changes Please note the following changes in your KBA Attorneys’ Directory and other office records: Stephen D. Adams Chambliss, Bahner & Stophel, P.C. BPR #: 030057 605 Chestnut St., Suite 1700 Chattanooga, TN 37450-0019 Ph: (423) 321-0300 sadams@chamblisslaw.com Jason S. Collver Collver Law BPR #: 034187 234 Morrell Road, #301 Knoxville, TN 37919-5876 Ph: (865) 770-3470 Jason@collverlaw.com Susan L. Dominick Knox Co. Juvenile Court BPR #: 018364 3323 Dvision Street Knoxville, TN 37919-3209 Ph: (865) 215-6400 susan.dominick@knoxcounty.org N. Craig Holloway Trammell, Adkins & Ward, P.C. BPR #: 033354 1900 N. Winston Road Suite 600 Knoxville, TN 37919-3606 Ph: (865) 330-2577 craigholloway@tawpc.com


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

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

“Who can LAET help?” (Part Two) Last month, I attempted to give you a little bit of insight into why Legal Aid of East Tennessee attorneys and staff likely frustrate you every time you ask about whether or not someone would qualify for our services. I explained, briefly, how income eligibility is based on a number of factors and that the best way to determine whether someone is income-eligible is for them to contact LAET themselves. Another question we hear often from private attorneys and others community partners is, “if the person owns a house, they can’t qualify for LAET, right?” Once again, the answer is “it depends.” According to 45 CFR 1611.2, “assets” are defined as “cash or other resources of the applicant or members of the applicant’s household that are readily convertible to cash, which are currently and actually available to the applicant.” Furthermore, 45 CFR 1611.3(d)(1) states that “As part of its financial eligibility policies, every recipient [such as LAET] shall establish reasonable asset ceilings for individuals and households. In establishing asset ceilings, the recipient may exclude consideration of a household’s principal residence, vehicles used for transportation, assets used in producing income, and other assets which are exempt from attachment under State or Federal law.” The regulations also allow for LAET’s policies to “provide authority for waiver of its asset ceilings for specific applicants under unusual circumstances and when approved by the recipient’s Executive Director, or his/her designee.” 45 CFR 1611.3(d)(2). If, for example, the person you want to refer to LAET owns a house that is their primary residence, they could still qualify for our services because we can exclude their primary residence from consideration. If they own their primary house and additional real property, they likely will not qualify for our services because only their primary residence may be excluded. However, there is a small possibility that the additional real property may be of low enough value that it will not put them over our established asset ceiling; this is particularly true if it is a small plot of land with no improvements on it. Most of the time, a person who owns their primary residence, as well as another residence will not be asset-eligible for LAET’s services. However, there is an “it depends” aspect to this scenario as well. 45 CFR 1611.3(e) declares that “Notwithstanding any other provision of this part, or other provision of the recipient’s financial eligibility policies, every recipient shall specify as part of its financial eligibility policies that in assessing the income or assets of an applicant who is a victim of domestic violence, the recipient shall consider only the assets and income of the applicant and members of the applicant’s household other than those of the alleged perpetrator of the domestic violence and shall not include any assets held by the alleged perpetrator of the domestic violence, jointly held by the applicant with the alleged perpetrator of the domestic violence, or assets jointly held by any member of the applicant’s household with the alleged perpetrator of the domestic violence.” Therefore, if the person you want to refer to us is a victim of domestic violence, the consideration of asset-eligibility could be different than for someone who is not a victim of domestic violence. The reason for the allowing LAET clients, and those of other LSC-funded organizations to qualify even though they own a house is that there is not an expectation that someone would sell their home to hire an attorney. Also, homeownership does not necessarily equate to an ability to purchase a home. Oftentimes, people who are : income-eligible for LAET’s services and who own their home are upside-down such that if they sold it, they would not have enough money remaining to maintain adequate housing. * March 3 (9:00-12:00) – Knox County Saturday Bar And, keep in mind, there are some grants that allow LAET to serve clients who do at LAET’s Knoxville office (607 W. Summit Hill not qualify under LSC regulations. So, whether or not a person can own property and Drive) still qualify for LAET services, depends.

Mark Your Calendars


March 14 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO


March 17 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County office ___________________________________________

Want to Volunteer?


April 7 (9:00-12:00) – Faith & Justice Clinic/Knox County Saturday Bar at Second United Methodist Church, 1524 Western Avenue


April 11 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO


April 21 (9:00-12:00) – Blount County Saturday Bar at LAET’s Blount County office

Fill out our new Pro Bono Volunteer Survey: https://www.surveymonkey.com/r/DCTWYFS

The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902 phone (865) 637-0484 e-mail:kellis@laet.org fax (865) 525-1162



March 2018

Q: A:


Jack H. (Nick) McCall

Vera, you have now taken and passed three bar exams. Would you mind telling the readers of DICTA about these experiences and if, from your perspective, there is any kind of art or science to taking multiple bar exams, or do they get any easier with repetition? VERA DYGERT

Let me just start by saying that I did not do this for fun. When I graduated from Boston College Law School in 2013, my husband still had several more years left in his Ph.D. program at Brown University. We weren’t sure whether we would stay in New England or move, so I took the Massachusetts bar exam. The irony is that I clerked in Rhode Island and never used my Massachusetts license. In January of 2015, we moved to Austin, Texas where my husband completed a 2-year postdoctoral program, and I took the Texas bar exam in February of that year. Fortunately, I passed and worked for a law firm doing pharmaceutical antitrust litigation and for the Public Utility Commission of Texas where I represented the Commission in contested utility rate cases. Most recently, my husband accepted a tenure-track faculty position at the University of Tennessee, so I took the July 2017 Tennessee bar exam and passed as well. I think the reality for many lawyers, and particularly lawyers married to academics, is that they move around a lot early on in their careers. Fortunately, the administrators and makers of the bar exams in many states seem to realize that a lot of lawyers are more mobile than before. As a result, many states have adopted the Uniform Bar Examination or UBE, whose purpose is to provide lawyers with a portable score that they can use to gain admission in other participating jurisdictions. If you look at a map of the states that have adopted the UBE, most states now use the UBE except those in the South and Midwest (and California). Given that lawyers and spouses live and work in a global economy with increasing needs for job changes and that it’s not realistic to make lawyers take bar exam after bar exam, I think the trend of accepting the UBE in place of a state-specific bar exam is likely to continue. As for the specific bar exams, obviously Massachusetts, Texas, and Tennessee are different states with very different laws. Of the three, the Texas bar examination was particularly hard because the exam was two and one-half days and was more likely to test obscure areas of law in basic subjects like contracts and real property. Texas also tested more subjects overall, including oil and gas law, which is not routinely taught in law school outside of Texas, bankruptcy, tax, and Texas civil and criminal procedure. Finally, unlike Massachusetts and Tennessee, Texas is a community property state. By comparison, I thought the Massachusetts and Tennessee bar exams were more or less straightforward and traditional. What I especially liked about Tennessee’s bar exam – something that I think that many Tennessee lawyers will appreciate – was the required interview with a local attorney as part of the “character and fitness” aspect of the process. Compared to Massachusetts and Texas, that part of the bar application and exam process was unique to Tennessee. I think it is an excellent opportunity for an applicant to learn about the local and state bar and to network. In that sense, it seemed to me to be as helpful to the applicant as to the Board of Law Examiners. And, I actually enjoyed my interview. I wish that the other states had done something similar. So, what’s my parting advice to anyone taking multiple bar exams? As tempting as it is, don’t think you can just walk into the exam room the second time without having studied. Although you can probably study more efficiently in less time, you still have to put in a lot of effort on Exams Number Two or Three. It just does not get any easier after you take your first exam. To my surprise, when I walked out of the second and third bar exams that I took, I did not feel confident that I passed. My advice is to focus on the big picture, don’t let yourself get too caught up in the nitty-gritty details and state-by-state minutiae, and try not to panic. And finally: Don’t do this unless you absolutely have to!

“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.

Photo Ops

On Wednesday, February 7th, members of the KBA Legislative Committee traveled to Nashville to meet with members of the Knox County Legislative Delegation. Legislative Committee Co-Chairs Cheryl Rice and Michael Brezina were joined by KBA President Keith Burroughs, Larry Leibowitz and Keith Stewart.

March 2018





P.O. Box 2027 Knoxville, TN 37901


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